Is Pence Entitled To Invoke The Speech And Debate Clause Privilege?

Keith
4 min readMar 7, 2023

Mike Pence has been subpoenaed by Special Prosecutor Jack Smith’s grand jury. He is a central witness, perhaps the most central witness, regarding Trump’s attempts to bully Pence into unilaterally refusing to certify electoral college votes from some states. That effort by Trump has already resulted in one Federal judge saying Trump likely committed two serious felonies.

The speech and debate clause states that members of Congress are immune from charges “for any Speech or Debate in either House, [and] they shall not be questioned in any other Place.” Pence claims that since he was presiding over the Senate, as President of the Senate, when counting electoral college votes that his activities and conversations (to include with Trump) related to that are protected by the Speech and Debate clause.

IS PENCE A “SENATOR”?

You might note the emphasized word “they” in that quotation above. Who are “they”? Presentation of the full clause in Article I, Section 6 is in order to answer that.

“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.”

The “they” refers back to “Senators and Representatives.” Thus, to qualify for the privilege it is not sufficient for Pence to be some non-Senatorial member of the legislative branch, he must be an actual Senator.

The Senate of the United States shall be composed of two Senators from each state.” Art I, Sec 3. From which state with two Senators is Pence from? It does not say that the Senate is composed of “two Senators from each state and the President of the Senate” (aka Vice President). No suggestion of that is there.

The 17th Amendment also starts with “The Senate of the United States shall be composed of two Senators from each state.” Again, which state Senator is Pence? It also states “each Senator shall have one vote” in the Senate. Pence only votes to break ties. He does not have one vote as that amendment provides for Senators as having.

The Senators and Representatives shall receive compensation for their services, to be ascertained by law.” Art I, Sec 6. The Vice President’s pay is set separately from Senators by 3 U.S.C. § 104.

The 17th Amendment also states that each Senator is elected by the people of their state for a term of six years. Pence was not elected by the people of any one state and his term was not six years. The 17th also states that when Senate vacancies happen state legislators decide how a Senator is replaced. If there is a vacancy in the President of the Senate position (Vice President) state legislatures do not decide the replacement. The President nominates a replacement that is confirmed by the Senate.

The only conclusion is that while Pence has a Constitutional role in the Senate, that role is not as a Senator, which is what is required for him to benefit from the speech and debate clause. Pence’s election was governed not by Article I, for the national legislature, but rather by Article II, for the executive branch. Saying the Vice President is a legislative official is like saying the President is because he can veto bills and addresses Congress to give the State of the Union.

AN IMPORTANT SPEECH AND DEBATE CLAUSE EXCEPTION

Let’s go back to the speech and debate clause in Article I, Section 6, because even if we somehow do the apparently impossible, and deem the privilege to apply to Pence, then so does a very important exception.

“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 . . .”

To be sure, Pence in this matter is not the target of a felony investigation. He is, however, a key witness to a felony investigation. This critical exception seems to apply to any case involving a felony. There can be no doubt that Pence is being asked to testify about potential felonies. This is a felony case and the exception for it should apply.

Consider this. The felony exception in the Constitution here is equal to the treason exception. They are interchangeable. If Pence were a witness to Trump’s treason, of his aiding and abetting an enemy of the United States, could it credibly be argued the speech and debate clause would shield Pence from testifying about it? Could our Founders have been that dull witted?

I think not.

Further, it was arguably close to treason. Trump could be charged with aiding and abetting an insurrection, a breach of the peace. A breach of the peace that targeted Mike Pence.

The mob responded to that tweet with “hang Mike Pence” chants, and this.

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Keith

Retired lawyer & Army vet in The Villages of Florida. Lifelong: Republican (pre-Trump), Constitution buff, science nerd & dog lover. Twitter: @KeithDB80