The Volokh Conspiracy
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Can The Vice President Invoke The "Speech or Debate" Clause?
The provision applies to "Senators and Representatives," not to the President of the Senate.
According to reports, former-Vice President Mike Pence will challenge the special counsel's subpoena by invoking the "Speech or Debate" Clause. Politico cites an unnamed source:
Pence allies say he is covered by the constitutional provision that protects congressional officials from legal proceedings related to their work — language known as the "speech or debate" clause. The clause, Pence allies say, legally binds federal prosecutors from compelling Pence to testify about the central components of Smith's investigation. If Pence testifies, they say, it could jeopardize the separation of powers that the Constitution seeks to safeguard.
"He thinks that the 'speech or debate' clause is a core protection for Article I, for the legislature," said one of the two people familiar with Pence's thinking, who spoke on condition of anonymity to discuss his legal strategy. "He feels it really goes to the heart of some separation of powers issues. He feels duty-bound to maintain that protection, even if it means litigating it."
The Speech or Debate Clause appears in Article I, Section 6, along with several other provisions:
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 word "they" refers back to "Senators and Representatives," which appears at the outset of the paragraph. The Vice President is not a "Senator." Not a member of the legislative branch, or something to that affect. "Senator." Text matters. He was, without question, the "President of the Senate." But he was not a "Senator."
The Constitution expressly contrasts the President of the Senate and actual Senators. Article II, Section 1, spells out the role of the Vice President during the joint session.
The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted.
The President of the Senate is apart from the Senators.
Article I, Section 3, Clause 4 provides:
The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided.
Senators have votes on all legislation. The Vice President does not.
There is a long-simmering debate about which branch of government the Vice President belongs in, for purposes of the separation of powers. But there is very strong textual evidence that the Vice President is not a "Senator" for purposes of the Speech or Debate Clause.
The bigger surprise is that Pence did not invoke executive privilege. It's possible this "Speech or Debate" gambit may be a not-so-serious effort to fight the subpoena, stand for some institutional prerogative, and eventually give the special counsel everything he wants. (Much of what Pence knows is probably already in his book.) It may not matter much, because Trump will try to invoke executive privilege to block Pence's testimony.
Update: Gravel v. United States (1972) includes this line:
It is true that the Clause itself mentions only 'Senators and Representatives,' but prior cases have plainly not taken a literalistic approach in applying the privilege.
I would hope that the Scaliafied judiciary takes a literal approach to the Constitution.
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I was surprised by the subpoena. I expected he would give an interview, not under oath but subject to 18 USC 1001, and FBI agents would relay his testimony to the grand jury as needed.
He’s been refusing to testify for something like two years now. The only “surprise” is that it took this long for them to try a subpoena (especially since they knew Trump would fight it).
“But there is very strong textual evidence that the Vice President is a “Senator” for purposes of the Speech or Debate Clause.”
is there a typo here? Otherwise, the post makes no sense (for example “The President of the Senate is apart from the Senators.”)
But there is very strong textual evidence that the Vice President is *not* a “Senator” for purposes of the Speech or Debate Clause.
Prof. Blackman has indicated he does not read comments. Years of experience indicate none of the other Conspirators will relay evidence of error to him (or, if they do, he will not attempt to correct a mistake).
If you want to try to reach him, have you considered posting something at FreeRepublic.com or calling 1-800-946-4688 (1-800-WINGNUT)?
It’s strangely reassuring in its predictabilty that all you’ve got to offer here is name calling. You’re nothing like those people yelling “Pinko Commies!”
Get an education, clinger. Start with standard English.
I mentioned that Prof. Blackman claims he does not read comments. That claim seems to be debunked a bit, but my source was Josh Blackman.
I offered a joke about how one might reach the otherwise oblivious Prof. Blackman.
You responded by accusing me of name-calling. You seem dumb. Or maybe it’s just that you are a clinger.
I also mentioned that Prof. Blackman’s many mistakes at this blog are rarely corrected, even when commenters describe the errors in detail, which indicates Prof. Blackman has no friends (among the other Conspirators, or elsewhere) who communicate the demonstrated errors to him.
You’re entire shtick here is name calling. Why would you pretend otherwise?
That’s pretty decisive.
I mean what are the odds he could have reread his piece and found the typo on his own?
Given his proofreading track record? Certainly not high…
Given that such stealth edits routinely appear after multiple people have commented on it, and he never acknowledges that meaningfully changed the content of his posts, I’d say low.
You are, of course, free to be more charitable then I.
