Why Does Kyle Cheney Insist On Playing One On Twitter?

The VP draws power from both the executive branch and Congress — and Pence’s Jan. 6 role was explicitly on the congressional side of the line, allies say.

That makes a DOJ subpoena off limits under the Constitution’s speech or debate clause.https://t.co/4SzERqHv0g

— Kyle Cheney (@kyledcheney) February 14, 2023

First thing this morning this argument was just annoying. Now I'm starting to wonder who Cheney is carrying water for. "That makes a DOJ subpoena off limits under the Constitution’s speech or debate clause."?  I guess we don't need to bother with the courts, then?  (And honestly, "draws power"?  What is the VP, a light bulb?)

This is NOT the executive privilege argument that was almost universally expected after the news of the Pence subpoena.

And constitutional scholars say it’s a reasonably sound theory that a court will almost certainly have to decide. https://t.co/4SzERqHv0g

— Kyle Cheney (@kyledcheney) February 14, 2023

I almost expect his "constitutional scholars" to be Jonathan Turley and John Eastman. It's, at best, an arguable theory. "Reasonably sound" is a bit of a stretch, and so much depends on the facts at hand. Is Pence trying to argue that conversations with Trump about the January 6th constitutionally and statutorily mandated meeting of the full Congress with the Vice President acting in a purely ministerial capacity involved "legislative duties" of the office of the Vice President (whose only legislative duty is to be a tie-breaker in the Senate when called upon to do so?).  That's not exactly the "hybrid" Cheney sets it up to be.

Despite the VP’s widely accepted role as a top Executive Branch official, the office draws nearly all of its constitutional power from Article I — the president (and tiebreaker) of the Senate.

It’s a true hybrid of legislative/executive power. https://t.co/4SzERqHv0g

— Kyle Cheney (@kyledcheney) February 14, 2023

That's literally the only power the office has. And it wasn't involved in the January 6 proceedings, which is precisely the legal advice Judge Luttig gave him. Pence's role on Jan. 6 was ministerial (i.e., almost ceremonial). His role in breaking ties is, de facto if not de jure, directed by the POTUS (yes, VPOTUS is a seperately elected constitutional office, but what VP is going to tell the President to take a flying leap?).  It doesn't involve any legislative discussion, and even if it did, that wasn't the role Pence undertook on January 6th.

Aside from the fact any privilege recognized under American law can be waived by the actions of the person claiming it.  Pence has written a book including a report on these meetings with Trump, and given interviews about it.  But now he can't tell a grand jury about it under oath?  How does that work?

And if the privilege belongs to the Senate, will they intervene?  Probably not:

Another thing I learned in the course of this reporting: The Senate rarely intervenes in legal matters.

Unlike the House (which is largely controlled by the speaker) the Senate takes legal actions almost always by unanimous consent, a much higher bar.https://t.co/4SzERqHv0g

— Kyle Cheney (@kyledcheney) February 14, 2023

My analysis is no more a "legal analysis" than Cheney's is; but his "analysis" doesn't really make any sense. First, Pence hasn't offered this "privilege" as a defense to the subpoena yet. Change the facts, or the legal argument; change the outcome.  Second: until Pence makes this argument in a legal pleading, we don't know how the DOJ will respond to it.  That response will have a great deal to do with how viable any argument Pence makes, is.

And as proof Cheney is not a lawyer, he cites this pleading by DOJ which, he claims, admits Pence as President of the Senate is covered by the speech/debate clause:

And here's another example of DOJ, in 2019, embracing the notion that vice president enjoys protection from speech or debate clause, when it comes to duties as Senate president. https://t.co/0KiYTOYTcs pic.twitter.com/P9dN503tDo

— Kyle Cheney (@kyledcheney) February 14, 2023

First, the defendants in that case included POTUS, VPOTUS, Sec. of Commerce, and Sen. Grassley, Secretary of the Senate, and Senate Sergeant at Arms. These are the "Senate Defendants" DOJ says are covered by the speech/debate clause.  It's hardly reasonable to read that as including VPOTUS because you think that position is "a true hybrid of legislative/executive power."  Which, truly, it isn't.  The VPOTUS has one vote in the Senate, for one purpose only.  The role has no executive power (which is why it's "worth a pitch of warm shit"), and one very limited, rarely invoked, power in the Senate. Yes, the speech/debate clause has been read to include some Senate employees, and yes, the DOJ includes the VPOTUS as a "Senate defendant" for his constitutional office as President of the Senate.  But the case in question is a suit challenged the legislative function of the Senate.  It did not seek to investigate the private discussions of Senators involving legislation before the Senate.  And there's the Lindsay Graham example:  Graham tried to argue that his phone calls to Georgia election officials was protected by the same Consitutional provision.  The Courts made short work of that because he was not acting within the course and scope of his Senatorial duties on those phone calls, though he tried to argue he was.  Pence may try to argue he was acting within the course and scope of his duties as Senate President when he was talking to Trump.  But he's already revealed those discussions to the public; and he had no course of action on January 6 other than to follow the 12th Amendment and the Electoral Count Act; so he wasn't really engaged in the legislative function of the Senate at all.

