The Washington PostDemocracy Dies in Darkness

Opinion Pence should again show the courage he did on Jan. 6 — by testifying

Former vice president Mike Pence greets supporters in Minneapolis on Wednesday. (Abbie Parr/AP)
3 min

Mike Pence avoided testifying before the select House committee investigating the Jan. 6 insurrection by claiming that the legislative branch had “no right” to seek the testimony of a former vice president because of the Constitution’s separation of powers. It would “establish a terrible precedent,” he said in November.

Now that special counsel Jack Smith has subpoenaed him to testify before a grand jury about the same topic, Mr. Pence resists by arguing that his role as presiding officer of the Senate actually made him part of the legislative branch and therefore he is shielded by the Constitution’s “speech or debate" clause.

Mr. Pence performed his constitutional duty on Jan. 6, 2021, when he resisted pressure from President Donald Trump to overturn the 2020 election. Now, he has a duty to tell investigators what he knows about the former president’s machinations to stay in power, which triggered an assault on the U.S. Capitol by Trump supporters. Some of them were chanting: “Hang Mike Pence.”

We withhold judgment on the substantive merits of Mr. Pence’s untested but far-reaching legal theory that, as a former president of the Senate, he’s covered by a provision in Article I of the Constitution, whose original intent was to protect legislators from harassment by the executive. A simple reading of its language suggests that it applies only to actual senators and representatives, though the Supreme Court has interpreted it to cover congressional staffers.

Speaking to reporters on Wednesday, Mr. Pence presented his resistance to complying with the summons as a principled defense of the separation of powers and said he’s willing to appeal all the way to the Supreme Court. “My fight against the DOJ’s subpoena, very simply, is on defending the prerogatives that I had as president of the Senate,” he said. “On Jan. 6, President Trump was wrong. ... It’s also wrong to establish a precedent where a legislative official could be called into court by an executive branch.”

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But two years ago, in arguing that he couldn’t unilaterally reject electors, Mr. Pence said his Senate role was a “largely ceremonial” position, adding: “The role of Congress is much different.”

The political rationale for defying this subpoena is clearer than the legal one. Mr. Pence, who stumped on Wednesday in Iowa and Minnesota ahead of a likely 2024 bid against Mr. Trump for the GOP presidential nomination, might fear that cooperating with prosecutors could permanently alienate Mr. Trump’s supporters.

The political calendar is also why Mr. Smith is trying to wrap up his work quickly. Mr. Pence’s stalling tactics make the special counsel’s job harder. Further slowing down the fact-finding process, Mr. Trump’s lawyers also say they will claim executive privilege in their own bid to quash the subpoena of Mr. Pence. The fight could drag out many months.

Mr. Pence noted Wednesday that he has “spoken and written extensively” about what happened over the past two years. “I have nothing to hide,” he said.

We believe him. That’s what makes his refusal to cooperate with the special counsel’s investigation so disappointing.

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Editorials represent the views of The Post as an institution, as determined through debate among members of the Editorial Board, based in the Opinions section and separate from the newsroom.

Members of the Editorial Board and areas of focus: Opinion Editor David Shipley; Deputy Opinion Editor Karen Tumulty; Associate Opinion Editor Stephen Stromberg (national politics and policy); Lee Hockstader (European affairs, based in Paris); David E. Hoffman (global public health); James Hohmann (domestic policy and electoral politics, including the White House, Congress and governors); Charles Lane (foreign affairs, national security, international economics); Heather Long (economics); Associate Editor Ruth Marcus; Mili Mitra (public policy solutions and audience development); Keith B. Richburg (foreign affairs); and Molly Roberts (technology and society).