Sanctimonious Mike Pence Is Obstructing Justice By His Failure To Testify To The Special Counsel And Criminal Grand Jury

Above image from GOD’S PLAN FOR MIKE PENCE, by McKay Coppins.

The New York Times reported, Pence to Oppose Subpoena Seeking Testimony in Jan. 6 Inquiry:

Former Vice President Mike Pence is planning to fight a federal grand jury subpoena compelling him to testify in the investigation into President Donald J. Trump’s actions leading up to the riot at the Capitol on Jan. 6, 2021, according to a person familiar with Mr. Pence’s plans.

Mr. Pence is expected to argue that the vice president’s role as the president of the Senate means that he is protected from legal scrutiny of his official duties by the Constitution’s “speech or debate” clause, intended to protect the separation of powers.

Mr. Pence’s plans were first reported by Politico.

The “speech or debate” clause shields members of Congress from law enforcement scrutiny over their statements and actions related to their legislative responsibilities. It specifically states that lawmakers “shall not be questioned in any other place” about their legislative duties.

It is not clear whether or how the Justice Department might argue against Mr. Pence’s effort to invoke the clause in this case.

MSNBC’s Lawerence O’Donnell gave an excellent tutorial on the speech and debate clause, explaining why Mike Pence is full o’ shit in making this assertion. (begins at 1:19 mark):

Laurence Tribe, professor of constitutional law emeritus at Harvard Law School, and Dennis Aftergut, a former federal prosecutor, is currently of counsel to Lawyers Defending American Democracy, write at Salon, Mike Pence wags the dog: His attempt to avoid testifying is constitutional nonsense:

Former Vice President Mike Pence’s faulty reasoning for resisting Justice Department special counsel Jack Smith’s subpoena has found its way to Pence’s conservative defenders, perhaps with some guidance from his political advisers. Regrettably, he and they misconceive the application of the U.S. Constitution’s “speech or debate” clause to a criminal investigation and have the constitutional tail wagging the dog.

The “tail” is slim legal grist misused to conceal Pence’s crucial testimony from a grand jury. The dog that flailing tail is trying to shake is the grand jury’s search for truth about a self-serving president’s apparent attempt to overturn the election and thus the Constitution.

Pence’s evidence goes straight to the heart of a crime against democracy that nearly succeeded. The truth he now seeks to hide is a truth he once embraced — that no republic can tolerate a rejected head of state’s effort to overthrow it by sabotaging the constitutional process that certifies his defeat and loss of power.

Today, in a complete reversal of principle, the only thing Mike Pence is standing up for is his own presidential aspirations. He fears offending the MAGA base by testifying against Trump. It is sadly Shakespearean when a man who courageously helped preserve and defend the Constitution allows personal ambition and fake legalism to lure him into a legacy-destroying fall.

The speech or debate clause provides that “Senators and representatives … shall not be questioned in any other Place” than Congress about “any Speech or Debate in either House.” Unfortunately for Pence’s claim, the Supreme Court ruled in 1972 that the clause does not “immunize a Senator or aide from testifying at trials or grand jury proceedings involving third-party crimes where the questions do not require testimony about or impugn a legislative act.” That is exactly the sort of testimony that Smith and his grand jury seek.

Imagine this scenario: Suppose that before the Trump second impeachment vote in February 2021, Sen. Susan Collins had received a phone call threatening her family’s safety if she voted to convict Trump. Say she reported it to the FBI, the assailant was caught and, for whatever unlikely reason, Collins didn’t want to testify against him. Although the call clearly related to a legislative matter — how she would vote — there is no conceivable way that the speech or debate clause would immunize her from testifying.

Jack Smith wants to know what Trump said to Pence when no one else was in the room. Is there any imaginable universe in which the former president, bent as he was on carrying out a scheme to overturn the people’s will, did not say something corrupt as he sought Pence’s help to carry out that unlawful scheme?

Suppose, for example, that Trump said, “Look, Mike, it doesn’t matter who won on Nov. 8. We have alternate electors in seven states who will cast votes for us. Just say there is a dispute, and we are going to pause the congressional certification for 10 days to resolve it. I’ll support you for president in 2024.”

