Pence is making a specious legal argument for not testifying

February 15, 2023 1:49 pm

Mother should I run for president? Photo by Chip Somodevilla/Getty Images.

Former President Trump and his legal team have been pilloried for their dubious practices and tactics in the plethora of lawsuits in which the ex-president has been engaged since the election.

Now, his former Vice President Mike Pence, who is in Minnesota Wednesday, is doing him one better by coming up with an even more cockamamie legal position in opposing the subpoena issued to him. He’s been called to testify about his conversations with Trump leading up to the Jan. 6 insurrection in the pending criminal investigation.

Rather than claiming executive privilege, which he apparently is wisely eschewing, Pence reportedly will rely upon the “speech or debate” clause of the U.S. Constitution, which immunizes members of Congress from litigation for their remarks or actions while carrying out their duties and related matters.

As an attorney involved in cases concerning that clause and its counterpart in the Minnesota Constitution, it’s clear beyond cavil that the position of Pence and his legal squadron is a folly.

There may be political and strategic reasons  for them to raise this claim, although even they are dubious, but there are multiple legal grounds to reject it.

To name but a few:

The measure, by its terms, applies solely to members of Congress, “Senators and Representatives,” and Pence was neither at the time of his communications with Trump. (His argument ought not appeal to “strict constructionist” interpreters of the Constitution.)

The provision — as repeatedly interpreted by federal and state courts, including those here in Minnesota — covers only Congressional actions undertaken in the process of legislating or investigating. Pence was doing neither.

And, the clause does not extend to compulsory testimony in criminal proceedings, which is what Pence was subpoenaed for by special prosecutor Jack Smith.

But, wait, there’s more!

Pence declined the invitation to speak to the Jan. 6 investigative committee on grounds that, as a member of the executive branch, his testimony would improperly infringe on the separation-of-powers doctrine. Now, chameleon-like, he is morphing into a member of the legislative branch, a confusing amalgamation like Vincent Price turning into a half-man/half insect in the classic movie “The Fly.” It’s an argument that should not fly.

Furthermore, Pence has described at length — but not under probing inquiry or oath — his discussions with the 45th president in his ponderous book “So Help Me God” and while promoting  it on the talk show circuit.

This would seem to constitute a waiver of any claimed right to refuse to testify before a grand jury.

Pence has managed to place himself between the proverbial rock-and-a hard place in trying to avoid antagonizing the ex-president and the Trump base in the event the former veep decides to run for president, against Trump and others, while complying with the law and not lying under oath and be charged with perjury.

But advancing specious legal arguments to avoid testifying about the ex-president’s vices is not going to extract the former vice president from that vice.

Our stories may be republished online or in print under Creative Commons license CC BY-NC-ND 4.0. We ask that you edit only for style or to shorten, provide proper attribution and link to our web site. Please see our republishing guidelines for use of photos and graphics.

Marshall H. Tanick
Marshall H. Tanick

Marshall H. Tanick is a Twin Cities employment law attorney with the law firm of Meyer Njus Tanick.