Washington —When former Vice President was Mike Pence subpoenaed by special counsel Jack Smith, who is investigating possible involvement of former President Donald Trump in the events surrounding the January 6 U.S. Capitol uprising, he will soon announced his opposition to testify. He called the subpoena “unconstitutional”, arguing that under the constitution “the executive branch cannot subpoena officials of the legislature before a court in any other place”.
As Vice President, Pence served on the executive branch during the Trump administration, but also held the unique role of President of the Senate and presided over the joint session of Congress that certified the Electoral College votes in 2020. Based on the responsibilities associated with the election, he invokes the Constitution’s speech or debate clause, which protects members of Congress from questioning about their legislative actions by other branches of the federal government. Pence’s legal team plans to argue that he should not testify, in part because of the duty he performed on January 6, 2021.
“On the day of January 6, I acted as President of the Senate and presided over a joint session that is spelled out in the Constitution itself. So I believe that that speech and debate clause of the Constitution actually prohibits the Executive from forcing me to appear in a court of law, as the Constitution says, or any other place,” Pence said in Iowa this week, “we will abide by that principle and we will take that case as far as it takes, as it takes to the Supreme Court of the United States.”
This argument will likely result in sealed court hearings and legal papers being filed under seal as Pence’s team and federal prosecutors try to convince a federal judge in Washington, D.C., that their interpretation of the law is correct.
A prominent conservative legal voice — whose counsel Pence sought after the 2020 election — has cast doubt on Pence’s legal strategy. Former federal Judge Michael Luttiga staunch conservative jurist who privately told Pence he did not have the unilateral power to overturn Joe Biden’s victory, wrote on Twitter that while the issue raised is an “unresolved question of constitutional law,” any privileges a vice president derives from his or her role in Congress are “few in number and limited in scope.”
Luttig, who testified before a House select committee hearing on Jan. 6 about his advice to Pence regarding the presidential voters, wrote Thursday that any immunity Pence would have under the Speech or Debate Clause would not be enough to to reject the summons.
“If there are any privileges and protections that a vice president enjoys when he or she is president of the senate during the joint session to count the electoral votes, those privileges and protections would give way to the exigencies of the criminal process,” Luttig wrote. . The protections Pence plans to invoke, he argued, probably won’t apply.
CBS News has reached out to Pence’s team for comment on Luttig’s analysis.
Former federal prosecutor and independent counsel Scott Fredericksen says Luttig’s skepticism is justified.
“I don’t think it’s viable,” he said of Pence’s claim to privileges. “Is it an open question? Technically yes, because there has never been a ruling by any court let alone the Supreme Court” on the matter.
But he continued: “I think it’s highly unlikely it would be viable, highly unlikely it would be supported by a court.”
Fredericksen says a few factors weigh heavily against Pence’s claim of privileged status as a legislator: Pence was not an elected member of Congress at the time, and he has repeatedly claimed that his role on January 6 was a ceremonial one.
After a concerted pressure campaign by Trump and his allies to convince Pence to deny Mr Biden’s victory in the joint session of Congress and return the issue to the states, Pence publicly revealed some of his conversations with Trump and characterized his role that day as merely presiding over lawmakers, both of which were likely considered by Smith’s team of prosecutors.
The unique legal strategy Pence is now pursuing may still be a smart one politically, according to Fredericksen, as it could delay any testimony against his former boss just as the presidential primary season gets underway.
A former senior Justice Department official, who spoke to CBS News on the condition of anonymity to speak freely, differs from Luttig in suggesting that Pence’s legal theory has “credibility”.
“The idea that he should have legislative immunity seems likely to be correct,” the former official said, “so far as the question is, ‘did the vice president want information on how to carry out his legislative duties?’ be applicable.”
Still, the former Justice Department official said many questions are raised by Pence’s assertion of this broad and new prerogative, such as the scope of his duties in the Senate and the issues prosecutors are trying to address in questioning.
“I think it’s credible, but whether it will apply is something the courts will sort out,” the former official added.
Pence is not the first Trump official to claim legislative immunity in an attempt to overturn a subpoena. South Carolina Senator Lindsey Graham asked the courts to bar him from testifying before a special grand jury in Fulton County, Georgia, investigation into allegations of election interference by Trump and his allies. Ultimately, a federal judge ruled that Graham had to testify, but that he could avoid questions explicitly about his role as a legislator. The Supreme Court turned down the senator’s request that the matter be considered further.
The former vice president himself was charged in a civil suit brought by Texas GOP Rep. Louie Gohmert on Pence’s role in certifying the results of the presidential election. The Justice Department wrote during the Trump administration, in defense of Pence, that the speech or debate clause could provide protection for the vice president “in his official capacity as president of the Senate.”
And the federal appeals court in Washington, D.C. is reportedly ruling in a classified case involving Rep. Scott Perry and the seizure of his cell phone by federal investigators. The Pennsylvania Republican had previously argued that similar legislative immunity protected him from such acts. There will be a hearing at the end of next week.
Both Fredericksen and the former Justice Department official agree that some of these legal issues were likely brought up by Smith’s team, but if they don’t serve a subpoena on Pence, they could be vulnerable if they decide to to bring a case against Trump.
“You learn as a prosecutor that you have to call every key witness or face the prospect of a defense attorney pointing out their absence,” Fredericksen noted.
“They fully expect this challenge,” he said, echoing Luttig’s analysis, but the demands of the criminal investigation could negate any efforts by Pence to avoid testifying.
Smith’s office declined to comment.
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