Former Vice President Mike Pence has refused to appear before the federal grand jury investigating the events of January 6. Pictured: Pence and President-elect Donald Trump acknowledge the crowd during the first stop of Trump's post-election tour, in Cincinnati on Dec. 1, 2016. (AP Photo/John Minchillo, File)

Mike Pence has refused to appear before the federal grand jury investigating the events of January 6. Will this throw a possible monkey wrench into the wheels of justice? Is there a chance he can get out of testifying? After all, he balked at speaking to the January 6 Commission and prevailed.

There’s a reason that Jack Smith, the special counsel investigating both the attempts to overturn the election and the Mar-a-Lago documents, wants to speak with the former vice president. Pence was an eyewitness to a crime against democracy. Whether or not the former Indiana governor wants to cooperate with Smith’s inquiry, there’s little doubt that he has information about how exactly Donald Trump implored him to stop the certification of the 2020 presidential results. Having been rushed out of the Senate chamber to a secure location, the 63-year-old knows well what the president did or didn’t do to tame the mob.

Pence tries to dismiss the grand jury subpoena as “the Biden D.O.J. subpoena.” While this assertion may appeal to Pence’s electoral base, or what’s left of it, it is undoubtedly doomed in court, where a special counsel will be taken seriously, especially someone with Smith’s cred. He ran the Public Integrity Section at the Department of Justice and is a former prosecutor and was recently at the Hague.

More substantively, Pence, as is well known by now, plans to invoke the Constitution’s “speech or debate” clause, saying his role as president of the Senate should insulate him from all grand jury questions.

It is the same claim Lindsey Graham made in Georgia when he resisted the subpoena from the Fulton County district attorney, who is investigating the efforts of Trump allies, including the senior senator from South Carolina, to influence the state’s electoral count and certification. Graham’s legal maneuver was speedily rejected by the U.S. Supreme Court, even with its conservative supermajority. Pence knows this. Graham appeared and answered questions. The courts said that he could decline to answer specific questions and get a ruling from a judge if prosecutors pried into legislative matters. He never did, ostensibly because the prosecutors only inquired about non-protected matters. And Graham had a better case for grand jury immunity than Pence has. After all, he is a senator.

The “speech or debate” clause specifically shields “Senators and Representatives” from law enforcement scrutiny over their statements and actions related to their legislative responsibilities. It states that lawmakers “shall not be questioned in any other place” about their legislative duties. If we could hold legislators accountable in any place for their votes in Congress, there would be no legislation.

Now, Pence was neither a senator nor a representative on January 6. Nor is the vice president either of those things when he or she breaks a tie vote as president of the Senate. (Vice presidents can’t vote on cloture or veto overrides or treaties, to boot.) His duties on January 6 were ceremonial, independent of any legislative process. There’s no way to conclude that he magically became a senator that day.  As Vice President John Nance Garner famously said, “The vice presidency isn’t worth a bucket of warm spit.” (He may have used a grosser name to refer to another bodily fluid. There’s some debate among historians.)

Even conservative author Andrew McCarthy, writing in the National Review, considers the immunity claim “frivolous.”

But, in a nonsensical column entitled “Mike Pence for the Constitution—Again,” the editorial board of The Wall Street Journal applauded Pence’s refusal to testify, citing two Supreme Court cases that do not settle the question. In 1998, the Court unanimously held that officials outside Congress may be entitled to legislative immunity under certain circumstances, namely when they perform legislative functions.

The second case held that what is protected may be circumscribed. The Court held in 1972 that a legislative aide to Senator Mike Gravel, an Alaska Democrat, was protected from testifying about legislative discussions but no other matters.

Former federal appellate Judge J. Michael Luttig advised Pence to do his constitutional duty on January 6 and not throw the election Trump’s way. He recently tweeted about the subpoena of Pence and tweeted his peace with Pence and followed up with a remarkably crafted op-ed in The New York Times on February 24, which allows that Pence’s immunity claim is an “unsettled question of constitutional law,” but notes that it rests on shaky constitutional ground.  Any privileges a vice president obtains from their role in Congress, Luttig continues, are “few in number and limited in scope,” leaving “few circumstances in which there would be constitutionally legitimate need, reasons, and justification for such privileges and protections.”

Laurence Tribe of Harvard Law School agrees with Luttig that the issue is unsettled and argues that Luttig’s conclusion “leaves no doubt about how it must be settled in the context of Mr. Pence’s unjustified invocation of the Speech or Debate Clause to resist the subpoena he has received from Special Counsel Smith.”

