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I noted on Wednesday that Mike Pence’s attempt to avoid complying with a subpoena from special counsel Jack Smith was lampooned even by a conservative lawyer in the National Review.
That lawyer, Andrew McCarthy, called “frivolous” Pence’s reported plan to invoke the Constitution’s “speech or debate” clause, which shields members of Congress from being “questioned in any other Place” for “any Speech or Debate in either House.” Noticeably absent from that clause are vice presidents, the thing Pence was on Jan. 6. But Pence argues that, given his technical role in presiding over the Senate, he should therefore be afforded those same protections.
While I found it noteworthy that a conservative lawyer spoke out against a Republican politician’s legal gambit, what really drew my attention to McCarthy’s article was the man who tweeted it out: J. Michael Luttig, the stalwart conservative and former federal judge who advised Pence ahead of Jan. 6 that he couldn’t overturn the 2020 election, despite Donald Trump’s claims otherwise.
Luttig merely deemed McCarthy’s article “interesting” on Wednesday, but even that signaled to me that he thought there was something to it. So I wanted to flag that Luttig has since followed up with some expanded thoughts on “speech or debate” in a Twitter thread of his own:
It is an unsettled question of constitutional law whether a Vice President of the United States possesses qualified Speech or Debate Clause privileges and protections when he or she serves, in accordance with the Twelfth Amendment, as President of the Senate
Laying out the matter in classic judicial fashion, Luttig observes at the outset that the scope of “speech or debate” protections for vice presidents in Pence’s situation is unsettled. Crucially, however, Luttig opines that, even if a vice president has those protections, they still have to “yield to the demands of criminal process.”
If there are privileges and protections enjoyed by a Vice President when he or she serves as the President of the Senate during the Joint Session to count the electoral votes, those privileges and protections would yield to the demands of criminal process
The bottom line being: even if Pence is able to claim those protections, that doesn’t necessarily mean he wouldn’t have to testify. And while Luttig is no longer on the bench, given the historical role he has played in the matter at hand, his view is worth considering as we potentially head toward litigation to decide this open constitutional question. It doesn’t appear that Pence is heeding the judge’s advice, but the rest of us are free to appreciate it.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
— @judgeluttig (@judgeluttig) February 17, 2023
