Former judge questions Pence’s decision to fight DOJ subpoena in Jan. 6 probe

A former federal judge — who served as an informal adviser to former Vice President Pence — raised doubts about Pence’s reasoning for opposing a subpoena to testify about the Jan. 6, 2021, attack on the Capitol.

J. Michael Luttig argued that any constitutional right Pence had to not testify should yield to the process of a criminal investigation. 

Luttig said in a Twitter thread on Friday that whether Pence has protections from needing to testify in certain proceedings from the Constitution’s “speech and debate” clause is an unsettled question. 

“If a Vice President possesses such privileges and protections with respect to this Joint Session, they are few in number and limited in scope,” he wrote.

Special counsel Jack Smith issued a subpoena to Pence last week as part of his probe into former President Trump’s role in the insurrection. He has vowed to fight against the subpoena — which requests documents and testimony — on the grounds that he should be protected from doing so in the vice president’s capacity as president of the Senate. 

Article I of the Constitution states that members of Congress should not be required to answer questions about “any speech or debate” they give while speaking on the floor during a congressional session. 

Pence is arguing that because the vice president serves as the president of the Senate, he essentially was a member of Congress and should be protected under the speech and debate clause. 

He presided over the joint session of Congress on Jan. 6, 2021, when the electoral votes were counted, and he followed Luttig’s guidance in advance of that day that the vice president did not have the power to reject certain electoral votes, as Trump and his allies asserted he did. 

Luttig said in his post that the vice president’s privileges and protections in their capacity presiding over this joint session are “few in number and limited in scope” if any exist, as few situations exist in which they would be necessary. 

He said this is because the vice president only has a ceremonial role in the counting of the electoral votes. 

Luttig argued that the vice president is serving independently of the House, Senate, president, president-elect and vice president-elect in this role. He explained that this is a different situation than when the vice president can cast a deciding vote if the Senate is tied on a piece of legislation. 

The former judge added that if any protections do exist under the speech and debate clause, they would “yield to the demands of criminal process” just as they do for senators and representatives — and as executive privilege protections do for presidents. 

Luttig testified before the House select committee that investigated the insurrection last year about his advice to Pence about the vice president’s role in counting the electoral votes.

Pence declined to testify before that committee on the grounds that it was partisan-motivated and did not have the authority to investigate.