On January 6, Pence had a ceremonial role under the Twelfth Amendment to preside over the joint session of Congress and a ministerial role if the outcome was not determined by the initial count. Neither role has anything to do with a legislative function, and a recently passed statute, the Electoral Count Reform Act of 2022, eliminates any ambiguity mischievous minds may have sought that day.

We can only speculate why Pence asserted such a flimsy claim of privilege. As an undeclared 2024 presidential aspirant, he seeks to distance himself from former President Donald Trump, as do virtually all declared and undeclared candidates—but not too much. Former United Nations Ambassador Nikki Haley did verbal handstands in February when asked how she differs from Trump. If Pence wants to be seen as not overly anti-Trump, then faux resistance to a subpoena makes some sense. But the insurrectionists who tried to hang the former Indiana governor won’t be appeased, and more grounded Trump supporters are unlikely to be swayed by his dangerous high-wire act.

Based on what is already known, before January 6, Trump lawyer John Eastman and others in Trumpville unsuccessfully pressured Pence to overturn the certified vote in the battleground states by simply rejecting the Electoral College votes and sending the matter back to the state legislatures. On January 4, in an Oval Office meeting, Trump and Eastman urged Pence to exercise powers he did not have to overturn the will of the people.

In the wee hours of January 5, Trump tweeted, “If @MikePence comes through for us we will win the Presidency.” According to testimony Trump’s National Security Adviser Keith Kellogg gave to the January 6 Committee, Trump chastised Pence on the morning of the insurrection for not going along with the scheme. All this happened before the joint session of Congress convened at 1:03 pm. So, where’s the privilege covering any of this? There’s no legislative or executive privilege that Pence can stand on. The courts have uniformly rejected similar claims of executive privilege.

If Pence thinks he can run down the clock by litigating the subpoena, Luttig sees little hope for that.

Mr. Pence’s lawyers would be well advised to have Jack Smith’s phone number on speed dial and call him before he calls them. The special counsel will be waiting, though not nearly as long as Mr. Pence’s lawyers may be thinking. No prosecutor, least of all Mr. Smith, will abide this political gambit for long.

On January 6, Pence came down on the side of the Constitution. Now, he invokes the Constitution to hide the truth from a criminal investigation. Tribe calls the switch “Shakespearean.”

There is even more that the grand jury needs to hear from Pence. He and his wife and daughter were at one point less than 100 feet from the mob. He can tell of his time in hiding and how he rejected the urging of his security detail to evacuate the Capitol. He knows what the Secret Service heard about the imminent threat.

He was hunkered down at the seat of government when Trump tweeted at 2:24 pm: “Mike Pence didn’t dare to do what should have been done to protect our Country and our Constitution.” The crowd shouted, “Hang Mike Pence!” as they erected makeshift gallows. Carol Leonnig and Philip Rucker of The Washington Post, in their 2021 book, I Alone Can Fix It: Donald J. Trump’s Catastrophic Final Year, reported that Pence and his aides regarded the Secret Service with some suspicion about whether they might whisk him away against his wishes.

Pence said in an excellent NPR interview with Steve Inskeep, “I was determined to stay at my post. I felt instinctively that by remaining in the Capitol, it might facilitate even a quicker response by federal authorities to come alongside the Capitol Hill police as they fought against the rioters.”

Former House Speaker Nancy Pelosi wondered “if [Pence] could even trust the Secret Service to take him to a safe place,” she said on MSNBC’s “Andrea Mitchell Reports.” “I don’t know,” she continued, “but I do know that he was in danger in the Capitol, and I wanted to be sure that he was protected. He was the vice president of the United States.”

Pence can corroborate or repudiate these reports, and his evidence could be conclusive in piecing together the conspiracy.

It is no answer for The Wall Street Journal editorial board to argue that the “events surrounding Jan. 6” are “by now well known.” Often, matters coming before a grand jury in high-profile cases are “well-known.” This never deters investigators from making their case.

Most importantly, this is a criminal investigation. As Luttig observes: “If there are privileges and protections enjoyed by a Vice President when he or she serves as the President of the Senate during the Joint Session to count the electoral votes, those privileges and protections would yield to the demands of criminal process.”

Time is running out for Washington, D.C., Georgia, and New York prosecutors. “The impulse to thoroughly investigate Trump’s possibly illegal actions and the impulse to complete the investigation as soon as possible, because of presidential election season, are at war with one another,” said Jack Goldsmith, a former assistant attorney general and current Harvard Law School professor. “One impulse will likely have to yield to the other.”

How will all this play out? Here, we deal with probabilities. I agree with Judge Luttig that the “only question now is not whether [Pence] will have to testify before the grand jury, but how soon.” If Smith and the courts act swiftly, as they must, Pence is on a short rope.

James D. Zirin

James D. Zirin is a former federal prosecutor in the Southern District of New York.