Can the Vice President invoke the “speech or debate” clause?

Former Vice President Mike Pence will challenge the special counsel’s subpoena citing the “speech or discussion” clause, according to reports. Politico cites an unnamed source:

Pence’s allies say he is covered by a constitutional provision that protects congressional officials from legal action related to their work — language known as the “speech or debate” clause. The clause, Pence allies say, legally binds federal prosecutors to compel Pence to testify about central components of the Smith investigation. If Pence testifies, they say, it could threaten the separation of powers the Constitution seeks to protect.

“He thinks the ‘speech or debate’ clause is a key protection for Article I, for the legislature,” said one of two people familiar with Pence’s thinking, who spoke on condition of anonymity to discuss his legal strategy. “He feels it really cuts to the heart of some of the separation of powers issues. He feels obligated to maintain that protection, even if it means litigation.”

The speech or debate clause appears in Article I, Section 6, along with several other provisions:

The Senators and representatives shall receive compensation for his services, to be fixed 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 sittings of their respective houses, and on their departure and return from the same; and for every speech or debate in any house, they will not be examined at any other place.

The word “they” refers to “senators and representatives,” which appears at the beginning of the passage. The vice president is not a “senator”. I’m not a member of the legislature or anything like that. “Senator.” The text is important. He was, without a doubt, “President of the Senate”. But he was not a “senator”.

The Constitution expressly distinguishes the President of the Senate from the actual senators. Article II. section 1 prescribes the role of the vice president during the joint session.

The president of the Senate will, in the presence Senate and the House of Representatives, open all certificates, and the votes will then be counted.

The President of the Senate is in addition to the senators.

Article I, Section 3, Clause 4 stipulates:

The Vice President of the United States shall be President of the Senate, but shall have no vote, unless they be equally divided.

Senators have a vote on all laws. The vice president does not.

For a long time, the debate about which branch of government belongs to the vice president for the purposes of the separation of powers has been simmering. But there is a very strong one textual proof that the Vice President is not a “Senator” for purposes of the Speech or Debate Clause.

The bigger surprise is that Pence did not invoke executive privilege. It’s possible that this “Speech or Debate” gambit is a not-so-serious attempt to fight off a subpoena, assert some institutional prerogative, and ultimately give the special counsel whatever he wants. (Much of what Pence knows is probably already in his book.) That may not matter so much, since Trump will try to invoke executive privilege to block Pence’s testimony.

Update: Gravel v. United States (1972) includes this line:

It is true that the clause itself mentions only ‘senators and representatives’, but previous cases have clearly not taken a literal approach in applying that privilege.

I hope that the scaled judiciary has a literal approach to the Constitution.

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