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The Lawfare Podcast

Can the Speech or Debate Clause Shield Mike Pence from a Subpoena?

The Lawfare Podcast

The Lawfare Institute

Politics, Terrorism, National Security, News, Foreign Policy, Diplomacy, Intelligence, Rule Of Law, Military, Constitutional Law, Current Events, International Relations, History, International Law, Government, Law

4.76.4K Ratings

🗓️ 22 February 2023

⏱️ 53 minutes

🧾️ Download transcript

Summary

Special Counsel Jack Smith has issued a subpoena to former Vice President Mike Pence as part of the investigation into Trump’s role in instigating the Jan. 6 riot. But Pence has said he’ll fight the subpoena. And he’s pointed to the Speech or Debate Clause—a constitutional immunity that protects members of Congress—on the argument that he was acting as part of the legislative branch when he presided over the electoral count on January 6, 2021.

Setting aside Pence’s motives for taking this approach, the merits of the legal argument are less crazy than they might sound. Lawfare senior editors Quinta Jurecic and Molly Reynolds sat down to talk through these issues with two former congressional lawyers: Eric Columbus, who recently served as Special Litigation Counsel in the House Office of General Counsel under Speaker Nancy Pelosi, and Mike Stern, a former senior counsel to the House of Representatives.

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Transcript

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0:00.0

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become a material supporter of LawFair at patreon.com slash law fair.

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That's patreon.com slash law fair.

0:18.0

Also, check out LawFair's other podcast offerings,

0:22.0

rational security, chatter, law fair no bull, and the aftermath.

0:29.0

If they had asked him to go in there and detonate a bomb

0:39.0

that would prevent Congress from filling its duties,

0:42.0

everyone would agree that that would not have been a legislative act.

0:47.0

Yet, by the same token, asking Pence to somehow magically rule

0:52.0

that a electoral vote should be sent back to the states

0:55.0

for further investigation was equally outside of the realm of his powers.

0:59.0

So I don't think that they were at what Trump and company were trying to get

1:04.0

Pence to do should be considered a legislative act

1:08.0

and therefore under the protection of the speech-reader-based laws.

1:11.0

I'm Quinted Jurassic, senior editor at LawFair.

1:14.0

And this is the LawFair podcast, February 22, 2023.

1:21.0

Special counsel Jack Smith has issued a subpoena to former vice president Mike Pence

1:27.0

as part of the investigation into Trump's role in instigating the January 6 riot.

1:33.0

But Pence has said he'll fight the subpoena.

1:36.0

And he's pointed to the speech-reader-based laws,

1:39.0

a constitutional immunity that protects members of Congress,

...

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