Mike Pence Will Fight Jack Smith Subpoena–But Not On Executive Privilege Grounds

A lot of things happened. Here are some of the things. This is TPM’s Morning Memo.

Expect A Long Legal Battle

Former Vice President Mike Pence is expected to announce publicly as soon as Wednesday during a pre-campaign stop in Iowa that he will fight a grand jury subpoena arising from Special Counsel Jack Smith’s Jan. 6 investigation, Politico reports.

But rather than contesting the subpoena on executive privilege grounds, Pence is expected to seek refuge in the Constitution’s Speech and Debate Clause, arguing that he was acting in his capacity as president of the Senate, a legislative branch role, according to the Politico report out this morning. The Speech and Debate Clause protects members of Congress from undue intrusion by the executive branch.

• Legal experts tell Politico there’s an arguable basis for Pence’s Speech and Debate Clause defense but that it remains an unsettled area of law, meaning a court fight could drag on for some time.
• The Justice Department itself has previously argued that the vice president in his role as Senate president is covered by the Speech and Debate Clause, but the exact scope and contours of the legislative immunity it offers remain unclear and largely untested.
• Pence’s lawyer is Emmet Flood, who represented then-Vice President Dick Cheney in the Valerie Plame affair. Cheney was of course renowned for exploiting the unique dual-hat role of the vice presidency as an executive and legislative branch official to secure and maximize his power.

Fending off Smith’s subpoena carries obvious political advantages for Pence, who is expected to seek the GOP nomination for president in 2024. It allows Pence to avoid testifying against Donald Trump and sidesteps getting entangled with Trump in raising executive privilege arguments.

Aside from the legal and political vagaries, the move to fight a grand jury subpoena would be another example of the extreme lengths Pence has gone to try to finesse his complicated relationship with Trump and his own personal political ambitions. The not-so-delicate dance has yielded a wandering and inconsistent response to Trump’s efforts to subvert the 2020 election: While Pence was hailed as a hero for not acquiescing to Trump’s demands to throw out the Electoral College count on Jan. 6, there remain suspicions that Pence played along well after Election Day with the efforts to overturn the result. Similarly, while Pence wrote a memoir that did confront Trump and offered some details about their fight over Jan. 6, Pence refused to testify to the Jan. 6 select committee.

Pence’s willingness to write about Jan. 6 in his book also may have had the effect of waiving some of his potential executive privilege defenses to the Smith subpoena: You can’t publicly speak about confidential executive branch deliberations on the one hand, and then refuse to divulge them to a grand jury on the other. It’s not clear that such a waiver would apply in the context of the Speech and Debate Clause, or whether Pence individually can waive a privilege of the legislative branch.

To be clear, I’ve barely skimmed the surface of the constitutional issues potentially at play here. The key takeaway is that Pence has found a viable legal defense that serves his political purposes and that could take Jack Smith quite some time to litigate, while the clock continues to tick toward the 2024 election.

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Happy Valentine’s Day!

Sure hope you didn’t forget.

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