Former judge who advised Pence critiques his rejection of special counsel's subpoena
Washington —When former Vice President Mike Pence was subpoenaed by special counsel Jack Smith, who is investigating any involvement by former President Donald Trump in the events surrounding the Jan. 6 Capitol riot, he soon announced his opposition to testifying. He called the subpoena "unconstitutional," arguing that under the Constitution, "the executive branch cannot summon officials in the legislative branch into a court in any other place."
As vice president, Pence was a member of the executive branch during the Trump administration but also held the unique role of president of the Senate and presided over the joint session of Congress that certified the 2020 Electoral College votes. On the basis of the responsibilities related to the election, he is invoking the Constitution's Speech or Debate clause, which protects members of Congress from being questioned about their legislative actions by other branches of the federal government. Pence's legal team plans to argue that he should not have to testify, in part because of the duty he fulfilled on Jan. 6, 2021.
"On the day of January 6, I was acting as president of the Senate, presiding over a joint session described in the Constitution itself. So I believe that that Speech and Debate clause of the Constitution actually prohibits the executive branch from compelling me to appear in a court, as the Constitution says, or in any other place," Pence said this week in Iowa, "We'll stand on that principle and we'll take that case as far as it needs to go, if it needs be to the Supreme Court of the United States."
This argument is likely to result in sealed court hearings and legal briefs filed under seal, as Pence's team and federal prosecutors try to convince a federal judge in Washington, D.C. that their interpretation of the law is the right one.
One prominent conservative legal voice — whose counsel Pence sought after the 2020 election — has cast doubt on Pence's legal strategy. Former federal Judge Michael Luttig, a staunch conservative jurist who personally advised Pence that he did not have the unilateral power to overturn Joe Biden's victory, wrote on Twitter that while the issue raised is an "unsettled question of constitutional law," any privileges a vice president obtains from his or her role in Congress are "few in number and limited in scope."
Luttig, who testified before a House Jan. 6 select committee hearing about his advice to Pence regarding the presidential electors, wrote on Thursday that any immunity Pence would have under the Speech or Debate Clause would not be sufficient to reject the subpoena.
"If there are privileges and protections enjoyed by a Vice President when he or she serves as the President of the Senate during the Joint Session to count the electoral votes, those privileges and protections would yield to the demands of the criminal process," Luttig wrote. The protections Pence plans to invoke, he contended, will likely not apply.
CBS News has reached out to Pence's team for any reaction to Luttig's analysis.
Scott Fredericksen, a former federal prosecutor and independent counsel, says Luttig's skepticism is warranted.
"I don't think it's viable," he said of Pence's claim of privilege. "Is it an open question? Technical yes, because there has never been a ruling from a court, let alone the Supreme court" on the issue.
But he continued, "I think it is highly unlikely that it would be viable, highly unlikely that it would be sustained by a court."
Fredericksen says a few factors weigh heavily against Pence's claim of privileged status as a legislator: Pence was not an elected member of Congress at the time, and he has repeatedly asserted that his role on Jan. 6 was a ceremonial one.
After a concerted pressure campaign by Trump and his allies to convince Pence to deny Mr. Biden's victory in the joint session of Congress and return the issue to the states, Pence publicly revealed some of his conversations with Trump and characterized his role that day as merely presiding over the lawmakers, both of which Smith's team of prosecutors have likely taken into consideration.
The unique legal strategy Pence is now taking, according to Fredericksen, may still be a smart one politically because it could delay any testimony against his former boss just as the presidential primary season is getting underway.
A former senior Justice Department official, who spoke with CBS News on the condition of anonymity to speak freely, differs from Luttig and suggests that Pence's legal theory is "credible."
"The notion that he should enjoy a legislative immunity seems likely to be correct," the former official said, "To the extent that the question is, 'was the Vice President seeking to get information on how to carry out his legislative duties,' that would apply."
Still, the former Justice Department official said many questions are raised by Pence's assertion of this broad and novel privilege, like the scope of his duties in the Senate and the issues prosecutors seek to cover in the questioning.
"I think it's credible but, whether it will apply is something the courts will figure out," the former official added.
Pence is not the first official in Trump's orbit to claim legislative immunity in an attempt to quash a subpoena. South Carolina Sen. Lindsey Graham asked the courts to block him from testifying before a special grand jury in Fulton County, Georgia, investigating allegations of election interference by Trump and his allies. Ultimately, a federal judge ruled Graham had to testify, but could avoid questions that explicitly dealt with his role as a lawmaker. The Supreme Court declined the senator's request to further consider the issue.
The former vice president himself was sued in a civil action brought by Texas GOP Rep. Louie Gohmert over Pence's role in certifying the results of the presidential election. The Justice Department during the Trump administration, in defending Pence, wrote that the Speech or Debate clause could offer protection to the vice president "in his official capacity as the President of the Senate."
And the federal appeals court in Washington, D.C., is reportedly adjudicating a secret case concerning Rep. Scott Perry and the seizure of his cell phone by federal investigators. The Pennsylvania Republican had previously argued similar legislative immunity shielded him from such acts. A hearing is set for late next week.
Both Fredericksen and the former Justice Department official agree it is likely some of these legal issues were raised by Smith's team, but not issuing a subpoena to Pence could have left them vulnerable if they decide to bring a case against Trump.
"You learn as a prosecutor you have to bring every important witness in or face the prospect of a defense attorney pointing out their absence" to a jury, Fredericksen noted.
"They fully expect to have this challenge," he said, echoing Luttig's analysis, but the demands of the criminal investigation could surmount any attempt by Pence to avoid testifying.
Smith's office declined to comment.