Vice President Mike Pence has reportedly hit on a clever and novel strategy for resisting a subpoena from special counsel Jack Smith in the Jan. 6 investigation. He is expected to argue that because the vice president serves as president of the Senate, the subpoena would violate the protections afforded legislative officials under the Constitution’s “speech or debate” clause. It may be just the argument Pence needs — not to successfully avoid providing evidence against Donald Trump so much as to emulate his former boss’s success in running out the clock.
This ground is much less plowed than the executive privilege argument commentators have been expecting Pence to raise. As I have emphasized since the subpoena was served last week, that argument should fail on the basis of several constitutional principles, chief among them the Supreme Court’s ruling, in United States v. Nixon, that even the president’s confidentiality concerns yield to the need for specific evidence in a criminal investigation.
Moreover, federal courts in Washington have made quick work of the executive privilege arguments in recent cases involving former White House counsel Pat Cipollone and his deputy, Patrick Philbin, and the Supreme Court has not reviewed their decisions. So an executive privilege argument might cause only a short delay in enforcement of the subpoena.
