The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Probing the Limits of Speech or Debate Clause Privilege for Perry and Pence
The January 6 invistigations have renewed interest in this somewhat obscure constitutional provision and the scope of its protections.
On Thursday, the U.S. Court of Appeals for the D.C. Circuit heard oral argument in a potentially important Speech or Debate Clause case concerning whether the Justice Department can obtain access to the contents of Congressman Scott Perry's cell phone as part of its January 6 investigation. Most of the arguent was public and can be heard here. Judges Katsas and Rao actively probed both sides' arguments so for those interested in these issues it is definitely worth a listen. (Judge Henderson is also on the panel, but asked few questions as she was participating remotely.)
On Friday, district court judge Beryl Howell released a redacted version of her decision rejecting Rep. Perry's Speech or Debate Clause claim was released to the public. (It had previously been under seal.) After conducting in camera review of over 2,000 documents on Rep. Perry's phone, Judge Howell concluded that most were not covered by the Speech or Debate Clause's protection. Wrote Judge Howell:
What is plain is the clause does not shield Rep. Perry's random musings with private individuals touting an expertise in cybersecurity or political discussions with attorneys from a presidential campaign, or with state legislators concerning hearings before them about possible local election fraud or actions they could take to challenge election results in Pennsylvania,
It was hard to get a read on how the D.C. Circuit will weigh Perry's assertion of privilege. While their questions suggested some discomfort with the breadth of the Justice Department's position, which Judge Howell largely adopted, they also seemed resistant to Rep. Perry's equally broad claims pushing in the other direction and accepted that privilege could be waived by communications with those outside of the legislature.
At the same time the courts are considering Rep. Perry's claims, debate is swirling over whether former Vice President Mike Pence can invoke the clause's protections to refuse to testify before a grand jury about his activities on January 6. Pence wants to claim that the he can invoke this privilege because the Vice President serves as President of the Senate, and has a legislative-related role in counting electoral votes. (It also turns out that the Vice President's office is paid for as part of the legislature's budget, not that of the White House.) As noted by Glenn Reynolds (and flagged in Eugene's post below), how to characterize the Vice President's role, and how that affects a Vice President's ability to invoke this privilege in particular circumstances, is a legitimately difficult question.
One reason this is the central question is because Speech or Debate Clause immunity, where it applies, is generally understood to be "absolute." The text reads:
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.
Courts have interpreted this language, and the admonition that members "shall not be questioned" as a prohibtion on even questioning members of Congress about activities related to core legislative functions. Accordingly, the various cases probing and applying this immunity turn on whether the activities at issue are covered, not on the weight of the interest that would justify disclosure.
For this reason, I think that some of the claims made by Judge Michael Luttig about whether Pence can claim Speech or Debate clause immunity are wrong. In a recent Twitter thread, for instance, Luttig wrote:
If there are privileges and protections enjoyed by a Vice President when he or she serves as the President of the Senate during the Joint Session to count the electoral votes, those privileges and protections would yield to the demands of criminal process as—if not sooner than—do the Speech or Debate Clause privileges and protections for Senators and Representatives, and the Executive Privilege for Presidents of the United States.
In his more recent NYT op-ed, "Mike Pence's Dangerous Gambit," (which Josh Blackman discussed here), Luttig also writes:
Even if a vice president has speech or debate clause protections, they will yield to a federal subpoena to appear before the grand jury.
I do not believe these claims are accurate. If the Vice President is covered by the speech or debate clause when participating in the counting of electoral votes, they will not "yield to the demands of criminal process." The privilege includes a testimonial privilege ("shall not be questioned"), and is generally understood as absolute, if it applies. [Again, the key question is whether it applies, not whether it can yield.] Further, it is also not true that Executive Privilege necessarily "yields to the demands of criminal process." As U.S. v. Nixon makes clear, this depends, in part, on the reasons for which Executive Privilege is being invoked, as such reasons must be balanced against the needs of criminal process.
While I accept that the Vice President is, for some purposes, a part of the legislative branch, I am skeptical that his largely ceremonial role in the electoral count act is covered by the Speech or Debate Clause. I further wonder whether any such privilege that Pence could claim has been waived because some of his staff have already testified on these matters. But if Pence is unable to claim privilege here, it is not because the Justice Department is conducting a criminal investigation, but rather because the particular information the Justice Department seeks is not that which the privilege actually covers.
UPDATE: See my follow-up post here.