Mike Pence Has Some Good F-ing Lawyers

Whatever Mike Pence is paying his lawyers, it isn't enough. Seriously, round of applause for managing to come up with a legal argument against testifying against Donald Trump which was anticipated by no one, and is not batshit crazy.

To recap: Last week it emerged that the former vice president had received a subpoena from Special Counsel Jack Smith to testify before the grand jury investigating Donald Trump's role in the January 6 Capitol Riot. In Wonkette's write up, I told you that there were two possibilities: Either he'd fight the subpoena on executive privilege grounds, or he'd go along with it. Other commentators suggested he'd sit back and let Donald Trump's lawyers fight on his behalf.

But Donald Trump's lawyers' win-loss record is ... nothing to write home about — which is a thing that happens when you're the world's worst client and can't hire the the best in the business. In contrast, Mike Pence is probably a pretty good client, in that he's solvent and not floridly insane, so he's likely to follow his lawyer's instructions. And so he was able to retain Emmett Flood, one of the best lawyers in DC, to represent him in negotiations with the Special Counsel. Flood represented Trump in the Mueller Investigation, and before that he represented Hillary Clinton in her email investigation, among many other high-profile political clients. But the famed lawyer turned Trump down flat when he tried to hire him after leaving the White House.

Instead, Flood is representing Pence, who is now making the argument that he cannot be forced to testify about anything related to the January 6, 2021, electoral certification because he has legislative immunity under the Constitution's Speech or Debate Clause.

But wasn't Pence part of the executive branch as vice president? How can be covered by congressional immunity?

He was! But Pence's role on January 6 was as president of the Senate, and so he argues that he "shall not be questioned in any other place" about what he did there.

It's fucking genius!

Pence's executive privilege claim was wobbly at best — his aides Greg Jacob and Marc Short (who is also repped by Flood) already tried that and got shot down at the DC Circuit. Executive privilege is a judicially crafted doctrine, subject to interpretation, and easily defeated by law enforcement prerogatives. But speech or debate immunity cannot be pierced, so if you have it ... you have it, and a court can't take it away.

Which is not to say that this argument is a slam dunk. Whether the vice president is functionally a legislator when acting as president of the Senate has never been tested in court. And if he was somehow a political chimera, simultaneously part of the legislative and executive branches, did that extend to his arguments with Trump about whether to mount an electoral coup? Could Pence be president of the Senate when the Senate wasn't even gaveled into session?

No one knows how the current Supreme Court would answer these questions. But if Pence fights the subpoena, he can almost certainly drag this process out through the end of Biden's first term. And the New York Times reported this weekend that Special Counsel Smith wants to wrap this thing up as expeditiously as possible in light of next year's presidential election. So if Pence fights it, he'll probably be able to deprive Smith of his testimony.

Naturally, being Mike Pence, he's framing this gambit as part of his deeply considered fealty to the Constitution and his office, rather than a ploy to avoid pissing off the base before he makes a run for the presidency.

“He thinks that the ‘speech or debate’ clause is a core protection for Article I, for the legislature,” a source in Pence's camp told Politico, which broke the story. “He feels it really goes to the heart of some separation of powers issues. He feels duty-bound to maintain that protection, even if it means litigating it.”

Hahaha, fuck off. And also, mad props for hiring the best lawyers in the country and doing exactly what they told you to do.

Is there an alternate universe where a (lobotomized?) Trump hires good lawyers and listens to their advice, thereby staying out of trouble and staging a spectacular political comeback? We will never know. But there is no better evidence than this that we would be in a very different place if Trump had conducted himself in such a way that he'd been able to hire competent counsel.


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Liz Dye

Liz Dye lives in Baltimore with her wonderful husband and a houseful of teenagers. When she isn't being mad about a thing on the internet, she's hiding in plain sight in the carpool line. She's the one wearing yoga pants glaring at her phone.


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