Legislative Privilege Under the Speech or Debate Clause

Legislative Privilege Under the Speech or Debate Clause

¶The Speech or Debate Clause provides that "for any Speech or Debate in either House, [Senators and Representatives] shall not be questioned in any other Place." U.S. CONST. art. I, § 6, cl. 1. The Clause affords members of Congress a number of distinct protections, including a testimonial privilege that guarantees that a member "may not be made to answer" questions about his or her legislative acts. Gravel v. United States, 408 U.S. 606, 616 (1972). During the investigation, former Vice President Pence (in his capacity as President of the Senate) invoked his privilege under the Speech or Debate Clause. Through litigation over the scope and applicability of the claimed privilege, the Office obtained important evidence.

¶After the grand jury subpoenaed Mr. Pence to testify about Mr. Trump's alleged efforts to overturn the results of the 2020 election, Mr. Pence moved to quash the subpoena, invoking the

¶Speech or Debate Clause. In re Press Application, No. 23-mc-35, ECF No. 11-1 at 1 (D.D.C. June 9, 2023). Mr. Pence argued that the Vice President should receive the protections of the Speech or Debate Clause when acting in his constitutional capacity as President of the Senate, as he did while presiding over the joint session of Congress on January 6, 2021. Id. at 2. According to Mr. Pence, the Speech or Debate Clause therefore foreclosed questioning before the grand jury about his legislative acts relating to the joint session. Id. at 2-3.

¶The Chief Judge of the United States District Court for the District of Columbia, who presides over grand jury matters in that district, denied "in large part" Mr. Pence's motion to quash. Id., ECF No. 11-5 at 19. The court held "that, while the Clause does apply to the Vice President, it does not cover the vast majority of what the Special Counsel seeks to ask him about." Id. at 1. The court determined that although the Speech or Debate Clause foreclosed questioning about Mr. Pence's legislative acts, much of the conduct the Office sought to question Mr. Pence about did not qualify as legislative acts under the Speech or Debate Clause, including, for example, Mr. Trump's "conversations exhorting Pence to reject electors on January 6th." Id. at 16. The court concluded that the Speech or Debate Clause precluded government questioning in two subject areas: ( 1) Mr. Pence's drafting and recitation of the statement he made on the floor of the Senate on January 6; and (2) internal advice from Mr. Pence's staff about the scope of his authority on January 6. Id. at 18-19. Neither the Office nor Mr. Pence appealed the district court's ruling.²⁵⁹²⁵⁹ The Government also litigated Speech or Debate Clause issues against a Member of Congress. In August 2022, before the Special Counsel was appointed, based on judicial findings of probable cause that evidence of crimes would be found on the personal cell phone of Representative Scott Perry, the Government obtained warrants to seize and search the cell phone of Representative Perry. See In re Sealed Case, 80 F.4th at 360. Because of United States v. Rayburn House Office Bldg., 497 F.3d 654 (D.C. Cir. 2007), a case in which the D.C. Circuit held that the Speech or Debate Clause required the government to allow a Member of Congress to review and assert claims of privilege over materials seized from his office before it could access and review the materials, the Government gave