More on Mike Pence and the Speech or Debate Clause

In case you missed it, I have a piece on Lawfare with further analysis of former Vice President Pence’s Speech or Debate argument.  To bottom line it: (1) I think it is very unlikely that Pence will be able to get the subpoena quashed in its entirety; (2) Pence has a reasonable chance of succeeding on the threshold question of whether he is protected by the Speech or Debate Clause at all: (3) if so, there are likely areas where a court would hold he is protected from questioning (e.g., his communications internal to Congress related to the performance of his role as president of the Senate); (4) for the most important communications at issue (namely Pence’s communications with former President Trump and others outside Congress who were attempting to influence how he would exercise his role during the Jan. 6 electoral vote count), the Speech or Debate question is a close one that could go either way; and (5) in any event, the Senate has the power here to waive Pence’s Speech or Debate privilege and/or demand that he testify before the Senate regarding these matters.

And if you want to hear even more about this subject (and given that you are the sort of person who reads Point of Order, I assume you do), you can listen to me and Eric Columbus on the Lawfare podcast with hosts Quinta Jurecic and Molly Reynolds.

What is a Vice President?

This is not in fact the title of a Valentine’s Day poem for Kamala Harris, but of some preliminary thoughts in response to a Politico article revealing that former Vice President Mike Pence intends to resist a grand jury subpoena from Special Counsel Jack Smith on grounds that it violates the Speech or Debate Clause.

That raises a boatload of novel constitutional questions, but the most basic is just what exactly, constitutionally speaking, is the vice presidency? One “expert” answered the question this way in 2008 (hat tip: Derek Muller):

Vice President Cheney has been the most dangerous vice president we’ve had probably in American history. He has the idea — he doesn’t realize that Article I of the Constitution defines the role of the vice president of the United States. That’s the executive — he works in the executive branch. He should understand that. Everyone should understand that.

And the primary role of the vice president of the United States of America is to support the president of the United States of America, give that president his or her best judgment when sought, and as vice president, to preside over the Senate only in a time when in fact there’s a tie vote. The Constitution is explicit. The only authority the vice president has from the legislative standpoint is the vote, only when there is a tie vote. He has no authority relative to the Congress.

The idea he’s part of the legislative branch is a bizarre notion invented by Cheney to aggrandize the power of a unitary executive, and look where it’s gotten us. It has been very dangerous.

Actually, Article I, which of course deals with the legislative branch, says nothing about the vice president working in the executive branch. And Article II, which is probably what then-Senator Biden meant to reference, does not say anything about the vice president supporting, reporting to, or advising the president. In fact, as the Office of Legal Counsel has explained, “[t]he Constitution allots specific functions to the Vice President in the transaction of business by the Legislative Branch (art. I, §3) but neither grants nor forbids him functions in the conduct of affairs of the Executive Branch.” Participation of the Vice President in the Affairs of the Executive Branch, I Op. O.L.C. Supp. 214 (1961).

Biden’s claims about the vice presidency, made during the 2008 presidential election, related to then-Vice President Dick Cheney’s contention that the vice president was not part of the executive branch for purposes of an executive order granting the National Archives oversight authority over certain national security information in the executive branch. While this position elicited widespread outrage and mockery, Cheney’s view was not without some legal and historical substance. See, e.g, James D. Myers, Bringing the Vice President into the Fold: Executive Immunity and the Vice Presidency, 50 Boston Coll. L. Rev. 897, 901 (2009) (“Cheney’s claims reflect the reality that the constitutional and political status of the Vice President is still somewhat amorphous.”); Glenn Harlan Reynolds, Is Dick Cheney Unconstitutional?, 102 Nw. U. L. Rev. 1539, 1540 (2008) (“Despite the unfriendly political response, the argument that the Vice President is a legislative official is not inherently absurd.”). Furthermore, though Cheney’s argument may have been inconsistent with his assertions on other occasions of executive privilege for the office of vice president, it may have been the latter that should have given way. Reynolds, 102 Nw. U. L. Rev. at 1540 (“[T]he positioning of the vice presidency within the legislative branch—or, at any rate, outside the executive—may be appropriate. Such a reading, however, would render Cheney’s role within the Bush Administration, as well as the modern notion of Vice Presidents as junior versions of the commander-in-chief, unconstitutional.”).

