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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End of carousel- D.C. Council reverses itself on school resource officers. Good.
- Virginia makes a mistake by pulling out of an election fraud detection group.
- Vietnam sentences another democracy activist.
- Biden has a new border plan.
The D.C. Council voted on Tuesday to stop pulling police officers out of schools, a big win for student safety. Parents and principals overwhelmingly support keeping school resource officers around because they help de-escalate violent situations. D.C. joins a growing number of jurisdictions, from Montgomery County, Md., to Denver, in reversing course after withdrawing officers from school grounds following George Floyd’s murder. Read our recent editorial on why D.C. needs SROs.
Gov. Glenn Youngkin (R) just withdrew Virginia from a data-sharing consortium, ERIC, that made the commonwealth’s elections more secure, following Republicans in seven other states in falling prey to disinformation peddled by election deniers. Former GOP governor Robert F. McDonnell made Virginia a founding member of ERIC in 2012, and until recently conservatives touted the group as a tool to combat voter fraud. D.C. and Maryland plan to remain. Read our recent editorial on ERIC.
In Vietnam, a one-party state, democracy activist Tran Van Bang was sentenced on Friday to eight years in prison and three years probation for writing 39 Facebook posts. The court claimed he had defamed the state in his writings, according to Radio Free Asia. In the past six years, at least 60 bloggers and activists have been sentenced to between 4 and 15 years in prison under the law, Human Rights Watch found. Read more of the Editorial Board’s coverage on autocracy and Vietnam.
The Department of Homeland Security has provided details of a plan to prevent a migrant surge along the southern border. The administration would presumptively deny asylum to migrants who failed to seek it in a third country en route — unless they face “an extreme and imminent threat” of rape, kidnapping, torture or murder. Critics allege that this is akin to an illegal Trump-era policy. In fact, President Biden is acting lawfully in response to what was fast becoming an unmanageable flow at the border. Read our most recent editorial on the U.S. asylum system.
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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.