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, Mr. Pence resists by arguing that his role as presiding officer of the Senate actually made him part of the legislative branch and therefore he is shielded by the Constitution’s “speech or debate" clause.
Mr. 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 Mr. 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.
Speaking to reporters on Wednesday, Mr. 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.”
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End of carouselAlso on the Editorial Board’s agenda
- The United States should keep the pressure on Nicaragua.
- America’s fight against inflation isn’t over.
- The Taliban has doubled down on the repression of women.
- The world’s ice is melting quickly.
- Turkey’s autocratic president, Recep Tayyip Erdogan, is at it again.
- Hong Kong’s crackdown on free speech continues.
Some 222 Nicaraguan political prisoners left that Central American country for the United States in February. President Daniel Ortega released and sent them into exile in a single motion. Nevertheless, it appears that Mr. Ortega let them go under pressure from economic sanctions the United States imposed on his regime when he launched a wave of repression in 2018. The Biden administration should keep the pressure on. Read recent editorials about the situation in Nicaragua.
Inflation remains stubbornly high at 6.4 percent in January. The Federal Reserve’s job is not done in this fight. More interest rate hikes are needed. Read a recent editorial about inflation and the Fed.
Afghanistan’s rulers had promised that barring women from universities was only temporary. But private universities got a letter on Jan. 28 warning them that women are prohibited from taking university entrance examinations. Afghanistan has 140 private universities across 24 provinces, with around 200,000 students. Out of those, some 60,000 to 70,000 are women, the AP reports. Read a recent editorial on women’s rights in Afghanistan.
A new study finds that half the world’s mountain glaciers and ice caps will melt even if global warming is restrained to 1.5 degrees Celsius — which it won’t be. This would feed sea-level rise and imperil water sources for hundreds of millions. Read a recent editorial on how to cope with rising seas, and another on the policies needed to fight climate change.
A court in mid-December sentenced Istanbul’s popular mayor, Ekrem Imamoglu, a political rival of the president, to more than two years in prison on the charge of “insulting public figures.” If confirmed on appeal, his conviction would bar Mr. Imamoglu from seeking public office. Mr. Erdogan has a long history of suppressing critics and competition. Read our recent editorial.
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But two years ago, in arguing that he couldn’t unilaterally reject electors, Mr. 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. Mr. Pence, who stumped on Wednesday in Iowa and Minnesota ahead of a likely 2024 bid against Mr. Trump for the GOP presidential nomination, might fear that cooperating with prosecutors could permanently alienate Mr. Trump’s supporters.
The political calendar is also why Mr. Smith is trying to wrap up his work quickly. Mr. Pence’s stalling tactics make the special counsel’s job harder. Further slowing down the fact-finding process, Mr. Trump’s lawyers also say they will claim executive privilege in their own bid to quash the subpoena of Mr. Pence. The fight could drag out many months.
Mr. 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.