A few years ago Roy Brownell, a lawyer in Washington, D.C., wrote an article arguing (persuasively imho) that while the vice president is popularly considered a subordinate of the president, and often (though not always) acts as such, “as a constitutional matter, the Vice President is independent from the President and can and does take actions and public positions that are contrary to the latter’s wishes.” Roy E. Brownell II, The Independence of the Vice Presidency, 17 Leg. & Pub. Pol’y 297, 300-01 (2014). The vice president’s independence is founded, first and foremost, on the fact that she cannot be removed by the president. Id. at 303. Moreover, contrary to Biden’s suggestion, the Opinion Clause, which authorizes the president to require the opinion in writing of the principal officer in each of the executive departments, does not apply to the vice president. Id. at 314-16. Thus, while the president can ask the vice president for her advice or opinion, he has no constitutional authority to require her to provide it.

In addition, the Twenty-Fifth Amendment, while it to some degree reflects modern assumptions about the vice president’s role in the executive branch, further cements the vice president’s autonomy from the president. Indeed, by giving the vice president the primary responsibility to determine when the president is unable to discharge the powers and duties of his office, even contrary to the president’s wishes, section four of that amendment “underscores the Vice President’s independence” and the fact that the president has no power to remove her from office. Id. at 308-10.

Finally, and most relevantly to the issue at hand, the vice president serves as the president of the Senate, where she has a number of functions, including recognizing senators on the floor, making rulings from the chair, and breaking tie votes. Id. at 316-17. Other functions including presiding at impeachment trials and, of course, presiding over the counting and certification of electoral votes. All of these functions are legislative in nature and are exercised by the vice president independently of the president. Id. at 316-17 & nn. 93 & 97. As Brownell observes presciently: “To permit the President, as a constitutional matter, to order the Vice President to preside a certain way or to vote a certain way would undercut the freedom of the Senate to carry out its own constitutional functions.” Id. at 317.

 None of this proves that the vice president is necessarily covered by the Speech or Debate Clause, much less that the specific questions that the grand jury wishes to ask of the former vice president would violate that clause. It does, however, suggest that Pence’s legal argument is not implausible on its face. See Myers, 50 Boston College L. Rev. at 936-37 & n. 307 (suggesting the possibility of limited legislative immunity for the vice president). Furthermore, Pence’s decision to invoke legislative privilege, rather than executive privilege, is interesting in its own right. It underscores that on the matters at issue Pence was fulfilling his own independent constitutional duties, not exercising executive branch functions delegated to him by the president. As a politically loyal vice president, Pence listened to what former President Trump and his minions had to say, but as a constitutionally independent officeholder, he made his own decisions based on the Constitution and the oath he took to defend it. This framing of the matter may have both political and legal ramifications in the months to come.

Could Biden Vote Under the 12th Amendment?

In a previous post, we briefly discussed the question of whether the Vice-President could vote in the Senate in the event of an electoral college tie followed by a tie vote in the Senate to elect his successor under the 12th Amendment. Over at Balkinization, Professor Gerard Magliocca asks the same question.

My view, which I sketched out more in comments to Magliocca’s post, is that the 12th amendment does not permit the Vice-President to vote for three reasons. First, as a textual matter, the VP’s vote wouldn’t give the winner a “majority of the whole number.” The 12th amendment says that, if no one receives an electoral college majority for Vice-President, “the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice.”  The Vice-President is not a Senator and therefore not part of the “whole number;” thus, his vote would seem irrelevant to obtaining the necessary majority.

