![]() ![]() ![]() It is also possible that the courts will decide that the vice president simply has no privilege at all for questions relating to his legislative capacity. I assume, however, that the lower courts at least will operate within the confines of the recognized privileges. It is arguable that the unique nature of the vice presidency warrants the recognition of a new and separate privilege distinct from those available to the legislative and executive branches. As the Office of Legal Counsel wrote in a 1961 opinion : “Perhaps the best thing that can be said is that the Vice President belongs neither to the Executive nor to the Legislative Branch but is attached by the Constitution to the latter.” Exactly how to best characterize the vice presidency is something of a puzzle, but it is clearly not simply an executive branch office. Wright and Goodman seem to agree and cite several additional authorities on this point. 6, it makes little sense to treat him as an executive official. With respect to testimony related to Pence’s role as president of the Senate during the electoral count of Jan. This is consistent with how the courts have approached both speech or debate and executive privilege issues (although, as I discuss on the podcast, in other ways, these two doctrines are very different).Īs I wrote on Point of Order, I don’t think it is persuasive to argue that the vice presidency is a purely executive office. ![]() I think it is helpful to start off by dividing Pence’s potential testimony into one of three categories: (a) his official capacity as president of the Senate (that is, his legislative capacity), (b) his official but nonlegislative capacity (which would include executive functions delegated by the president), and (c) his personal or political capacity. I am less sanguine than they, however, about how long it will take for the courts to resolve this case. In my view, they have identified exactly the right questions and, as discussed below, for the most part I agree with their answers. (For more on this, you can listen to this Lawfare Podcast episode featuring Quinta Jurecic, Molly Reynolds, Eric Columbus, and me.)įortunately, Andy Wright and Ryan Goodman have written this thorough analysis on Just Security of the key legal issues the courts will need to resolve in ruling on Pence’s motion to quash the subpoena. Here, I will consider the implications of that conclusion for Pence’s claim of speech or debate immunity. On my blog, Point of Order, I explained why the conventional view of the vice president as a purely executive officer is mistaken. But there is more to Pence’s argument than there might initially seem-or, at the very least, enough to allow Pence to substantially delay his testimony. It may sound strange to hear a vice president invoke a constitutional protection designed to safeguard the independence of the legislative branch. 6 has precipitated a great deal of debate on the nature of the vice presidency and whether Pence is, as he claims, immune from questioning under the Speech or Debate Clause of the Constitution. Former Vice President Mike Pence’s announcement that he plans to resist a subpoena from a grand jury investigating potential crimes in connection with Jan. ![]()
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