I should note, too, that Pence seems to have been joined in that suit because the relief sought was declaratory, asking the court to indirectly direct that Congress make Washington, D.C. the 51st state, and so directing Pence, as tie breaker, to vote, if necessary, to make that result occur.  The case didn't involve discussions, but the exercise of legislative power, which is properly not for the courts to direct.  It's one hell of a stretch to say this DOJ argument means Pence is protected from testifying to a grand jury.  In fact, it's a legal farrago.  Not to say some of the lawyers Trump has employed wouldn't make that argument, but that it would probably fare as well as most of Trump's similar arguments have fared.

This just really isn't the legal conundrum Cheney thinks it is.  And until it is a legal argument presented to a court, with both sides having an opportunity to weigh in, we really have no idea how potent, or impotent, it is.

But I'm weighing in on the side of "impotent."  Because courts aren't really inclined to create new privileges out of whole cloth, and even the Roberts court hasn't shown much interest in expanding the power of the executive in new and Trumpian ways.

And, just saying:

One interesting piece - the DOJ notified Trump’s team about subpoenaing Pence, per people familiar with what took place, apparently in anticipation of a privilege fight

— Maggie Haberman (@maggieNYT) February 14, 2023

That really isn't "interesting," so much as it's good lawyering. The DOJ would have to be packed with damned fools from top to bottom not to anticipate a privilege fight (anticipating counter-arguments is the primary function of lawyers.  It's what makes them so annoying.).  The fight isn't even the question:  it's the quality of the argument that's the question.  If Pence makes a speech/debate clause argument, it will be more novel than an executive privilege claim (which would be dispensed with out of hand); but it won't necessarily be any more winning; or even all that interesting.

And still further to the point:  Cheney argues like non-lawyers do: as if the law were blind and monolithic, and one-size-always-fits-all.  If that were the case, no one would need to go to law school; you could just assemble the statutes and a copy of the Constitution and tally-ho!  But the law is complicated precisely because one-size does not fit all.  Or, as I learned to put it:  change the facts, change the outcome.

Does the Constitution REALLY immunize Pence from complying w/ a special counsel subpoena?

Of course not. Lindsay Graham just tried this in the Trump GA investigation & lost

I'll discuss @CNNnewsroom @ 2pm ET https://t.co/osUkV5TL2w pic.twitter.com/MmG2cP58iG

— Norm Eisen (@NormEisen) February 14, 2023

The Speech or Debate Clause immunizes Senator Graham from testimony only as to his legislative acts. Here, the grand jury subpoena seeks testimony concerning several topics, the majority of which involve non-legislative conduct as defined by this Court’s precedents. There is no constitutional bar to obtaining such testimony, and there is no merit to Senator Graham’s assertion that questioning on such topics would serve only as a pretext to ask otherwise forbidden questions about his motives for legislative acts. With respect to Senator Graham’s calls to state officials, the district court and Eleventh Circuit drew sensible lines to fully protect legislative privilege: Senator Graham cannot be asked about truly legislative conduct (such as gathering information to inform a future vote), but he may be asked precise questions to see if he engaged in the non-legislative conduct described by several participants on those calls (namely, cajoling officials to not count certain ballots or to prospectively modify Georgia’s ballot counting procedures). These lines are firmly supported by precedent, and strike a reasoned balance between the Senator’s immunities and the principle that grand juries may seek “every man’s evidence.” See Trump v. Vance, 140 S. Ct. 2412, 2420 (2020). Senator Graham’s objections to this approach misstate the facts and the law, and do not justify the extraordinary relief he seeks.

That's from the amici curiae brief submitted to the Supreme Court in Graham's privilege case, which he lost. I drop it in only to show the courts are actually quite adept at providing a nuanced protection of privilege without either a blanket denial of same, or a blanket 'Thou shalt not ask" protection.  Pence is not going to evade the grand jury just because he says "But I've got the Vice Presidential seal, and the Vice Presidential podium!" (apologies to Paul Simon).  The courts can, if necessary, easily set limits on what Pence can be asked about, without denying the grand jury access to anything Pence has to say.  And again, since he's already said it in interviews and a book....