You ready?

I was born ready.

Welcome to advisory opinions. I'm your host, Sarah Izger, joined by host, Emeritus, David, French, and we have a lineup for you today.

We're going to start with the special council investigation into Donald Trump and some hip happenings over there, Mike Pence, Evan Corcoran, one of Trump's lawyers, both trying not to testify and will their arguments work.

Next up, the second circuit announces that they're going to hear that trans athlete right to compete case on Bunk. Then we've got a social media first amendment case, another one.

And finally, having your gun visible on Snapchat.

What does that allow the police to do?

We'll find out more on advisory opinions. David, let's start Mike Pence is planning to resist special counsel Jack Smith's subpoena.

This is interesting because I think everyone was expecting that to be on executive privilege grounds, but that's not what they did.

We are resisting the subpoena on speech and debate clause grounds, the speech and debate clause, of course, being a near absolute immunity, if you are a member of the House and the Senate, the speech and debate clause, of course, giving near absolute immunity in a lot of these cases to members of the House and Senate, but Mike Pence, was a member of the executive branch, or was he?

He turns out as vice president, of course, he is also a deciding vote in the Senate.

And funny enough, do you know who's made the argument probably more than anyone else that the vice president is protected by the speech and debate clause?

That would be the Department of Justice repeatedly and many times over.

David, just off the top of your head, thoughts, feelings on whether this will work, whether the speech and debate clause should protect the vice president, what do you think?

Yeah, I would say it will work to a very limited extent. And we're not really reinventing the will, will here because remember, we actually talked before about Lindsey Graham.

And Lindsey Graham's efforts to avoid testifying in the Georgia criminal probe, relying on speech and debate clause, essentially that what he's doing is he's engaging in a legislative function by engaging in information gathering as part of his legislative function.

And so the 11th circuit, and nobody doubts that a senator, a senator is going to be immune or a senator is going to be subject to the speech and debate clause or benefit from the speech and debate clause.

And so essentially what the 11th circuit did is that it said, well, yeah, the speech and debate clause exists.

But it's not a blanket shield from testimony. And so I'm reading from a an article in law fair about the 11th circuit ruling.

It says in a six page order. This is relatively recent October of 2022.

The 11th circuit panel rejected Graham's emergency motion to stay in August 19 district court order, requiring him to testify before the Fulton County special grand jury, finding that Graham's claims of total immunity under the speech and debate clause were invalid.

More specifically the court ruled that Georgia prosecutors could question Graham about phone calls as well as communications and coordination with the Trump campaign regarding its post election efforts in Georgia public statements regarding the 2020 election and efforts to cajole or exhort Georgia election officials.

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