Former Vice President Mike Pence has said he won’t resist every aspect of the subpoena from the special counsel investigating the events of Jan. 6, 2021. Nonetheless, the dispute isn’t over. Nor is the necessary conversation about the nature of the office Pence held — a conversation with potential lessons for the current VP, Kamala Harris.
Originally, Pence suggested that as presiding officer of the Senate, he was a member of the legislative branch, and thus was shielded by the Constitution’s speech and debate clause from being questioned about the Capitol riot. His stated position is that he’ll resist only inquiries involving his legislative duty of presiding over tabulation of electoral votes.
If the compromise is acceptable to prosecutors, we may not have to test the age-old question of whether the vice president is or is not an officer of the executive branch.
Yet the answer matters — and not only because as long as politics is defined by litigation and investigation, there will be many more subpoenas. A clear answer might be helpful to the present holder of the office.
The US Constitution is vague on whether the vice president is part of the executive or the legislative branch. Apart from overseeing the process of counting electoral votes, the only job the Constitution specifies for the VP is presiding over the Senate and breaking tie votes. Well, that and remaining available in case the presidency should become suddenly vacant.
Pence isn’t the first vice president to claim that the Constitution makes him part of the legislative branch. Dick Cheney made a similar assertion. So did Harry Truman. The chain goes back to Thomas Jefferson, who in a much-quoted 1797 letter used the notion to push back against critics who feared that he would have too much influence on newly elected President John Adams: “I consider my office as constitutionally confined to legislative functions, and that I could not take any part whatever in executive consultations.”
The contemporary scholarly consensus leans toward the view that the vice president is best understood as a member of the executive branch who has some legislative duties. That’s a reasonable position. Yet the argument the other way isn’t absurd.
The role’s history has been complex. In the early 1800s, the vice president’s duties included nominating members of Senate committees. In 1841, when John Tyler became the first VP to succeed a president who died in office, a member of the Senate rose to explain why Tyler no longer presided over sessions of that body: “He was now an executive, not a legislative officer” — implying that until Harrison died, the vice president had been part of the legislature.
This was also the public perception of the day. A 19th-century etiquette tome advises that on formal occasions, the vice president should be seated only as “the constitutional first officer of the legislative branch.” In an era when visiting cards were the polite way to request appointments, cards for the VP were left at the Capitol. And until the 1960s, he had office space only in the Senate building.
So clear was the tradition that in 1903, when the Cincinnati Enquirer editorialized against allowing the vice president to attend cabinet meetings or even advise the president, the newspaper cited a simple ground: “The Vice President, until he is called to the Executive chair, is a part of the legislative establishment. The Constitution distinctly makes him so.”
To be sure, these and many more examples don’t prove that the current scholarly consensus is wrong. Indeed, I think it’s probably right. My only claim is that the debate is worth having.
Which brings us back to Kamala Harris.
Supporters say that Harris’s tumultuous tenure reflects the thankless and even impossible assignments the Biden administration has handed her. Fair enough. But if the VP is a member of the legislature, what’s the basis for the president’s power to give the vice president assignments in the first place? After all, she doesn’t work for him.
There’s an episode of “The West Wing” where President Jed Bartlet wants Vice President John Hoynes to go to Texas to give a speech in favor of gun control. When Hoynes demurs, Bartlet says “Texans don’t like that you have the courage of your convictions?” Hoynes responds: “They’re not my convictions. They’re yours.”
That’s Harris’s dilemma, and the dilemma of every modern VP: the expectation that it’s her job to submit to the will of the commander in chief. But if the Constitution makes the vice president a member of the legislative branch, the expectation is incorrect. She’s free to chart an independent course.
Why does this never happen? Because every occupant of the Oval Office dangles the same big carrot: support for becoming the party’s next presidential nominee.
This is where Pence’s argument for what amounts to a 19th-century conception of the office presents Harris with an opportunity. If she, too, adopts the view that she’s a member of the legislative, not the executive, she might find the freedom to address the issues she actually wants to, in a voice entirely her own.
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Stephen L. Carter is a Bloomberg Opinion columnist. A professor of law at Yale University, he is author, most recently, of “Invisible: The Story of the Black Woman Lawyer Who Took Down America’s Most Powerful Mobster.”
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