J. Michael Luttig, the conservative former judge who famously advised Mike Pence that he couldn’t throw the 2020 election for Donald Trump, has been trying to convince Pence that he can’t get out of testifying in special counsel Jack Smith’s probe.
Or he’s at least trying to convince everyone else of that argument.
Last week, I noted that Luttig, who was appointed to the bench by President George H.W. Bush, took Pence to task in a Twitter thread, critiquing the former vice president’s reported plan to use the Constitution’s “speech or debate” protections to avoid the special counsel’s probe.
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
— @judgeluttig (@judgeluttig) February 17, 2023
Pence’s plan is suspect because those protections apply to members of Congress, which Pence wasn’t on Jan. 6. However, because the vice president technically presides over the Senate, Pence wants to claim those protections to avoid testifying.
Luttig, who doesn’t think much of that plan, has now taken to The New York Times to speak out against Pence’s “gambit,” as he called it (and as I called it previously). He wrote there on Friday:
Inasmuch as Mr. Pence’s claim is novel and an unsettled question in constitutional law, it is only novel and unsettled because there has never been a time in our country’s history where it was thought imperative for someone in a vice president’s position, or his lawyer, to conjure the argument. In other words, Mr. Pence’s claim is the proverbial invention of the mother of necessity if ever there was one.
Importantly, Luttig pointed out that whatever protections Pence has are limited. He went on: Any protections the former vice president is entitled to under the “speech and debate” clause will be few in number and limited in scope. There are relatively few circumstances in which a former vice president would be entitled to constitutional protection for his conversations related to his ceremonial and ministerial roles of presiding over the electoral vote count. What Mr. Smith wants to know about are Mr. Pence’s communications and interactions with Mr. Trump before, and perhaps during, the vote count, which are entirely fair game for a grand jury investigating possible crimes against the United States.
Luttig concluded that Pence would unquestionably be required to testify. “Even if a vice president has ‘speech or debate’ clause protections, they will yield to a federal subpoena to appear before the grand jury,” the former 4th Circuit Court of Appeals judge wrote. Though the ex-judge made a decent case, it remains to be seen whether current judges, including the Republican-dominated Supreme Court, reach the same conclusion if it gets that far. Either way, Luttig’s latest output on the subject represents a significant escalation from the man whose counsel Pence apparently took to heart on Jan. 6, 2021. When it comes to the Smith subpoena, however, it doesn’t appear that Pence is keeping the same counsel. Indeed, depending on what options were available to Luttig, the Times is an interesting place for him to push his case, calling into question whether it’s Pence he’s attempting to convince at this point. On that note, I should point out that The Wall Street Journal editorial board put out a piece last week applauding Pence’s defiance, and providing legal arguments that, while potentially weaker than Luttig’s, are ones Pence may see fit to deploy. At any rate, and perhaps more important, I think we can guess which paper a majority of the Supreme Court is more likely to read — or at least heed.
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.
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