The Vice-President and the Speech or Debate Clause

Prof. Glenn Reynolds (Tennessee, Instapundit) has an item on his Substack about the Vice President Mike Pence / Speech or Debate Clause controversy, based on a Northwestern University Law Review article that he wrote on the Vice President’s role in 2008. An excerpt:

Pence, now, is arguing that by presiding on January 6, 2021, he was serving as a legislative official, and thus that his actions and words are covered by the Speech and Debate Clause, making it improper for the special prosecutor to question him. This argument may or may not be correct, but it is not at all crazy, and even in the context of an oped that is more about politics than the law, [former Fourth Circuit Judge Mike ] Luttig should have taken it more seriously.

There are arguments both ways. Textually, the Clause applies only to “Senators and Representatives”—its actual language is “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.”

However, presiding over the Senate is surely a legislative function par excellence. In other cases involving governmental immunity, the Court has taken a functional approach: If you’re acting as a judge or a prosecutor in an administrative proceeding, for example, you’re entitled to the absolute immunity accorded to judges and prosecutors, regardless of your job title. Under this approach, Speech and Debate protection for the Vice President seems like a no-brainer. And the Supreme Court, in Gravel v. United States, held that an aide who functions as an alter ego to a legislator can qualify for legislative immunity, which illustrates that the text’s limitation to Senators and Representatives is not absolute.

On the other hand, the Supreme Court has, somewhat bizarrely, taken a narrower view of legislative immunity, which is mentioned in the text of the Constitution, than it has taken with regard to the qualified immunity of government officials generally, and the absolute immunity of prosecutors and, ahem, judges, though the latter is entirely a judicial creation, without any constitutional or statutory roots. It is thus entirely possible that it will be a stickler for textual analysis in this case—though to be fair, where the judicially-invented immunities are concerned, there is no text at all to worry about….

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