Second, to the extent that the 12th amendment is ambiguous on this point, there are strong reasons not to interpret it as authorizing the VP to vote.  At the time the 12th amendment was adopted, it was not yet established that the VP could vote on matters beyond ordinary legislation. Moreover, it seems unlikely that the framers of the 12th amendment would have intended the VP to vote in an election in which he would so often be an interested party (just as members, at least in the House, are not supposed to vote on matters relating to their own seats). Thus, the 12th amendment’s silence should not be taken as an implicit authorization for the VP to vote.

Third, Article I prohibits the Vice-President from voting unless the Senate is “equally divided.” Thus, if one Senator did not vote, resulting in a 50-49 vote, the VP could not vote, yet there would not be the necessary majority to make a choice.

I think these arguments are pretty strong. (This blog, although written by a non-lawyer, makes a similar case). It does not seem Professors Magliocca or Sandy Levinson are persuaded, but Professor Michael Ramsey is.

If others in the law professoriate weigh in, let me know in the comments.

Breaking a Tie in the Senate

(Update- see this more recent post on the possibility of a court challenge to the Lieutenant Governor’s vote).

It appears the Virginia Senate, following Tuesday’s elections, will be equally divided, with Republicans holding 20 seats and Democrats holding 20 seats. The Democrats want a shared-power arrangement, meaning that committee chairmanships and other responsibilities would be divided equally between the two parties. This is apparently what was done on the one previous occasion, in the 1990s, where such a situation arose. Republicans, on the other hand, contend that they are entitled to control the chamber because the Republican Lieutenant Governor has the power to break ties.

One Democratic Senator, “Chap” Petersen, told the Washington Post that “the lieutenant governor is not a member of the Senate” and that, if Republicans seized power, Democrats could sue to stop it. Senator Petersen seems to be saying that the Lieutenant Governor lacks the constitutional power to break ties with regard to internal matters such as committee assignments and other rules.

The Virginia Constitution provides that “[t]he Lieutenant Governor shall be President of the Senate but shall have no vote except in case of an equal division.” This provision was apparently (my research on this is admittedly cursory) added as part of the Constitution of 1869. It closely parallels Article I, Section 3, clause 4 of the U.S. Constitution, which provides that “[t]he Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided.”

Because of the similarity of the constitutional provisions, it is worth taking a look at how the U.S. Senate has dealt with similar issues.

On several occasions during the 19th Century, questions were raised as to whether the Vice President’s right to break ties extended beyond legislative matters. For example, in 1850 Vice President Millard Fillmore inquired of the Senate whether “he might vote in a case where there was a tie in the election of an officer of the Senate.” Senator (and former Vice President) John Calhoun responded that he had voted several times on executive nominations during his tenure as Vice President. “The opinion of the Senate seeming to be in favor of the power of the Vice-President to vote in the case before them, Mr. Fillmore cast his vote for one of the candidates.” Hinds Precedents § 5972.

In 1877 the issue arose again when the Senate was considering a question of whether to seat a Senator. The vote being equally divided, Vice President William Wheeler voted in the negative. Senator Thurman initially challenged the Vice President’s right to vote on the question, but, after a debate in which the Fillmore precedent was discussed, Thurman withdrew his challenge and Wheeler ruled that there was “no doubt of his right to vote in all cases in which the Senate is equally divided.” Id. § 5977.

Finally, in 1881 Vice President Chester Arthur cast the tie-breaking vote with regard to organizing the Senate at a time when the parties had equal voting strength. Although Senator Saulsbury expressed the opinion that the Vice President was not empowered to vote on such a question, the earlier precedent was again cited, and the Vice President proceeded to break the tie. Id. § 5975.

In the U.S. Senate, therefore, the precedent seems well-established that the Vice President’s tie-breaking vote extends to non-legislative votes, including matters relating to control and organization of the chamber.