How could anyone expect to benefit from privilege with respect to matters already (1) addressed in a published book, (2) addressed in published interviews, and (3) discussed with others far beyond any privileged context?
Pence and Trump are acting like they’ve got something to hide, and Biden is not.
Really? It’s a cardinal rule, when dealing with any law enforcement agency, to say as little as possible regardless of whether you think you’ve done anything wrong. Especially under oath or speaking to a federal agent conducting an official inquiry.
Just ask Scooter Libby.
Pence’s behavior here is perfectly rational. I make no comment on Trump because his behavior remains inexplicable and indefensible, which is why lumping the 2 together makes no sense…unless you’re a partisan hack.
But to rebut your point about Biden acting like he has nothing to hide, his behavior since the discovery he had retained classified material from his term as VP says otherwise. His camp very much tried to keep that from coming to light. Whether it was a fear of legal jeopardy or the inevitable comparison with Trump I can’t say. But he would very much have liked to hide all that.
…and with media and DOJ complicity is doing a pretty good job of it.
Has Biden asserted some kind of privilege? Has he refused to turn over documents?
No. But what privilege could he possibly assert to justify having documents from his non-presidential time? Sure, he could have asserted some sort of presidential privilege so as not to have his properties searched…but as a political matter, he would have looked like Trump so that wasn’t an option once the spotlight was shining.
I’m not pushing back here because I’m trying to defend Trump (definitely not, never voted for him) or because I want to see Biden in hot water. (Could more or less care less, this is all politics/posturing.)
I’m calling you out for reflexively defending Biden in contrast to the Orange Man Bad. Because whatever else is going on here, Trump has the best case that he didn’t mishandle classified documents, because he had the authority to declassify them while still president (and no, he doesn’t have to file any paperwork to do that.) The other guys don’t have that Get-out-of-jail Card here. AFAIK, the presidential records act doesn’t have any criminal penalties, so now we are to the stage (as Andy McCarthy has noted) of trying to make this into a process crime. Again. Maybe it is, I don’t know. The walls have been closing in since forever.
I do know that Biden’s people tried to slip the renegade docs back to the National Archive without anyone noticing. Like it all never happened, except somebody (probably an inspector general) blew the whistle.
Apologies, I didn’t mean to litigate this here. I just find reflexive partisan hackery exhausting. On all sides.
MaddogEngineer, Donald Trump’s handling of the purloined documents — most especially his false and misleading response to the D.C. grand jury subpoena — presents a slam dunk for conviction under 18 U.S.C. §§ 793 (willful retention and failure to deliver documents on demand), 1591 (concealment of documents with the intent to impede, obstruct, or influence the investigation or proper administration of justice), and 2071 (willful and unlawful concealment of documents). He likely is also culpable under 18 U.S.C. § 2(b) for causing his agents to make fraudulent statements in violation of 18 U.S.C. § 1001. (None of these statutes requires that the subject documents be classified.)
Joe Biden has not asserted any privilege regarding documents that came into his possession. Neither has he committed any criminal offense regarding them, based on information that to now has been made public.
MaddogEngineer seems to struggle with the simplest concepts, focusing instead on partisanship (and on unconvincing attempts to disclaim partisanship).
The DOJ has reportedly filed a sealed motion in federal district court seeking to compel testimony from Donald Trump’s lawyer M. Evan Corcoran, invoking the crime-fraud exception to attorney-client privilege. Corcoran appeared before the grand jury in January. https://www.nytimes.com/2023/02/14/us/politics/trump-lawyer-classified-documents-investigation.html
Corcoran reportedly drafted the June 3, 2022 statement wherein Christina Bobb fraudulently represented to DOJ that all documents responsive to a grand jury subpoena had been produced. If Trump induced of caused him to do so, Trump could be punishable as a principle under 18 U.S.C. § 2 for his agents’ misconduct in violation of 18 U.S.C. § 1001.
Like I said, it’s process crime time! The walls are closing in!
Oh yes, the walls are closing in!
I’d be perfectly happy to see Trump convicted of something. Just not anything.
See, your last sentence is repeat of the Hillary server problem. Your claim that he has committed no criminal offense is problematic because lesser people have gone to jail for similar behavior. Bullied into plea bargaining to a lesser offense for fear of a criminal prosecution under the Espionage Act. The reason Biden is ultimately in no legal jeopardy is because of that precedent: charges will not be pursued against important people who are careless with classified documents.
Trump is so brazen about all this because, unlike Biden (or Hillary), he doesn’t believe he did anything wrong. Probably because he thought he could declassify anything he wanted to take. But we don’t know, because he hasn’t made an legal representations yet (something his lawyers have been very curiously careful about) whether he did declassify them.
