On Thursday, the United States Court of Appeals for the DC Circuit heard the argument in a potentially significant speech or debate clause case over whether the Justice Department can obtain access to the contents of Congressman Scott Perry’s cellphone as part of its Jan. 6 investigation. Most of the arguments were public and can be heard here. Judges Katsas and Rao actively probed both sides’ arguments, so for those interested in these matters, this is definitely worth a listen. (Judge Henderson is also on the panel, but asked few questions because she was participating remotely.)
Friday, District Court Judge Beryl Howell has been released a redacted version of its decision rejecting Rep. Perry’s request for a speech or debate clause has been made public. (It was previously under seal.) After performing in camera Reviewing more than 2,000 documents on Representative Perry’s phone, Judge Howell found that most were not covered by the protection of the speech or debate clause. Judge Howell wrote:
What is clear is that the clause does not protect Rep. Perry’s haphazard musings with individuals touting cybersecurity expertise or political discussions with presidential campaign lawyers or with state lawmakers regarding hearings. Before them on possible fraud or local electoral actions they could take to challenge the Pennsylvania election results,
It was unclear how the DC Circuit will weigh Perry’s assertion of privilege. While their questions suggested some unease with the breadth of the Justice Department’s position, which Justice Howell broadly embraced, they also seemed resistant to Rep. Perry’s equally broad assertions pushing the other way and accepting that the privilege may be lifted by communications with persons outside the legislature.
As courts consider Rep. Perry’s claims, debate swirls whether former Vice President Mike Pence can invoke the clause’s protections to refuse to testify before a grand jury about his activities on January 6. Pence wants to assert that he can claim that privilege because the vice president is president of the Senate and has a legislative role in counting electoral votes. (It also turns out that the vice president’s office is paid for as part of the legislature’s budget, not the White House’s.) As noted by Glenn Reynolds (and pointed out in Eugene’s post below), how to characterize the role of the vice president, and how that affects a vice president’s ability to invoke that privilege in particular circumstances, is a legitimately difficult question.
One of the reasons this is the central issue is that speaking or debating clause immunity, when it applies, is generally considered to be “absolute”. The text reads as follows:
They shall in all cases, except treason, felony, and breach of the peace, be privileged from arrest while present at the session of their respective chambers, and to and from the same. ; and for any speech or debate in either House they shall not be questioned in any other place.
Courts have interpreted this language and the disclaimer that members “shall not be questioned” as a ban even on questioning members of Congress about activities related to essential legislative functions. Consequently, the various cases dealing with the consideration and application of this immunity are concerned with whether the activities in question are covered, and not with the weight of the interest which would justify the disclosure.
For this reason, I believe that some of Judge Michael Luttig’s assertions about whether Pence can claim immunity from the speech or debate clause are false. In a recent Twitter feedfor example, Luttig wrote:
If there are any privileges and protections enjoyed by a Vice President when serving as President of the Senate during the joint session to count electoral votes, those privileges and protections would yield to the requirements of criminal procedure as—if not more sooner than – do the privileges and protections of the Speech or Debate Clause for Senators and Representatives, and Executive Privilege for Presidents of the United States.
In his most recent NYT editorial, “Mike Pence’s Dangerous Bet” (which Josh Blackman discussed here), Luttig also writes:
Even if a vice president has speech or debate clause protections, he will yield to a federal subpoena to appear before the grand jury.
I do not believe that these statements are correct. Whether the vice president is covered by the speech or debate clause when participating in the counting of electoral votes, he will not “bow to the demands of criminal procedure”. The privilege includes a testimonial privilege (“will not be challenged”), and is generally understood to be absolute, if applicable. (Again, the key question is whether it applies, not whether it can yield.) Moreover, it is also not true that executive privilege “necessarily yields to the demands criminal procedure”. As United States vs. Nixon makes it clear that it depends, in part, on the reasons for which executive privilege is asserted, as those reasons must be weighed against the needs of the criminal process.
While I accept that the vice president is, for some purposes, part of the legislative branch, I am skeptical that his largely ceremonial role in the voter count law is covered by the speech or debate clause. I further wonder if any such privilege that Pence might claim has been lifted because some of his aides have already testified on these matters. But if Pence can’t claim privilege here, it’s not because the Justice Department is conducting a criminal investigation, but rather because the particular information the Justice Department is looking for isn’t what the privilege covers. really.