Professor Michael McConnell writes to suggest that even if VIce President Pence was performing legislative functions on January 6, the Constitution’s text does not extend the privilege to him.
In response to my post yesterday on the scope of the Speech and Debate Clause privilege, Professor Michael McConnell e-mailed to suggest I was too quick to credit claims that the former Vice President is covered by the clause at all. Like others, I had focused on the question of whether the Vice President’s duties, as related to counting electoral votes, should be considered “legislative” in character and, if so, the extend to which that privilege would yield to criminal process. Whether the privilege extends to the Vice President at all, however, is an antecedent question.
As Professor McConnell notes, the text of the Constitution appears to limit the privilege to “The Senators and Representatives.” Here is the relevant text from Article I, Section 6, clause 1:
The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.
As Professor McConnell points out, the antecedent for the pronoun “they” is “[t]he Senators and Represenatives.” Thus whether the Vice President may invoke the Speech or Debate privelge would seem to be dependent upon whether the Vice President can claim to be a “Senator” or “Representative,” and not merely on whether the Vice President’s relevant conduct is somewhat legislative or whether or not it is purely ceremonial.
This strikes me as a powerful point.
One potential counter-argument might be that becuase Article I, Section 3, Clause 1 makes the Vice President the President of the Senate, this makes him a Senator, at least for some purposes. A problem with this counter-argument, however, is that when the word “Senator” is used throughout the Constitution, it is not used in a way that would include the Vice President. For instance, Article, I, Section 3, clause 1 provides that “The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, for six Years; and each Senator shall have one Vote.” This language would seem to exclude the Vice President as a Senator (or even as a member of the Senate). Note also that while the Vice President may vote in the Senate when the Senate is tied, that is expressly provided for in a separate provision, and is not accomplished by making the Vice President a Senator.
Another counter-argument could be that since the privilege can extend to legislative staff, it should also extend to the Vice President when the Vice President is performing a legislative function. Yet it is difficult to argue that the “[t]he Senators and Representatives” rely upon the Vice President the way that they may rely upon their staff. Thus, this counter-argument extends the privilege beyond the scope of the text, and does so in a way that cannot be justified as necessary to operationalize the privilege for those who are expressly covered (Senators and Represenatives). One could argue that a Senator cannot fully engage in speech or debate without relying upon staff. One could not argue that a Senator’s ability to participate in speech and debate is somehow dependent upon the assistance of the Vice President.
For what it is worth, Professor McConnell also noted that he agrees with me that the Speech or Debate Clause privilege “is not overridden” by criminal investigations, but is skeptical about whether the privilege could be waived.
UPDATE: I should have noted that Josh Blackman made similar arguments about the scope of the Speech or Debate Clause privilege in this post.
UPDATE: See also Michael Ramsey’s take on this question at The Originalism Blog.