Rep. Adam Schiff (D-Calif.) spoke out this week against the idea of former Vice President Mike Pence using provisions of the Constitution meant to protect members of the legislature from certain forms of law enforcement scrutiny for actions taken in the course of their work.
“Pence is now claiming the Speech and Debate Clause — meant for senators and members — allows him to avoid testifying about Jan 6,” Schiff pointedly observed Tuesday on Twitter. “Just shows the lengths Pence will go to avoid doing his duty and telling the truth. What a way to launch a presidential campaign.” Just to be clear, Schiff is being somewhat sarcastic with that last part. Pence hasn’t actually announced a bid for president, but he is among those widely understood as a potential contender, although polling suggests he wouldn’t do very well. That, of course, didn’t stop Nikki Haley, an ex-official in the Trump administration itself, from announcing a campaign for president this week.
Pence obviously wasn’t generally a member of the legislative branch in the regular course of his work as vice president, although whoever holds that position does have a procedural role and can sometimes step in to break a tie, as Vice President Kamala Harris did a series of times when the chamber was split evenly between the two major parties for the first two years of Biden’s time in office. The idea outlined in news reports, though, is that Pence’s work overseeing the Congressional proceedings on January 6 to certify the presidential election outcome means he should be considered under those Constitutional protections rather than forced to testify in an investigation by Special Counsel Jack Smith into political schemes to support the efforts to keep Trump in power despite him losing the election. Pence didn’t even go along with the schemes — and yet, he evidently may also be resisting a subpoena issued in Smith’s probe with these dubious arguments. Can’t he at least pick a side?
Although a report from POLITICO credited at least some of the talk of Pence’s purported strategies to allies of his, one of these sources in turn credited the former vice president himself. “He feels it really goes to the heart of some separation of powers issues,” that individual claimed, referring to Pence. “He feels duty-bound to maintain that protection, even if it means litigating it.” Largely, the report indicates there’s been no conclusive precedent established in actual court rulings for how the provisions to which Pence, his allies, and Schiff were referring actually apply to someone serving as vice president. Trump already complained in specific terms on Truth Social about the subpoena to Pence, who never actually testified to the House committee that investigated the Capitol riot, although allies of his, including individuals who had positions on his official staff, did so.
