Category Archives: Speech or Debate Clause

“Pence to fight special counsel subpoena on Trump’s 2020 election denial”


Mike Pence is preparing to resist a grand jury subpoena for testimony about former President Donald Trump’s push to overturn the 2020 election, according to two people familiar with the former vice president’s thinking.

Pence’s decision to challenge Special Counsel Jack Smith’s request has little to do with executive privilege, the people said. Rather, Pence is set to argue that his former role as president of the Senate — therefore a member of the legislative branch — shields him from certain Justice Department demands.

Pence allies say he is covered by the constitutional provision that protects congressional officials from legal proceedings related to their work — language known as the “speech or debate” clause. The clause, Pence allies say, legally binds federal prosecutors from compelling Pence to testify about the central components of Smith’s investigation. If Pence testifies, they say, it could jeopardize the separation of powers that the Constitution seeks to safeguard.

“He thinks that the ‘speech or debate’ clause is a core protection for Article I, for the legislature,” said one of the two people familiar with Pence’s thinking, who spoke on condition of anonymity to discuss his legal strategy. “He feels it really goes to the heart of some separation of powers issues. He feels duty-bound to maintain that protection, even if it means litigating it.”

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Breaking: Supreme Court Declines to Hear Speech or Debate Case Issue Related to Pa. Gerrymandering Cases

From today’s order list:

17-1368 SCARNETI, JOSEPH B. V. AGRE, LOUIS, ET AL. The appeal is dismissed for want of jurisdiction.

Here were the questions presented in the jurisdictional statement:

1. Did the lower court err in holding that the “speech or debate” privilege is a qualified privilege when considered in connection with civil redistricting litigation, and that state legislators must disclose information regarding the crafting and drafting of redistricting legislation in discovery in such litigation?

2. If the “speech or debate” privilege is qualified when considered in connection with civil redistricting litigation, to what extent should that qualified privilege protect against the questioning of state legislators, and the disclosure of documents possessed by state legislators during discovery in such litigation?

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Would Any Prosecution of Sessions Be Barred by the Speech or Debate Clause?

Putting aside whether perjury could be proven against AG Sessions, there’s another possible hurdle: the Speech or Debate Clause, which gives members of Congress immunity from criminal prosecution for certain legislative acts, for example a speech on the Senate floor.

Would a sitting Senator testifying as an executive nominee get the benefit of the Speech or Debate Clause. Josh Chafetz suggests yes, though I’d like to see more analysis.

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“Menendez asks Supreme Court to hear case”

Josh Gerstein for Politico:

Sen. Bob Menendez is asking the Supreme Court to consider his argument that federal bribery charges he is facing impermissibly intrude into a legislative activity protected by the Constitution’s speech-or-debate clause.

In a petition submitted to the high court this week, attorneys for the New Jersey Democrat argue that a federal appeals court improperly insisted that he needed to prove his motives were “pure” when he took actions that benefited friend, campaign donor and ophthalmologist Salomon Melgen.

Notable that Paul Clement is on the brief, along with Abbe Lowell.

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“Robert Menendez Case Eligible for Appeal”


Senator Robert Menendez of New Jersey may appeal his indictment on corruption charges, based partly on his argument that some of the charges stem from routine legislative work protected by the Constitution.

The United States Court of Appeals for the Third Circuit, in Philadelphia, ruled on Friday that Mr. Menendez, a Democrat, may also appeal over his defense’s argument regarding separation of powers. His lawyers argued it would be up to the Senate, not the courts, to punish any violations over disclosure rules stemming from the allegation that Mr. Menendez did not include flights on a co-defendant’s plane on a Senate financial disclosure report.

Mr. Menendez is charged with accepting campaign donations and gifts in exchange for political influence. He has pleaded not guilty and has said his actions were not specifically to benefit a co-defendant, Dr. Salomon Melgen. Dr. Melgen, a Florida ophthalmologist, has also pleaded not guilty.


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“N.J.’s Menendez says actions that helped friend were legitimate”

Lawyers for U.S. Sen. Robert Menendez argued in U.S. District Court in Newark that his actions on behalf of Dr. Salomon Melgen concerned legitimate policy questions and were not favors for a friend and campaign donor.

In filings submitted late Thursday, Menendez’s lawyers said his actions were protected by the Constitution’s “speech and debate clause,” which prevent lawmakers from being prosecuted for their legislative activities.

“The indictment violates the Speech or Debate Clause by charging that Senator Menendez took various legislative acts and alleging that Senator Menendez received various gifts, and leaving the prosecution to ask the jury to infer that there must have been some sort of corrupt agreement linking the gifts with those acts,” the senator’s lawyers wrote.

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