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Mike Pence Does Not Have Legislative Immunity [Updated]
Michael Ramsey

Some commentators (such as Eric Segall) say originalism can't resolve modern contested issues.  I say it resolves this one:

The House Committee investigating the January 6, 2021, events issued a subpoena to former Vice President Mike Pence relating to his actions then (when he was Vice President).  Pence is resisting the subpoena under the Constitution's speech or debate clause, which gives immunity for certain legislative actions.  Glenn Reynolds, Jonathan Adler, and Josh Blackman have thoughts (as does Mike Luttig, behind the New York Times paywall, but his thoughts are discussed by the others).

The speech or debate clause (Art. I, Sec. 6) provides:

The Senators and Representatives ... 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 for any Speech or Debate in either House, they shall not be questioned in any other Place.

On its face, this clause applies only to Senators or Representatives.  Pence is not a Senator or Representative. I'm not aware of any founding-era sources suggesting that legislative immunity extended to anyone other than Senators and Representatives, and particularly not anything suggesting it extended to the Vice President.

I agree with Professor Reynolds (making the case on his interesting new substack that Pence has a plausible claim) that (a) the Vice President serves some legislative functions, and (b) the Supreme Court has sometimes adopted a functional approach to the speech or debate clause, as in Gravel v. United States (1972), when the Court extended the immunity to a legislative aide.  But in an originalist analysis neither of these points matter.  The text provides immunity specifically to Senators and Representatives, not generally to people exercising legislative functions.  The framers could have written that "no one carrying out a legislative function in either House shall be questioned..." or "neither Senators, Representatives nor the Vice President shall be questioned ..."   They didn't.  As to the Court's functional analysis, that's how we lost our way in the first place.  Yes, the limitation to Senators and Representatives is formalistic, but as Justice Scalia wrote (in A Matter of Interpretation): "of course it's formalistic! The rule of law is about form.  ... It is what makes a government a government of laws and not of men."

Some may say that my analysis is really textualism, not originalism.  There's something to this point, but not much.  The touchstone of most modern originalism, going back to Justice Scalia, is the original meaning of the text.  If the text is clear and uses language accessible to modern ears, that is the end of the matter, at least when enactment-era context doesn't supply a strong reason to think otherwise.  Here there's no enactment-era context raising doubts about the evident meaning of the text, so the text's natural meaning controls.  That's how text-based originalism works.

To nonoriginalism, in contrast, the text is just one piece of evidence.  Other considerations come into play as well, including perhaps more abstract constitutional values and practicalities such as the need to protect people serving legislative functions.  That's why Professor Reynolds is right that under modern approaches Pence's argument is at least somewhat plausible.  But as a matter of original meaning, it isn't.

UPDATE:  From a further post by Jonathan Adler at Volokh Conspiracy, Michael McConnell has a similar view to mine as to Pence's (non)immunity, and Professor Adler seems to be coming around to it as well.