The criminal exposure under the Espionage Act is not whether you give them back meekly when caught, it’s having them in the first place. It may very well be that none of Trump’s documents were classified any longer on Jan 20, 2021, while Biden’s were still as of Jan 20, 2017. That of course is ignoring anything from his Senate days.
I could even grant him a retroactive declassification, while he was president anyway. After, not so much.
Which laws? Or rather, which laws has Trump violated that Biden and Pence (and Jimmy Carter) have not?
Based on what we presently know, an obvious one is 18 U.S.C. § 1519. Another would be 18 U.S.C. § 2071. Also 18 U.S.C. § 793(d).
Wasn’t some of the classified material in Biden’s possession from his time as a Senator?
“Wasn’t some of the classified material in Biden’s possession from his time as a Senator?”
Yes, it was. Joe Biden left the Senate in January 2009, and his service as vice-president ended in January 2017. Mere possession of materials that an official lawfully obtained, without more, does not violate any federal criminal statute that I am aware of. In any event, Biden’s obtaining the materials occurred outside the applicable period of limitations for instituting prosecution, per 18 U.S.C. § 3282(a).
So you can cite chapter and verse of the US Code, but are unaware of a person’s obligation to make sure classified documents are securely controlled? Or is that what you mean by your “without more”?
Because there are plenty of people who have taken plea bargains to lesser charges to avoid criminal prosecution under the Espionage Act for this very behavior.
Biden is not acting like he has something to hide?
Maybe that’s because he rambles and mumbles and dissembles so much that no one call tell what he is saying.
Or maybe it’s his press secretary who is trying to hard to hide what he has to say.
Pretty weak sauce for that gander.
Prepare to be shocked by how the courts handle these disparate cases, you bigoted, uninformed rube.
Next from the Pence legal team: “checks and balances violate separation of powers.”
So when will Pence’s lawyers be subject to referrals to the bar with calls for their removal?
That likely will, and should, be governed by how much they lie; violate litigation rules and court orders; and advance frivolous arguments.
The argument is not frivolous, IMO. It may be a question of first impression.
I do not expect Pence to advance frivolous arguments. First, I sense he has better character than his frivolity-addicted former colleague. Second, I sense he will hire lawyers disinclined to emulate the semiprofessional activities of Trump Litigation: Elite Strike Force. Third, the dumbassery of the Trump lawyers has been so profound that it seems foolish to expect the work of any other lawyers to resemble that flaming shitstorm.
Pence, throughout his four years as Vice President, did a pretty good job of supporting Trump while not crossing the lines that Trump was crossing.
And as we’ve seen during Biden’s presidency, this has continued: while Trump has stonewalled and fought the recovery of documents that were not his to keep, to the point of getting his own lawyers to commit perjury and push ridiculous arguments, Pence has cooperated and given every indication that he’s on the FBI’s side.
I expect we’ll see similar here: Pence and his lawyers will fight this to the full extent of the law, but they won’t push ridiculous arguments, they won’t indefensibly waste time (they will just waste time so long as it’s defensible), and so-on.
So I’ll be surprised if Pence’s lawyers are sanctioned becuase Pence just doesn’t cross the lines that Trump does.
This is also why, ultimately, Pence didn’t go along with Trump’s post-election schemes. He saw lines that Trump did not.
The Politico article notes that the Justice Department has previously taken the position that the Speech and Debate Clause does protect the Vice President at times, and in particular protects Pence’s actions during the electoral college vote couting on January 6, 2021.
One brief states “As all of Brunson’s claims against the Defendant members of Congress and former Vice President Pence concern their accepting the electoral college votes during one of the most important functions of Congress, mandated by the Twelfth Amendment, without doing further investigation of specious fraud claims never proven to the satisfaction of dozens of courts, these causes of action are also barred by the doctrine of absolute legislative immunity under the Speech or Debate clause of the Constitution found in Article I, section 6.”
I think the Vice President acting as President of the Senate should be protected the same as the Senators. If Trump offered Pence anything of value in return for counting the votes Trump’s way, that would be fair game for prosecutors. We don’t know what the prosecutor is looking for.
“You might take a broader reading, that the clause immunizes everyone involved in the operation of Congress from being questioned.”–That is basically what Gravel says. I would expect the current Court to apply the “sauce for the goose” rule against a Democratic administration.
“‘You might take a broader reading, that the clause immunizes everyone involved in the operation of Congress from being questioned.’–That is basically what Gravel says.”
