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 are entitled from immunity from investigators.
Vice Presidents differ from Presidents a little as Presidents draw all their power from the executive branch, whereas vice presidents get their immunity from Congress, Chief U.S. District Court Judge James Boasberg ruled. That’s because vice presidents are constitutionally required to serve as president of the Senate. And officers of Congress, such as 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 largely become 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 have said that the ruling, which remains sealed but was described to POLITICO by a person familiar with its contours, is an important insight into 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 immunity question arose from special counsel Jack Smith’s bid to force Pence to testify before a Washington D.C. grand jury investigating the January 6th, 2021, attack on the Capitol. Trump opposed the subpoena on executive-privilege grounds, a position Boasberg rejected.
Pence did not fight in Trump’s corner, but mounted his own, stating that his role presiding over Congress on January 6th, should grant him speech-or-debate immunity.
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