Pence should show courage, testify about Jan. 6

Mike Pence avoided testifying before the select U.S. House committee investigating the Jan. 6 insurrection by claiming 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 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 then-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 it applies only to actual senators and representatives, though the Supreme Court has interpreted it to cover congressional staffers.

Speaking to reporters Wednesday, 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.”

But two years ago, in arguing he couldn’t unilaterally reject electors, 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. Pence, who stumped 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.

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

Pence noted Wednesday 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.