After having claimed that he was immune, as an executive, from having to answer questions from the January 6 Committee, former Vice President Mike Pence is now trying the opposite strategy to avoid a subpoena from special counsel Jack Smith and claiming, as President of the Senate, his actions at the time of the attack are shielded by the Speech and Debate Clause of the Constitution.
But this strategy is ultimately doomed to fail, argued former White House ethics czar and impeachment counsel Norm Eisen in conversation with CNN’s Bianna Golodryga on Tuesday.
“So what do you make of this rather novel strategy from the former vice president and his lawyers?” asked Golodryga.
“Bianna, the executive privilege argument to resist testifying as failed,” said Eisen. “So now they’re pulling another arrow from the quiver of constitutional defenses, but it’s not gonna work because there is no absolute speech or debate immunity for a vice president or anyone else from showing up and answering the kinds of questions we have here.”
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“First, if you look at the Speech and Debate clause, it says senators and representatives, not Presidents of the Senate or other constitutional officers,” said Eisen. “He was not a senator, he was not a representative. So he loses on that ground. And then the clause is also limited to speech or debate in either house. So if he was saying, well, I don’t want to be questioned about what I was thinking when I was sitting in the chair, presiding over the chamber, that’s one thing. But it’s dubious whether that blocks all questions about everything that happened in the runup.”
“So you if you were to advise Mike Pence, which you are not, you say the better solution would have been to follow the Lindsey Graham path, and that is just to show up and answer each question by question and take it from there?” asked Golodryga.
“Well, if I were advising Mike Pence, I would have to give him not only legal advice, but political advice,” said Eisen. “Pence is in a political pickle, not just a legal one, because he doesn’t want to look like he’s cooperating with this investigation. He did the same thing, Bianna, with the January 6 investigation. He has to put up a show of resistance. So I think that may be the right thing for him with the Republican primary electorate. It is not the right thing for America, however, and so I do think from a legal perspective he should say, I’ll show up, I’ll answer questions and if some of them are constitutionally prohibited, I’ll object.”
“There is no blanket immunity of this kind for a vice president under the Speech or Debate Clause,” Eisen added. “This will just prolong this investigation.”
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Norm Eisen says Pence plan to avoid DOJ testimony won’t work
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