Reports in the New York Times, Wall Street Journal, and Politico say that former vice president Mike Pence plans to resist the subpoena of special counsel Jack Smith to testify about Donald Trump’s efforts to reverse his electoral defeat in the final days of his presidency. Pence, these reports say, invokes not executive privilege, as someone whose conversations with the president are shielded because he was a close adviser in the executive branch, but “legislative privilege,” as the presiding officer of the Senate who occupied the chair during the counting of electoral votes on January 6, 2021.
This privilege arises from the “speech or debate” clause of Article I, section 6, which shields members of Congress from being “questioned in any other Place” about anything they said in a “speech or debate” in either house. In the last 50 years, some legal precedents have construed this to cover any activity connected to the conduct of the legislature’s duties and powers by individual members (and even, under some circumstances, their staffs). The Journal in particular quotes a couple of scholars who think there’s a plausible case for Pence to claim the privilege too — perhaps a stronger case than for executive privilege.
Call me a textualist stick-in-the-mud, however, because this clause of the Constitution is written in such a way that it cannot be said to include the vice president at all. Here is the full first paragraph of Article I, section 6:
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.
Who are the “They” who are said in the second sentence to be “privileged from Arrest” and from being “questioned in any other Place”? The antecedent is at the beginning of the first sentence: “The Senators and Representatives.” The vice president is explicitly not a senator (let alone a representative in the House). The vice president’s election is established, with that of the president, in Article II (as modified later by the Twelfth and 25th Amendments). He is made the presiding officer of the Senate by Article I, section 3, where the Senate is also made responsible for choosing its president pro tempore (one of its own number) to preside in his absence. And he has no vote in the Senate unless there is a tie when he is in the chair. His presiding, and his occasionally voting, give him a formal role in the work of the legislature’s upper house, but they do not make him a legislator. He cannot even introduce or sponsor legislation. And the “speech or debate” clause, like the qualified immunity from arrest with which it is linked, is preeminently a legislator’s privilege.
Every court in which Mike Pence presses this claim should reject it out of hand.