According to reports, former-Vice-President Mike Pence will challenge the special counsel’s subpoena by invoking the “speech or debate” clause. Politico cited an anonymous source:
Pence’s allies say he is covered by constitutional provisions that shield congressional officials from legal process related to their work — language known as the “speech or debate” clause. Pence’s aides say the clause legally compels federal prosecutors to compel Pence to testify about central elements of Smith’s investigation. If Pence testifies, they say, it could jeopardize the separation of powers that 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 that really goes to the heart of some of the issues of separation of powers. He feels obligated to maintain that protection, even if it means getting sued.”
The speech or debate clause appears along with several other provisions in Article I, Section 6:
The Senators and Representatives shall receive a compensation for their services, to be guaranteed by law, and to be paid out of the treasury of the United States. they are In all cases except sedition, felony, and breach of the peace, shall be privileged from arrest while attending the sessions of their respective houses, and in going thereto and returning; and for any speech or debate in either house, they are Will not be interrogated anywhere else.
The word “they” refers to “senators and representatives”, which appears at the beginning of the paragraph. The Vice President is not a “Senator”. Not a member of the legislative branch, or that affects anything. “Senator.” text matter. He was “President of the Senate” without question. But he was not a “Senator”.
The Constitution clearly contrasts the senate president and actual senators. Article II, Section 1, describes the role of the Vice President during joint sessions.
The President of the Senate will, in presence The Senate And the House of Representatives, open all the certificates, and then the votes will be counted.
The President of the Senate is apart from the Senators.
Section I, Section 3, Section 4 provides:
The Vice President of the United States shall be President of the Senate, but shall have no vote, unless equally divided.
Senators have a vote on all legislation. The vice president does not.
There has been a long-standing debate over which branch of government the vice president belongs to for purposes of separation of powers. But there are very strong the text Evidence that the Vice President is a “Senator” for purposes of the Speech or Debate Clause.
The biggest surprise is that Pence did not invoke executive privilege. It’s possible that this “speech or debate” gambit could be a not-so-serious attempt to fight subpoenas, stand up for some institutional privilege, and ultimately give the special counsel he wants. (Most of what Pence knows is probably already in his book.) That may not amount to much, as Trump will try to invoke executive privilege to block Pence’s testimony.