Mike Pence Will Fight Jack Smith Subpoena–But Not On Executive Privilege Grounds

INSIDE: Fani Willis ... Nikki Haley ... George Santos

(Photo by Erin Scott - Pool/Getty Images)

A lot of things happened. Here are some of the things. This is TPM’s Morning Memo.

Expect A Long Legal Battle

Former Vice President Mike Pence is expected to announce publicly as soon as Wednesday during a pre-campaign stop in Iowa that he will fight a grand jury subpoena arising from Special Counsel Jack Smith’s Jan. 6 investigation, Politico reports.

But rather than contesting the subpoena on executive privilege grounds, Pence is expected to seek refuge in the Constitution’s Speech and Debate Clause, arguing that he was acting in his capacity as president of the Senate, a legislative branch role, according to the Politico report out this morning. The Speech and Debate Clause protects members of Congress from undue intrusion by the executive branch.

• Legal experts tell Politico there’s an arguable basis for Pence’s Speech and Debate Clause defense but that it remains an unsettled area of law, meaning a court fight could drag on for some time.

• The Justice Department itself has previously argued that the vice president in his role as Senate president is covered by the Speech and Debate Clause, but the exact scope and contours of the legislative immunity it offers remain unclear and largely untested.

• Pence’s lawyer is Emmet Flood, who represented then-Vice President Dick Cheney in the Valerie Plame affair. Cheney was of course renowned for exploiting the unique dual-hat role of the vice presidency as an executive and legislative branch official to secure and maximize his power.

Fending off Smith’s subpoena carries obvious political advantages for Pence, who is expected to seek the GOP nomination for president in 2024. It allows Pence to avoid testifying against Donald Trump and sidesteps getting entangled with Trump in raising executive privilege arguments.

Aside from the legal and political vagaries, the move to fight a grand jury subpoena would be another example of the extreme lengths Pence has gone to try to finesse his complicated relationship with Trump and his own personal political ambitions. The not-so-delicate dance has yielded a wandering and inconsistent response to Trump’s efforts to subvert the 2020 election: While Pence was hailed as a hero for not acquiescing to Trump’s demands to throw out the Electoral College count on Jan. 6, there remain suspicions that Pence played along well after Election Day with the efforts to overturn the result. Similarly, while Pence wrote a memoir that did confront Trump and offered some details about their fight over Jan. 6, Pence refused to testify to the Jan. 6 select committee.

Pence’s willingness to write about Jan. 6 in his book also may have had the effect of waiving some of his potential executive privilege defenses to the Smith subpoena: You can’t publicly speak about confidential executive branch deliberations on the one hand, and then refuse to divulge them to a grand jury on the other. It’s not clear that such a waiver would apply in the context of the Speech and Debate Clause, or whether Pence individually can waive a privilege of the legislative branch.

To be clear, I’ve barely skimmed the surface of the constitutional issues potentially at play here. The key takeaway is that Pence has found a viable legal defense that serves his political purposes and that could take Jack Smith quite some time to litigate, while the clock continues to tick toward the 2024 election.

Fani Willis Won’t Appeal Order To Partially Release Grand Jury Report

The Atlanta district attorney mostly won her battle to keep a report from her special grand jury from being released publicly before she has secured indictments, so she will not be appealing the judge’s order Monday to partially release the report. The state judge overseeing the grand jury’s work ordered the introduction, conclusion and a section dealing with suspected perjury by grand jury witnesses to be released this Thursday. But the remaining parts of the report will not be released for now, mainly on due process grounds.

Michigan State Shooting Leaves 3 Dead, 5 Critically Wounded

A 43-year-old man with no known ties to Michigan State University allegedly killed three people and wounded five others on campus before taking his own life Monday night in an all-too-familiar scene.

Biden Cans Comically Corrupt Architect Of The Capitol

Even Republicans couldn’t countenance the ridiculous levels of alleged corruption coming from Trump appointee J. Brett Blanton.

GOP Whines Over Biden Social Security Attacks

It’s a sure sign Biden has hit a soft spot and his attacks are working.

Let’s say it again though for those in the back: Republicans have been targeting Social Security since its inception! As Paul Krugman puts it:

But, of course, many Republicans do want to eviscerate these programs. To believe otherwise requires both willful naïveté and amnesia about 40 years of political history.

2024 Ephemera

Nikki Haley this morning became the first Republican to officially enter the 2024 presidential race against Donal Trump.

Nothing Surprises About George Santos

NYT: George Santos and the Case of the Missing $365,000

Happy Valentine’s Day!

Sure hope you didn’t forget.

---

Thanks for reading today’s Morning Memo. You can find the TPM members’ commenting section here.