In response to my post yesterday on the scope of the Speech and Debate Clause privilege, Professor Michael McConnell e-mailed to suggest I was too quick to credit claims that the former Vice President is covered by the clause at all. Like others, I had focused on the question of whether the Vice President's duties, as related to counting electoral votes, should be considered "legislative" in character and, if so, the extend to which that privilege would yield to criminal process. Whether the privilege extends to the Vice President at all, however, is an antecedent question.
As Professor McConnell notes, the text of the Constitution appears to limit the privilege to "The Senators and Representatives." Here is the relevant text from Article I, Section 6, clause 1:
The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.
