In February, there was a flurry of debate about whether the Vice President is covered by the Speech or Debate Clause. Recall that the text expressly applies to "Senators and Representatives." As a textualist matter, the Vice President is not a "Senator" or "Representative." Thus, he would not be covered. Alas, many of the precedents interpreting this provision were set in an era where textualism was subordinate to flexible, purposivist analyses. For example, Gravel v. United States (1972), per Justice White, includes this line:
It is true that the Clause itself mentions only 'Senators and Representatives,' but prior cases have plainly not taken a literalistic approach in applying the privilege.
In February,"I would hope[d] that the Scaliafied judiciary takes a literal approach to the Constitution." Judge Boasberg of the District Court for the District of Columbia declined, and found that Vice President Pence received some protections under the Speech or Debate Clause for his role on January 6.
