In February 2023, former Vice President Pence invoked the speech or debate clause to challenge the special prosecutor’s subpoena. I explained that, literally, this argument did not hold up. A speech or debate refers to “senators and representatives.” The Vice President is the President of the Senate, but not a Senator. However, there is a range of precedents that support a more pragmatic reading of the debate speech clause. And, in June 2023, Judge Boasberg found that Vice President Pence had some protections under the Speech or Debate Clause because of his role on January 6. , but there is some precedent for courts to follow suit.
Section III-B-2 Trump v. United States Reminds me of the Pence example. Chief Justice Roberts discusses here whether President Trump’s communications with Vice President Pence before and during January 6 are immune from prosecution.
To be sure, the president is interested in the legislation before the Senate. And, as President of the Senate, the Vice President plays a unique role in this process. If the Senate is tied, the vice president can cast the deciding vote. Chief Justice Roberts explained that when it comes to legislation, the president plays an important role in communicating with the vice president. These communications will not be subject to any congressional statute:
[O]Our constitutional system anticipates that the President and Vice President will maintain close contact regarding their official duties during the Presidential term. These two officials are the only officials “elected nationally”. Sailor’s Law; See Art. II, §1. . . . Article 1, of course, appoints the Vice President as President of the Senate and gives him the tie-breaking vote. §3,cl. 4. Accordingly, the President must discuss official matters with the Vice President to ensure continuity of the executive branch and to advance the President’s agenda within and outside Congress. The vice president may also actually serve as one of the president’s closest advisers.
I think this argument is valid when discussing legislative sessions. But is this useful for joint meetings? The Constitution gives the President of the Senate special functions during joint sessions of Congress. Roberts admitted the president had no role in the process:
The question then is whether the presumption of immunity would be rebutted in this case. When the Vice President presides over the certification process on January 6, he does so in his capacity as President of the Senate. . . . Same as above. While the Vice President’s role in advising and assisting the President within the executive branch is broad, the Vice President’s first duty to “preside over the Senate” is to “Not an ‘executive branch’ function. Memorandum from Deputy Counsel L. Silberman. To General R. Burress, Office of the President, Reply: Conflict of Interest Issues Raised by the President’s Nomination of Nelson A. Rockefeller as Vice President under the Twenty-fifth Amendment to the Constitution 2 (August 28, 1974). Particularly with regard to the certification process, Congress has enacted legislation broadly to define the Vice President’s role in the electoral vote count, see, For example3 USC §15, The President plays no direct constitutional or statutory role in this process. Therefore, the administration may argue that consideration of the president’s communications with the vice president regarding the certification process does not pose “a danger of infringement of the powers and functions of the executive branch.” fitzgerald.
Roberts said, however, that the president’s interest in legislation could still extend to the vice president’s role in the joint session:
At the same time, however, the president may often rely on the vice president in his capacity as President of the Senate to advance the president’s agenda in Congress. For example, when the Senate is deeply divided, the vice president’s tie-breaking vote can be critical in confirming presidential nominees and passing laws consistent with the president’s policies. Imposing a criminal ban on conversations between the President and the Vice President discussing such matters—even if those conversations involve his role as President of the Senate—would likely impede the President’s ability to carry out his constitutional functions.
Justice Sotomayor responded in her dissent:
The majority acknowledged that the vice president’s duty to “preside over the Senate” “is not an “executive branch” function” and further acknowledged that the president “plays no direct constitutional or statutory role” in counting votes cast. However, the majority declined to conclude that Trump lacked immunity for allegedly trying to “enable the Vice President to use his ceremonial role during the January 6 certification process to fraudulently change the outcome of the election.” Rather, it worries that prosecuting such conduct could make it more difficult for the president to use the vice president “to advance [his] Congressional agenda. It became a controversial issue.
If the district court is correct about the Vice President’s role, I think it would be difficult to argue that discussions between the President and the Vice President regarding joint meetings would not be exempt as far as the Speech or Debate Clause is concerned.
