Secret Pence ruling breaks new ground for vice presidency

A federal judge’s secret order on Tuesday requiring Mike Pence to testify about aspects of Donald Trump’s bid to subvert the 2020 election was also an unprecedented ruling about the vice presidency itself.

It is the first time in U.S. history that a federal judge has concluded that vice presidents — like presidents — are entitled to a form of immunity from prying investigators.

But unlike presidents, who draw all their power from the executive branch, vice presidents get their immunity from Congress, Chief U.S. District Court Judge James Boasberg ruled. That’s because vice presidents — while commonly perceived as mere agents of the president — are constitutionally required to serve as president of the Senate. And officers of Congress, like lawmakers and their aides, enjoy immunity rooted in a provision of the Constitution known as the “speech or debate” clause, meant to safeguard Congress from law enforcement inquiries related to their official duties.

The vice president’s role as Senate president has become almost entirely ceremonial, with the occasional exception of casting tie-breaking votes and — every four years — presiding over the count of electoral votes after a presidential election. Vice presidents have long suggested they should enjoy the legal protections afforded to Congress, but Boasberg’s ruling is the first time a court has extended so-called speech-or-debate immunity to the vice presidency.

Experts say the ruling — which remains under seal but was described to POLITICO by a person familiar with its contours — is an important foray into thorny, unresolved questions about vice presidential power.

“Any such movement is significant, as it sets a precedent that potentially can expand at a later time, in a different circumstance,” said Mark Rozell, a George Mason University political scientist who specializes in executive power. “The vice president is now acknowledged to possess a form of privilege by virtue of his or her legislative role, something that a president cannot claim.”

The ruling is the latest example of how Trump’s multi-year stress test on the norms and mechanics of the federal government has forced courts to answer long-dormant questions about the separation of powers.

The immunity question arose from special counsel Jack Smith’s bid to force Pence to testify before a Washington D.C. grand jury investigating the Jan. 6, 2021, attack on the Capitol. Trump opposed the subpoena on executive-privilege grounds, a position Boasberg rejected.

Pence did not join Trump’s fight but mounted his own, claiming that his role presiding over Congress on Jan. 6 should afford him speech-or-debate immunity.

Boasberg, the chief judge of the federal district court in Washington, agreed with Pence, at least to a limited extent: Pence must testify, he ruled, but the speech-or-debate immunity may allow him to avoid answering questions about his legislative role on Jan. 6.

Pence praised the ruling on Wednesday, even as he is considering whether to appeal it for not going far enough.

”For the first time ever, a federal court has recognized that these protections extend to a vice president,” Pence told supporters in Iowa, acknowledging the sealed ruling but saying he was “limited” in how much he could say about it. “I am pleased that the judge recognized the Constitution’s speech and debate protection applies to my work as vice president.”

The drafters of the Constitution included the speech-or-debate clause to guard against executive-branch efforts to coerce lawmakers with the threat of investigation or compelled testimony. But until this week, a court had never decided whether vice presidents — who are not members of the Senate but are officers like the parliamentarian — are covered by the protection.

The Supreme Court has said that immunity under the speech-or-debate clause covers “legislative” activities, such as voting on bills and giving speeches on the floor of Congress. For decades, the courts — particularly in Washington D.C. — have interpreted the clause to cover a broad range of activities connected to those duties, including the actions of congressional aides and officers who help facilitate the work of lawmakers.

The immunity, however, does not extend to purely “political” activities. So while Boasberg’s ruling may allow Pence to avoid testifying about his presiding role on Jan. 6, he might still have to testify about conversations he had with Trump leading up to that day, and he has indicated he is willing to do so.

Before Jan. 6, Trump pressed Pence to use his perch as president of the Senate to refuse to count Joe Biden’s electoral votes, either declaring Trump the victor or sending the election back to the states — an action Pence viewed as unconstitutional and refused to abide. He later returned to the chamber to complete the count of electors, all but sealing the Biden presidency. Trump famously attacked Pence on Twitter amid the chaos at the Capitol, an escalation that Jan. 6 committee investigators cited as a dangerous turning point in the day’s violence.

Two of Pence’s top White House aides — chief of staff Marc Short and counsel Greg Jacob — testified to the grand jury in October after then-Chief District Court Judge Beryl Howell rejected Trump’s similar bid to block their testimony via executive privilege.

Although Boasberg’s precise reasoning remains a mystery because of the secrecy surrounding the grand jury proceedings, legal experts called it a precedent-setting decision that could reshape the understanding of the vice presidency.

“Without seeing the opinion, hard to say much about it beyond the fact that it is clearly in my view correct that the VP enjoys speech-or-debate clause immunity when acting in her capacity as president of the Senate,” said Josh Chafetz, a Georgetown University constitutional law professor. “It's also the case that the courts have consistently taken far too narrow a view, in my judgment, of what activities by members are protected under the clause, so I suspect that Boasberg ruled that Pence has to testify about some stuff that I would think ought to be privileged.”

Stan Brand, who helmed the House counsel’s office for Tip O’Neill and today represents top Trump aide Dan Scavino, said applying the speech-or-debate clause to a vice president for the first time is “a victory for the independence of Congress against an overreaching DOJ.”

The Justice Department has at least three times argued that vice presidents should enjoy speech-or-debate protection for their role presiding over the Senate — including in the context of Jan. 6, 2021, when the department adopted the position to fend off a lawsuit from then-Rep. Louie Gohmert and a separate Utah-based lawsuit filed in 2021.

The precise contours of the department’s position in the secret proceedings with Boasberg were not immediately clear.

The Pence immunity decision underscores the extraordinary volume of precedent-setting rulings that are being issued in secret — the result of the typical confidentiality afforded to the grand jury process in criminal investigations. Howell, whose seven-year term as chief judge expired on March 17, issued dozens of secret rulings in Trump-related matters that may have sweeping implications for the separation of powers.

Brand noted that some of the most significant rulings that have shaped the boundaries of the presidency, vice presidency and Congress have emerged in these sorts of proceedings as a result of national crises — from Watergate to Whitewater to the Vietnam War to Abscam.

“We are in the midst of another such episode,” he said.