Mike Pence knows better.
He’s an attorney, so he surely studied constitutional law to earn his degree and pass the bar. He is also a career politician who has repeatedly taken the oath to “support and defend the Constitution.”
Yet, in an effort to sidestep the Department of Justice’s criminal probe into the Jan. 6, 2021, insurrection and fake elector scheme, Pence is trying to pull a logic-defying legal switcheroo.
According to Politico, Pence will fight a subpoena issued by Special Counsel Jack Smith ordering the former vice president to testify before a grand jury.
That part is hardly a surprise. Pence — after publicly flirting with the idea of cooperating with the House select committee that investigated the insurrection — ultimately refused to cooperate with congressional investigators. In a November CBS interview, he explained that it would set a “terrible precedent for the Congress to summon a vice president of the United States to speak about deliberations that took place at the White House.” In other words, he asserted an executive privilege to keep mum.
But now he’s taking a different tack. His attorneys will claim that the “speech or debate” clause, which protects lawmakers from having to testify about their legislative duties, protects Pence because on Jan. 6 he was acting as president of the Senate during the electoral vote count.
You really can’t make this stuff up: Pence claimed to be an executive to make an end run around a congressional probe, and now he’s claiming to have been a legislator to dodge a subpoena issued by the executive branch. He’s trying to have his constitutional cake and eat it too.
Whether a vice president can assert a legislative privilege is an issue that hasn’t been presented to courts, much less decided. But it doesn’t make it a hard question. Fortunately, there are plenty of reasons why courts can and should reject this too-clever-by-half maneuver.
The reason Pence is shifting legal theories is clear: While asserting an executive privilege was enough to let him evade the House Jan. 6 committee, it wouldn’t hold up against a DOJ criminal investigation. Courts have been clear about that since President Nixon.
By contrast, when the legislative privilege applies, it usually protects lawmakers from testifying about their official duties even in criminal matters.
But was Pence a legislator in the days leading up to and including Jan. 6, 2021? Of course not.
Pence acknowledged that in his own statement issued on the day of the attempted coup.
“As a student of history who loves the Constitution and reveres its Framers, I do not believe that the Founders of our country intended to invest the Vice President with unilateral authority to decide which electoral votes should be counted during the Joint Session Congress, and no Vice President in American history has ever asserted such authority,” Pence’s statement read. “Instead, Vice Presidents presiding over Joint Sessions have uniformly followed the Electoral Count Act, conducting the proceedings in an orderly manner even where the count resulted in the defeat of their party or their own candidacy.”
In other words, Pence wasn’t a lawmaker because he had no authority to make law. He made no “speech” in support of or opposition to legislation. He engaged in no “debate.” He was only following existing law. Legislative privilege can’t be based on a technicality.
In fact, even real, full-time lawmakers don’t always get to assert it. Just ask Republican Senator Lindsey Graham of South Carolina, who tried and failed to use the privilege to get out of testifying before a grand jury in Georgia investigating the attempts by former president Donald Trump and others to interfere with the 2020 election.
It doesn’t help Pence’s case that he’s already disclosed some details about the events surrounding Jan. 6 in his memoir. If a seven-figure book deal is enough to make him sing, so should be a subpoena.
Most of all, as someone who claims to love the Constitution and respect its Framers, it takes unmitigated gall for Pence to now argue that the nation’s founders created a loophole that would shield the testimony of a central witness to an attempt to overturn election results.
But, as I noted, Pence knows better. He’s not seeking to clarify constitutional law, he’s just starting a months-long court battle as a delay tactic as he readies a likely presidential run. He’s simultaneously desperate to salvage a political career from the ruins of a vice presidency tarnished by Trump and fearful of alienating the GOP’s MAGA wing by testifying against Trump. So he’s buying time by floating a dubious legal theory before the courts and hoping he’ll get away with it. And that is a move straight from Trump’s dirty playbook.
Kimberly Atkins Stohr is a columnist for the Globe. She may be reached at firstname.lastname@example.org. Follow her on Twitter @KimberlyEAtkins.