Uh, no. Have you even read Gravel? SCOTUS there denied the Senator’s aide’s claim to immunity from testifying before the grand jury.
Gravel held that the aide was protected for legislative acts performed on behalf of the Senator to the same extent that the Senator would be, but that protection did not extend to testifying about arrangements with and the involvement of Beacon Press because that did not involve legislative acts.
So, you’re kind of both right.
I think the Vice President acting as President of the Senate should be protected the same as the Senators.
Of course you do. There’s no textual support for this position, and indeed, given that the FFs specified that Senators should be protected, the failure to extent that protection to the VP as president of the Senate should be presumed to be intentional. Further, there is nothing in the Constitution that gives the VP the power to speak on legislation, so there would be nothing for him to need to be protected from.
But as giving Pence the same protection protects Trump, why then…
Blackman, when you make edits to your article, even if they’re just grammatical/spelling errors, you really need to call them out.
When you make edits that entirely change the meaning of a sentence, such as adding in a “not”, you really need to call them out.
First, that would require professionalism. You’re in the wrong spot for that.
Second, he expressly claims he never reads comments.
On the other hand, he rarely corrects the glaring mistakes of Today In Supreme Court History, so it is somewhat surprising to observe an apparent correction. But not surprising that he did it without acknowledging it.
And this, folks, is how one remains mired at one of the shittiest law schools in America despite hard-wired conservative street cred and Federalist Society connections.
I don’t see why a blogger needs to call out grammatical/spelling corrections. Things that change the meaning — even if just scrivener’s errors like the one above — probably should be noted, though.
Well, the argument is less stupid than I originally thought, if it’s restricted to speech as President of the Senate. But on textual grounds, I’d still have to reject it.
OK. The person who can cause a law to be passed by the senate is not a member of the senate. Got it.
So did Indiana have 3 senators when Pence was VP? Yes or No.
No, Pence was not Indiana’s Senator at the time. He was a Senator without portfolio.
Oh, well, that clarifies everything. The Vice President is actually a senator, but they aren’t elected to the Senate pursuant to the 17th Amendment, they aren’t a Senator from anywhere, they don’t actually get to vote on all the things other Senators get to vote on, they don’t get paid like a Senator, they don’t have an office and staff like a Senator, and so-on.
In fact, in all ways except in name, they are entirely unlike a Senator. Wait, no, even that, they’re a Vice President, not a Senator. So they aren’t a Senator in name, either.
But besides that little detail, they’re totally a Senator.
He’s a member of the Senate but not a Senator. Simple.
SCOTUS has observed that “The Speech or Debate Clause was designed to assure a co-equal branch of the government wide freedom of speech, debate, and deliberation without intimidation or threats from the Executive Branch.” Gravel v. United States, 408 U.S. 606, 616 (1972). Assuming arguendo that the clause applies to the vice-president in his capacity as presiding officer of the Senate, it would be anomalous to foreclose a grand jury’s investigation of exactly such intimidation or threats from the Executive Branch.
Mike Pence’s chief of staff Marc Short and his legal counsel Greg Jacob have each appeared twice before the grand jury. I surmise that at the initial appearance each asserted testimonial privilege(s), and privilege issues were then litigated before the Chief Judge Beryl Howell, resulting in further testimony from the two aides. It is impossible at this point to know whether any issue under the Speech and Debate Clause was or was not raised there.
One problem I have is that in the duck hunting case, VP Cheney got to assert executive privilege (which was terrible- Veeps literally have no executive powers unless the President dies). So if they can also assert the Speech or Debate Clause, this unimportant pipsqueak of an office will now have both executive and legislative privileges. Whatever the Constitution means, it doesn’t mean that.
Cheney got away with so much. The most inappropriately underinvestigated politician I can remember.
I don’t think Cheney actually asserted executive privilege in that case; Cheney’s position was that the statute didn’t even apply to him, and therefore it was an abuse of discretion for the court to permit discovery. He declined to assert executive privilege in response to any particular discovery requests.
Even if Mice Pence as presiding officer of the Senate fell within the ambit of the Speech and Debate Clause, he is still obliged to appear and testify before the grand jury. “Neither does [the Speech and Debate Clause] immunize Senator or aide from testifying at trials or grand jury proceedings involving third-party crimes where the questions do not require testimony about or impugn a legislative act.” Gravel v. United States, 408 U.S. 606, 622 (1972).
