Balkinization  

Tuesday, February 14, 2023

The Speech and Debate Clause?

Gerard N. Magliocca

Press reports today say that former Vice President Pence plans to oppose a subpoena from the Special Counsel investigating his former boss. One asserted ground for this position is that the Speech and Debate Clause of Article I shields him from such questions because he was President of the Senate on January 6th, 2021.

This is probably wrong many times over. First, there is the age-old problem of whether the Vice President is properly viewed as (a) a member of the Executive Branch; (2) a member of the Senate; (3) both; or (4) neither. The Speech and Debate Clause could apply to Pence only if you consider him part of the Senate. Second, the Vice President does not engage in Speech or Debate in Congress. Accordingly, the functional role of the provision does not apply to Pence even if you think of him as part of the Senate. Third, I do not think that the privilege prevents members from being questioned about alleged crimes committed by other people who are not members of Congress. Finally, the Speech and Debate Clause contains exceptions for felonies and "breach of the peace" that might apply here.


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