The other day, I dashed off a quick post here explaining why former vice president Mike Pence does not enjoy the protection of the “speech or debate” clause of Article I, § 6. Only after writing it did I see that the redoubtable Andy McCarthy had beaten me to the punch with a more elaborate argument than my own to the same effect.
Now come the editors of the Wall Street Journal, who argue that Pence has a solid claim to the clause’s protection and say that “the left is attacking him” (that would be me and Andy, among others). Let’s review the Journal editors’ arguments and supporting authorities.
First up is a quotation from Justice Clarence Thomas’s opinion for the Supreme Court in Bogan v. Scott-Harris (1998): “We have recognized that officials outside the legislative branch are entitled to legislative immunity when they perform legislative functions.” The Bogan case had to do with the immunity from civil liability under § 1983 of city officials in Fall River, Mass. The Court had long held that local legislators are absolutely immune from suit under § 1983, and the only interesting question was whether Bogan, the mayor of the city, enjoyed the same immunity. Inasmuch as his actions at issue were the introduction of a city budget and signing an ordinance into law — actions the Court called “formally legislative, even though he was an executive official,” the answer was affirmative. But what civil liability under § 1983 for a local mayor with distinctly legislative responsibilities has to do with a vice president’s alleged immunity under Article I, § 6 from a subpoena in a federal criminal investigation into his conversations with the president is a very good question.
The Journal editors next cite the 1972 case of Gravel v. United States, in which the Court held that a senator’s aide (as the Journal accurately puts it) “was protected from testifying on legislative deliberations.” They then argue, “If a Senator’s aide is covered by the Speech or Debate Clause, surely a VP presiding over the Senate would be.” Not so fast. The reason a senator’s aide was shielded in Gravel is that the Court reasonably held that what a grand jury could not ask the senator, it could not ask his aide. Members’ staffs, in short, were to be considered extensions of the members themselves. As the Court held, “the Speech or Debate Clause applies not only to a Member, but also to his aide insofar as the conduct of the latter would be a protected legislative act if performed by the Member himself.” It certainly does not follow that the shield covers a person who neither is a member of Congress nor acts for one.
So much for judicial authority. The Journal then tells us, “The Biden Justice Department” has already twice taken the position the editors are now defending “in legal filings defending Mr. Pence himself from lawsuits related to Jan. 6.” Unfortunately, the editors’ first example is from December 2020 — when it was not the Biden DOJ but the Trump DOJ that was in charge. Oops.
Their final authority, this one actually from the Biden DOJ, is a brief filed in August 2021 in a federal district court in Utah by the acting U.S. attorney, in a patently meritless lawsuit by one Raland Brunson, who sought to have the courts declare Donald Trump still president on grounds of a fraudulent election. Brunson named 291 House members, 94 senators, and former vice president Pence as defendants in the case. Every court that has considered this suit has dismissed it. The U.S. attorney’s brief provided several grounds for dismissal: sovereign immunity of the United States, lack of standing (because of no particularized injury to Brunson), and — yes — the legislative immunity of members of Congress under Article I, § 6. Here is the passage partly quoted by the Journal’s editors:
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.
Here we have the best authority for the Journal’s argument — and it’s not strong at all. There were 386 defendants in Brunson v. Adams, one of whom was Pence. 385 of them enjoy the protection of the speech or debate clause. A single sentence referring to this immunity, in which Pence himself is mentioned but not made an exception, can be read in two ways. Either the acting U.S. attorney and assistant U.S. attorney for Utah (not main Justice in Washington) thought it over and definitely concluded the vice president is covered by the clause, or — and this is far more likely — they simply didn’t give it any thought at all as they prepared a 16-page brief to dispose of a nuisance lawsuit by a crackpot against hundreds of members of Congress. Certainly no court has held, in this case or any other, that the vice president is protected by the clause. The Brunson case was disposed of in district court and the Tenth Circuit on lack-of-standing grounds.
The Journal, and the vice president, will have to do better than this sorry performance. Andy McCarthy was right. Pence has probably turned to this argument against answering the special counsel’s subpoena because the shield he could avail himself of, executive privilege, would almost certainly fail in the face of a demand for testimony in a criminal case.
The vice presidency is a curious platypus of an office. Its occupant formally enjoys no share of the executive power, though vice presidents have come to be entrusted by presidents with certain delegated authority. And yet their job as presiding officer of the Senate, even with the occasional tiebreaking vote, does not make them legislators. Only with the adoption of the 25th Amendment in 1967 was the vice president given constitutional authority to do anything other than succeed to the presidency upon a vacancy, and preside over the Senate. But if anything, that amendment underscored that to the question “to which branch of government does the vice president belong?” the answer must be: the executive branch. It is not a defense of the separation of powers for a member of the executive branch to claim a legislator’s privilege.