It is well within the realm of possibility that Trump added that he couldn’t protect Pence from MAGA supporters if Pence resisted.

Any such statements would provide potentially powerful evidence of a criminal state of mind. So could statements that Trump may have made in other meetings where he and Pence were alone or where Pence was present in a larger group. Pence may also have witnessed statements made to Trump in such meetings about the lack of evidence of any widespread fraud, which would be important to prove Trump’s criminal knowledge in firing up the Jan. 6 mob on false pretenses.

On Thursday, retired federal Court of Appeals Judge J. Michael Luttig, the conservative judicial icon who advised Pence before Jan. 6, set out in a remarkable series of tweets why neither Smith nor any court should accept Pence’s faulty arguments. The judge explained that in presiding over the joint session of Congress where the election is certified, a vice president “constitutionally serv[es] independently of the United States Senate and House of Representatives” in “ceremonial” and “ministerial” roles. The roles are unique and belong neither to the executive nor to the Congress.

Judge Luttig went on to say that while the legal question is unsettled, there are very “few circumstances in which there would be constitutionally legitimate need, reasons, and justification for [the speech or debate] privileges and protections” to apply to a vice president presiding over the certification. Those circumstances could include protection from questions about why Pence acted as he did and what investigations Pence conducted to play his proper role.

In other words, there might be topics on which the speech or debate clause could protect Pence from being questioned, much as it protects a senator, an aide or even a congressional administrator. But such hypothetical topics are only a distraction, and one which Pence’s PR campaign appears designed to exploit in an effort to mislead the public.

Smith won’t be asking Pence about how he performed his role in presiding over the joint session on Jan. 6, 2021, but about whether or how a third party — Donald Trump, for instance — solicited a lawless act by Pence. This is exactly the point on which Judge Luttig closes: Whatever “the privileges and protections enjoyed by a Vice President …  those privileges and protections would yield to the demands of the criminal process.”

The Supreme Court made that clear in another 1972 case where the court rejected Maryland Sen. Daniel C. Brewster’s claim for legislative immunity from prosecution for taking an alleged bribe. Given that ruling, it cannot possibly be that the speech or debate clause protects Pence from being questioned about an apparent attempt to overthrow the government by the investigation’s target. 

Pence knows that in November, the Supreme Court denied Sen. Lindsey Graham’s speech-and-debate claim that he did not have to testify before a Georgia grand jury. He appeared and answered questions. While courts reiterated that he could refuse to answer and come back to a judge if the prosecutor asked questions intruding upon his legislative prerogative, he never did that, apparently because no such questions were asked.

Mike Pence could do voluntarily what Lindsey Graham was eventually ordered to do — testify, while reserving his rights to object to particular questions. For constitutional purposes, that would be the dog wagging the tail.

Mike Pence is obstructing justice for the man who sent a mob to hang him (how fucked up is that?) because this fool thinks he can win over Trump’s MAGA cult members in his bid for the presidency in 2024 by obstructing Trump’s prosecution. At least that’s the media narrative. What he is really concerned about is his own culpability in the Coup Plotting meetings that preceded January 6. That Mike Pence withdrew from the conspiracy at the very last moment on January 6 does not absolve him from participation in the conspiracy.

When a co-conspirator walks away, he ceases to be liable for the subsequent acts of his conspirators. Nevertheless, “he remains guilty of conspiracy.” The fact remains that the defendant entered the unlawful agreement in the first place, which was itself a crime. Withdrawal separates the former conspirator from what other conspirators may do in the future, but it does not forgive him for what he has done in the past.

Somehow the media never mentions this fact in its effort to confer sainthood on Mike Pence for his withdrawal from the coup d’état plot on January 6. Mike Pence needs to cut an immunity deal with Special Counsel Smith for his testimony against Donald Trump. This sanctimonious prick is trying to avoid testifying at all. Just to be clear, this is obstruction of justice.

Mike Pence will eventually be forced to testify to the criminal grand jury. He could do so voluntarily right now if he were a true patriot. He is not. He will engage in meritless dilatory legal actions to delay testifying for as long as possible. To what end? If he does not cut an immunity deal with Special Counsel Smith, he may assert his Fifth Amendment privilege for his own culpability in the Coup Plotting meetings which preceded January 6.