In February, 2023, former Vice President Mike Pence invoked the Speech or Debate Clause to challenge a subpoena from the Special Counsel. I explained that, as a matter of text, this argument didn’t fly. The Speech or Debate refers to “Senators and Representatives.” The Vice President is the President of the Senate, but is not a Senator. However, there are a string of precedents which could support a more functional reading of the Speech of Debate Clause. And, in June 2023, Judge Boasberg found that Vice President Pence received some protections under the Speech or Debate Clause for his role on January 6. I did not find that decision persuasive as a textual matter, but there is some precedent on point that the court followed.
Part III-B-2 of Trump v. United States reminded me of Pence’s case. Here, Chief Justice Roberts discussed whether President Trump’s communications with Vice President Pence leading up to, and during, January 6, would be immune from prosecution.
To be sure, the President has an interest in legislation that is being considered in the Senate. And, as President of the Senate, the Vice President plays a unique role in that process. If the Senate is evenly divided, the Vice President can cast a tie-breaking vote. Chief Justice Roberts explains that with respect to legislation, the President has an important role in having communications with the Vice President. These communications would be presumptively immune from any congressional regulations:
[O]ur constitutional system anticipates that the President and Vice President will remain in close contact regarding their official duties over the course of the President’s term in office. These two officials are the only ones “elected by the entire Nation.” Seila Law; see Art. II, §1. . . . And Article I of course names the Vice President as President of the Senate and gives him a tiebreaking vote. §3, cl. 4. It is thus important for the President to discuss official matters with the Vice President to ensure continuity within the Executive Branch and to advance the President’s agenda in Congress and beyond. The Vice President may in practice also serve as one of the President’s closest advisers.
I think that argument is correct when discussing legislative sessions. But does it work with regard to the joint session? The Constitution assigns the President of the Senate particular functions during the joint session of Congress. Roberts acknowledges that the President does not have a role in that process:
The question then becomes whether that presumption of immunity is rebutted under the circumstances. When the Vice President presides over the January 6 certification proceeding, he does so in his capacity as President of the Senate. . . . Ibid. Despite the Vice President’s expansive role of advising and assisting the President within the Executive Branch, the Vice President’s Article I responsibility of “presiding over the Senate” is “not an ‘executive branch’ function.” Memorandum from L. Silberman, Deputy Atty. Gen., to R. Burress, Office of the President, Re: Conflict of Interest Problems Arising Out of the President’s Nomination of Nelson A. Rockefeller To Be Vice President Under the Twenty-Fifth Amendment to the Constitution 2 (Aug. 28, 1974). With respect to the certification proceeding in particular, Congress has legislated extensively to define the Vice President’s role in the counting of the electoral votes, see, e.g., 3 U. S. C. §15, and the President plays no direct constitutional or statutory role in that process. So the Government may argue that consideration of the President’s communications with the Vice President concerning the certification proceeding does not pose “dangers of intrusion on the authority and functions of the Executive Branch.” Fitzgerald.
Yet Roberts signals that the President’s interest in legislation could still extend to the Vice President’s role in the joint session:
At the same time, however, the President may frequently rely on the Vice President in his capacity as President of the Senate to advance the President’s agenda in Congress. When the Senate is closely divided, for instance, the Vice President’s tiebreaking vote may be crucial for confirming the President’s nominees and passing laws that align with the President’s policies. Applying a criminal prohibition to the President’s conversations discussing such matters with the Vice President—even though they concern his role as President of the Senate—may well hinder the President’s ability to perform his constitutional functions.
Justice Sotomayor responds in her dissent:
The majority admits that the Vice President’s responsibility “‘presiding over the Senate’ ” is “‘not an “executive branch” function,'” and it further admits that the President “plays no direct constitutional or statutory role” in the counting of electoral votes. Yet the majority refuses to conclude that Trump lacks immunity for his alleged attempts to “enlist the Vice President to use his ceremonial role at the January 6 certification proceeding to fraudulently alter the election results.” Instead, it worries that a prosecution for this conduct might make it harder for the President to use the Vice President “to advance [his] agenda in Congress.” Such a prosecution, according to the majority, “may well hinder the President’s ability to perform his constitutional functions.” Whether a prosecution for this conduct warrants immunity should have been an easy question, but the majority turns it into a debatable one.
If the District Court is correct about the Vice President’s role, with regard to the Speech or Debate Clause, I think it would be harder to make the case that the President’s discussions with the Vice President about the joint session would not be immune.
