Secret Pence ruling breaks new ground for vice presidency

A federal judge’s secret order on Tuesday requiring Mike Pence to testify about aspects of Donald Trump’s bid to subvert the 2020 election was also an unprecedented ruling about the vice presidency itself.

It is the first time in U.S. history that a federal judge has concluded that vice presidents — like presidents — are entitled to a form of immunity from prying investigators.

But unlike presidents, who draw all their power from the executive branch, vice presidents get their immunity from Congress, Chief U.S. District Court Judge James Boasberg ruled. That’s because vice presidents — while commonly perceived as mere agents of the president — are constitutionally required to serve as president of the Senate. And officers of Congress, like lawmakers and their aides, enjoy immunity rooted in a provision of the Constitution known as the “speech or debate” clause, meant to safeguard Congress from law enforcement inquiries related to their official duties.

The vice president’s role as Senate president has become almost entirely ceremonial, with the occasional exception of casting tie-breaking votes and — every four years — presiding over the count of electoral votes after a presidential election. Vice presidents have long suggested they should enjoy the legal protections afforded to Congress, but Boasberg’s ruling is the first time a court has extended so-called speech-or-debate immunity to the vice presidency.

Experts say the ruling — which remains under seal but was described to POLITICO by a person familiar with its contours — is an important foray into thorny, unresolved questions about vice presidential power.

“Any such movement is significant, as it sets a precedent that potentially can expand at a later time, in a different circumstance,” said Mark Rozell, a George Mason University political scientist who specializes in executive power. “The vice president is now acknowledged to possess a form of privilege by virtue of his or her legislative role, something that a president cannot claim.”

The ruling is the latest example of how Trump’s multi-year stress test on the norms and mechanics of the federal government has forced courts to answer long-dormant questions about the separation of powers.

The immunity question arose from special counsel Jack Smith’s bid to force Pence to testify before a Washington D.C. grand jury investigating the Jan. 6, 2021, attack on the Capitol. Trump opposed the subpoena on executive-privilege grounds, a position Boasberg rejected.

Pence did not join Trump’s fight but mounted his own, claiming that his role presiding over Congress on Jan. 6 should afford him speech-or-debate immunity.

Boasberg, the chief judge of the federal district court in Washington, agreed with Pence, at least to a limited extent: Pence must testify, he ruled, but the speech-or-debate immunity may allow him to avoid answering questions about his legislative role on Jan. 6.

Pence praised the ruling on Wednesday, even as he is considering whether to appeal it for not going far enough.

”For the first time ever, a federal court has recognized that these protections extend to a vice president,” Pence told supporters in Iowa, acknowledging the sealed ruling but saying he was “limited” in how much he could say about it. “I am pleased that the judge recognized the Constitution’s speech and debate protection applies to my work as vice president.”