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

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, Pence resists by arguing that his role as presiding officer of the Senate actually made him part of the legislative branch and therefore is shielded by the Constitution’s “speech or

debate” clause.

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 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.

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

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.