Mike Pence is spewing 'constitutional nonsense' in bid to avoid testimony: legal scholars
Mike Pence / Gage Skidmore

Former Vice President Mike Pence previously defied demands for testimony from the January 6 Committee because, as a former member of the executive branch, he claimed the legislature could not compel his testimony.

But now that the Justice Department is seeking to subpoena him for the same information, he has deployed the reverse argument, claiming he was acting in his capacity as president of the Senate, which means that Constitution's Speech and Debate Clause privileges him from testimony.

But this strategy is "constitutional nonsense" — and not a credible excuse to get out of testifying, wrote legal experts Laurence Tribe and Dennis Aftergut for Salon. In fact, they wrote, there is already case precedent against Pence on this issue.

"The speech or debate clause provides that 'Senators and representatives … shall not be questioned in any other Place' than Congress about 'any Speech or Debate in either House,'" they wrote. "Unfortunately for Pence's claim, the Supreme Court ruled in 1972 that the clause does not 'immunize a 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.' That is exactly the sort of testimony that Smith and his grand jury seek."

By way of example, Tribe and Aftergut proposed a hypothetical scenario in which Sen. Susan Collins (R-ME) "received a phone call threatening her family's safety if she voted to convict Trump," and reported it to the FBI. If she then changed her mind about taking the stand, "there is no conceivable way that the speech or debate clause would immunize her from testifying" — even though her call to the FBI was technically about a "speech or debate" in the Senate.

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"It is well within the realm of possibility that Trump [told Pence] that he couldn't protect Pence from MAGA supporters if Pence resisted," they wrote. "Any such statements would provide potentially powerful evidence of a criminal state of mind. So could statements that Trump may have made in other meetings where he and Pence were alone or where Pence was present in a larger group. Pence may also have witnessed statements made to Trump in such meetings about the lack of evidence of any widespread fraud, which would be important to prove Trump's criminal knowledge in firing up the Jan. 6 mob on false pretenses."

Tribe and Aftergut are not the only experts to weigh in on the matter. As they noted in the piece, Michael Luttig, a former federal judge close to Pence and one of the founders of the modern conservative legal movement, laid out in detail on Twitter why Pence's argument was invalid.