Any objection would need to be interposed on a question by question basis. As SCOTUS opined in Gravel, supra at 629 n.18, “We do not intend to imply, however, that in no grand jury investigations or criminal trials of third parties may third-party witnesses be interrogated about legislative acts of Members of Congress. As for inquiry of [Sen. Gravel’s aide] Rodberg about third-party crimes, we are quite sure that the District Court has ample power to keep the grand jury proceedings within proper bounds and to foreclose improvident harassment and fishing expeditions into the affairs of a Member of Congress that are no proper concern of the grand jury or the Executive Branch.”
“Much of what Pence knows is probably already in his book.”
Falser words were never spoken.
In Kilbourn v. Thompson (1880), the Supreme Court held that the sergeant-at-arms of the House of Representatives was not immune, under the Speech and Debate Clause, from a suit for false imprisonment despite the fact that he was proceeding under the orders of the House. In support of the proposition, the Court cited the British case of Stockdale v. Hansard (Queen’s Bench, 1839), in which the court had held that the official parliamentary reporter was not immune from a libel action, despite the fact that he was publishing a report under the orders of the House of Commons. (What the Supreme Court did not mention was that in response to that ruling, Parliament had passed the Parliamentary Papers Act 1840 to extend parliamentary privilege to those publishing papers under the authority of Parliament).
Likewise, in Dombrowski v. Eastland (1967), the Supreme Court held that while a Senate subcommittee chairman was immune from a suit alleging a conspiracy to illegally enter his office and seize documents, counsel for the subcommittee was not immune under the Speech and Debate Clause. (Louisiana state courts had held the entry and seizure were illegal, as the warrants had not been supported by probable cause.)
However, in Gravel v. United States (1972), the Supreme Court began to retreat from the hyper-literal reading of the Clause, giving more effect to its intended purpose, when it extended the privilege to legislative aides. Notably, the majority opinion was authored by Justice White, joined by Chief Justice Burger and Justices Blackmun, Powell, and Rehnquist. The dissenters (Powell, Douglas, Brennan, and Marshall) believed the Court had not extended the privilege far enough. But even the more conservative members were willing to extend the privilege beyond Senators and Representatives: “{T]he privilege available to the aide is confined to those services that would be immune legislative conduct if performed by the Senator himself.”
Sometimes the vice president acts as a member of the legislative branch and at other times as a member of the executive branch. The Constitution acknowledges potential conflict where it states the Vice President shall not serve as the President of the Senate “when he shall exercise the Office of President of the United States.” (Presumably when he is temporarily serving as Acting President.)
I believe, to effectuate the purpose of the Clause, its immunity extends to the Vice President when, and only when, he is acting as a member of the legislature, as he was in the instant case.
CORRECTION: Powell was in the majority in Gravel. Stewart dissented (in part).
As Josh points out a strictly textual approach to the constitution will not support Pence’s claim. But of course the only reason Josh is making that point is to make it harder to point out his advocacy of textualism and Original Public meaning is only a sham results first methodology.
I’m pointing that out not because I believe it, but because its Josh’s post and it must be blameworthy somehow.
So could the President and/or the AG have the Vice-President arrested to stop him from presiding over the Senate and/or casting a tie-breaking vote? (Apologies for those two and/ors in a single sentence.)
Yes.
Being a senator, congress-critter, or vice president doesn’t mean you’re immune to arrest. We’ve had it happen before. Hell, we’ve had sitting senators get arrested for soliciting sex from undercover police officers in an airport bathroom.
What will cause a problem is if the arrest is based on statements made as part of their congressional duties.
So yes, you can arrest a senator for murder, but not for soliciting murder from the floor of the senate.
All of which is to say… while the president absolutely could get any given senator/congress-critter/vice president arrested to prevent a vote, if they don’t have a damn good reason there’s going to be a huge problem. If it comes out that the arrest really was just to prevent a vote, then we’re probably talking impeachment. Which naturally may lead to the president then ordering the FBI to arrest everyone who was about to vote to impeach them, but then we’re kind of talking “coup”, no?
Did Blackman just engage in legal analysis?
Opponents of Vice President Pence’s position would probably be much better off trying to distinguish Gravel v. United States from the Vice President’s situation rather than the much riskier argument of saying Gravel has to be overruled for them to win.
It seems to me Gravel can be easily distinguished. Gravel’s basic argument was that a Senator’s aide is an extension of the Senator. If you can haul the aide into court , you are impeding the Senator’s, the employer the aide serves, ability to speak and debate. But Vice President Pence isn’t simply an extension or tool of the Senators. He’s a completely different, independent actor with his own separate office and role. It would be pretty easy to make a case that Gravel’s reasoning doesn’t apply to him.
Perhap Professor Blackman is a bit too prolific. Better to read Gravel and digest it before forming an opinion.