Pence got half-win on Jan. 6 testimony; he should not press his luck
Quin Hillyer
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After winning a limited victory in avoiding at least some aspects of testimony about his actions related to the Jan. 6 Capitol riot, Vice President Mike Pence should comply with the ruling rather than appealing.
A federal district judge now has ruled that Pence can avoid testifying to a federal grand jury about his actions on the day of the riot itself but that he is not immune from testifying about his conversations with President Donald Trump in the days leading up to the Capitol incursion.
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In what universally was considered a novel argument, one that even noted conservative analysts said was dubious at best, Pence had argued that the Constitution’s clause providing protections to members of Congress for their “speech or debate” in the Capitol chambers should also apply to him for his role presiding over the counting of presidential electoral votes.
Without rehashing the constitutional arguments, suffice it to say that this is almost certainly the best result for which Pence can reasonably hope. It vindicates his assertion that at least some aspects of a vice president’s role presiding over the Senate make him qualify for “speech or debate” protections. It allows him to set at least some precedent for that principle for which he claims to be fighting. It allows him to avoid testifying about his communications while at the Capitol with senators, House members, White House personnel or, for that matter, his family and his security detail.
And it avoids the quite real chance for an appeals court or the Supreme Court to overturn even his partial victory and make him testify about everything. The odds of the high court ruling against him on that point are at least as high as for the court to overrule the district court judge on the part of the case Pence lost, which is about whether he must testify about the pre-Jan. 6 conversations.
Remember that Pence himself is in no way a target of a federal investigation. He’s just a witness. His testimony is needed for an investigation into Trump’s actions and mindset while Trump was contesting established election results and urging his followers for “wild” protests and a march to the Capitol. Pence himself publicly has said Trump’s “reckless words endangered my family and everyone at the Capitol that day, and I know history will hold Donald Trump accountable.”
Well, part of the way for history to hold Trump accountable, and for the public to hold him accountable, is for federal investigators to have all the facts at their disposal when deciding whether to charge Trump or his aides with any crimes. Pence’s duty to that enterprise is far stronger than his duty to fight for future vice presidents, in exceedingly rare circumstances, to claim to be senators for purposes of “speech or debate” immunity.
Meanwhile, the citizenry’s interest would be better served if Pence doesn’t extend the legal battle that is so publicly contentious and that could have such bearing on the 2024 presidential race. Legal certainty going forward will help expedite the messy process.
Forgive the cliche, but there is plenty of wisdom in the saying that sometimes half a loaf is better than none. For Pence, the half-loaf from the federal district judge should be both tasty and fulfilling.