Former vice president Mike Pence invokes speech clause to avoid testifying in Capitol Riot Probe

(MENAFN) Former Vice President Mike Pence has announced his opposition to testifying in the ongoing investigation by special counsel Jack Smith into the events surrounding the Jan. 6 Capitol riot. Pence was subpoenaed by Smith, who is investigating any involvement by former President Donald Trump in the riot. Pence called the subpoena "unconstitutional," arguing that under the Constitution, "the executive branch cannot summon officials in the legislative branch into a court in any other place."

As vice president, Pence was a member of the executive branch during the Trump administration, but he also held the unique role of president of the Senate and presided over the joint session of Congress that certified the 2020 Electoral College votes. On the basis of the responsibilities related to the election, he is invoking the Constitution's Speech or Debate clause, which protects members of Congress from being questioned about their legislative actions by other branches of the federal government. Pence's legal team plans to argue that he should not have to testify, in part because of the duty he fulfilled on Jan. 6, 2021.

"On the day of January 6, I was acting as president of the Senate, presiding over a joint session described in the Constitution itself. So I believe that that Speech and Debate clause of the Constitution actually prohibits the executive branch from compelling me to appear in a court, as the Constitution says, or in any other place," Pence said this week in Iowa, "We'll stand on that principle and we'll take that case as far as it needs to go, if it needs be to the Supreme Court of the United States."

This argument is likely to result in sealed court hearings and legal briefs filed under seal, as Pence's team and federal prosecutors try to convince a federal judge in Washington, D.C. that their interpretation of the law is the right one.

One prominent conservative legal voice — whose counsel Pence sought after the 2020 election — has cast doubt on Pence's legal strategy. Former federal Judge Michael Luttig, a staunch conservative jurist who personally advised Pence that he did not have the unilateral power to overturn Joe Biden's victory, wrote on Twitter that while the issue raised is an "unsettled question of constitutional law," any privileges a vice president obtains from his or her role in Congress are "few in number and limited in scope."

Luttig, who testified before a House Jan. 6 select committee hearing about his advice to Pence regarding the presidential electors, wrote on Thursday that any immunity Pence would have under the Speech or Debate Clause would not be sufficient to reject the subpoena.

"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 the criminal process," Luttig wrote. The protections Pence plans to invoke, he contended, will likely not apply.

CBS News has reached out to Pence's team for any reaction to Luttig's analysis.

Scott Fredericksen, a former federal prosecutor and independent counsel, says Luttig's skepticism is warranted.

"I don't think it's viable," he said of Pence's claim of privilege. "Is it an open question? Technical yes, because there has never been a ruling from a court, let alone the Supreme court" on the issue.

But he continued, "I think it is highly unlikely that it would be viable, highly unlikely that it would be sustained by a court."

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