Pence's team: good lawyering

 

Pence doesn't want to talk to the Justice Department about reasons why it might want to prosecute Donald Trump in connection with the Capitol Hill riot on Jan. 6, 2021 that nearly killed Pence.

Let us not discuss, just for now, WHY he doesn't want to talk. Let us simply take it as a given that he doesn't want to talk about this under oath. That way we can move on to this point:

We have evidence now that his lawyers are pretty good. 

Consider: Donald Trump's lawyers keep invoking "executive privilege" in situations like this.  They keep invoking it and they keep losing. Courts have acknowledged that executive privilege exists (one finds such an acknowledgement in the US v. Nixon opinion, for example). But the actual decisions rather than the dicta consistently go against it. 

Perhaps this consistent losing record has some relationship to a fact about the text of the US constitution. That text does not say anything that, in a simple and direct reading, bestows any evidential privilege upon the chief executive. At all. 

So: what have Mike Pence's lawyers done about this?  Can they acknowledge the executive privilege losing streak while still coming up with a creative way to keep their client from having to testify? 

Yes: it appears that they can. At least in some respects -- qualifications to follow. But it is valuable that they have tied their cause to a legislative privilege that IS firmly rooted in the text of COTUS. They have invoked the speech and debate clause. 

The constitution says, of the legislators generally, that: "for any speech or debate in either House, they shall not be questioned in any other place."  The language "shall not be questioned" seems tailor-made for Pence. It reads just as one would expect an evidential privilege to read.

Was Mike Pence a legislator? That is the brilliant move here. He has fixed on an immunity that can help him although it cannot possibly help Trump.  Despite a lot of loose talk about "separation of powers," (some of that loose talk by Pence himself) the framers didn't separate, they intermingled the powers. The Vice President has a specific constitutional role as a legislator. The Democrats over the first two years of the Biden administration were able to run the U.S. Senate (and get a Supreme Court nominee confirmed without having to beg a turtle look-alike for a hearing) precisely BECAUSE the Vice President, nowadays Kamala Harris, has a legislative role. 

So Harris' precursor, Mike Pence, was arguably a legislator as the constitutional presiding officer of, and sometimes as a vote within, the U.S. Senate. 

In this context, it is wonderfully relevant that the events for which Trump may indeed be prosecuted, the events about which Pence does not want to talk, took place PRECISELY WHEN PENCE WAS SERVING IN THAT LEGISLATIVE CAPACITY. 

Good lawyering dudes. I personally wish your client wanted to talk to Jack Smith voluntarily -- but your job is as an advocate, and he doesn't. Given that: great move. 

One caveat: it doesn't do everything Pence may want it to do. It may protect whatever Pence did, said, and heard from the time he entered the Capitol compound that day to the time he finally left, early the next morning, when his neck appeared secure and the job had been done. It won't protect conversations he had with the President, some of them actually within the White House, others in phone calls between their respective offices, in the days leading up to that.  

Consider the specific language again. "for any speech or debate in either House, they shall not be questioned in ANY OTHER PLACE." The clause is specific to places. When these words were written, the Capitol Dome had not yet been built. Indeed, the new government would get its start in New York. But the framers knew that Congress would have a specific place in which it would fulfill its constitutional obligations, and the clause exists to protect their work IN THAT PLACE from intrusions from other places (i.e. whatever building prosecutors would end up working out of.).  A Vice President does have a dual role, both legislative and executive. But he is only a legislator when he is working within that PLACE.

The clause does not say "by any authority" but "in any other place." The specifics of places were very much on the mind of whoever first proposed this wording in a certain place in Philadelphia.

So, again: good creative lawyering. Will certainly tie things up for a bit as it is litigated. Probably won't save Pence from having to discuss what he and Trump discussed over the phone in their respective offices. But probably will allow him to refuse to discuss the riot and his own near-brush with a lynching, all of which happened while he was in a legislative place, serving a legislative role.