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Pence Is Desperate for an Excuse

Jack Smith has his sights set on Evan Corcoran (see above). But that is hardly the only fish that the Special Counsel is trying to hook. No, he wants to have a nice, long chat with former VP Mike Pence as well. In fact, Pence has already gotten a personalized invitation to a tête-à-tête with the grand jury that Smith has empaneled.

Pence got some amount of praise for doing the right thing on 1/6, and refusing to try and overthrow the presidential election result. And maybe there really was some civic spirit in their somewhere. But, more and more, it's looking like Pence's concern on 1/6 was... Mike Pence. After all, his neck was on the line, and if there had been arrests for obstruction or some other serious crime, the VP would have been first to end up in handcuffs.

Consistent with Pence's overwhelming concern with his own self-interest, he is working to resist Smith's subpoena with all his power. The former VP surely has some valuable information, and might even play a role in making sure that there's never another coup attempt. But talking to the grand jury would alienate the MAGA voters. And Pence still thinks those voters might be persuaded to support his presidential bid. So, alienating them is a big problem, as far as he is concerned.

As he fights the subpoena, Pence's argument is going to be that the "speech or debate" clause of the Constitution protects him from having to testify. Here is that portion of the document, as a reminder:

The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.

In other words, members of Congress can't be prosecuted for what they say in the course of discussing legislation, nor can they compelled to testify about same.

There are some rather sizable problems when it comes to Pence invoking this clause in order to evade a subpoena, however. First, affirming the presidential result is not "legislating." Second, as you can see in the excerpt above, the speech and debate clause applies to "Senators and Representatives." The vice president might be President of the Senate, but he or she is not a senator (or a representative). Oh, and the Supreme Court has already made clear across several decisions that the protections of the speech and debate clause come with clear restrictions.

Pence himself, incidentally, has also gutted this argument with his past statements and legal filings. When it suited his needs, he insisted that his role in affirming the presidential result was "purely ministerial," and that he did not have any of the powers of a legislator. Later, when it suited his needs, Pence claimed that his activities that day, and any information he had about them, were covered by executive privilege. In other words, at various times, he has decreed that he was acting as a legislator, as a member of the executive branch, and as none of the above. You need a scorecard to keep track of what today's argument is.

The bottom line is that Pence is going to lose here, since he's got zero legal leg to stand on. The only question is how quickly a federal judge will tell him to take his speech and debate clause argument and shove it. Maybe the VP is just trying to buy as much time as is possible, the way that his former boss likes to do. Or maybe he just wants the MAGA crowd to see him fighting, so he can say, "I didn't want to testify, but they left me with no choice." Whatever his thinking is, his chances of becoming president are still not much better than ours are. (Z)

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