Mike Pence's absurd argument.

February 27, 2023

          On a seemingly slow news weekend, I want to comment on three important stories that have been in the news for a week or more. All three stories relate to the investigations of the insurrection and the coup attempt. I also address what you can do to help the critically important race for a seat on the Wisconsin Supreme Court by Janet Protasiewicz. Finally, I invite you to celebrate the 101st birthday of a genuine American hero. Read on!

Privileges and immunities vs. protecting the US against insurrection and coup attempts.

          The attempted insurrection and coup on January 6 have served as a stress test for the application of various privileges and immunities set forth in the US Constitution and recognized by common law. Two competing sets of interests have emerged:

• The first interest is the need to investigate and prosecute the insurrection and coup.

• The second interest is the need to protect (i) the executive privilege of the president, (ii) the immunity granted to legislators in the “speech and debate” clause of the Constitution, and (iii) the legal privilege that protects communications between attorneys and their clients.

          When our government is operating lawfully to achieve legitimate goals, the above privileges and immunities appropriately protect and advance the interests of democracy. But when members of the executive and legislative branches seek to overthrow the government, those privileges and immunities can be misused as shields to conceal treason.

          It should be self-evident that the framers of a founding charter would not create testimonial privileges to protect elected officials and legislators who seek to overthrow the nation’s founding charter. When there is a claim that an officer or legislator attempted to overthrow the government, the testimonial privileges and immunities should yield to the efforts to preserve and defend the government.

          To argue otherwise is to turn the Constitution on its head. Protecting constitutional privileges at the expense of efforts to preserve and defend the Constitution that grants those privileges is nonsensical. If a government cannot ensure its ongoing existence against insurrection because of testimonial privileges meant to facilitate the lawful operations of the government, the Framers of the Constitution sowed the seeds of the union’s demise. Surely, the Framers did not apprehend or intend such an absurd result.

          But that is exactly the argument being made by former V.P. Mike Pence and Rep. Scott Perry. Both argue that testimonial privileges granted by the Constitution shield them from grand jury subpoenas in the investigation of the January 6^th insurrection. In this instance, both Pence and Perry invoke the speech and debate clause as a shield against testimony. Other Trump officials invoke executive privilege or the attorney-client privilege to evade testimony.

          As explained above, their arguments are nonsensical. They claim they are “protecting” those privileges for future executives and legislators. Hogwash! They are protecting themselves from criminal exposure or their political careers against backlash from Trump loyalists.

          Pence’s claim that he is protecting the “speech and debate” clause for future vice presidents is baseless. That clause is designed to protect members of Congress from being examined about their legislative efforts. Former federal appellate judge J. Michael Luttig penned an op-ed in the NYTimes that harshly criticizes Pence’s invocation of the speech and debate clause. See J. Michael Luttig, NYTimes, Mike Pence’s Dangerous Ploy.

          Pence consulted retired Judge Luttig when Pence was being pressured by Trump to refuse to count electoral votes from states that Biden won. To his everlasting credit, Pence followed Judge Luttig’s advice and counted the ballots in states challenged by fake electoral slates.

          Luttig is now advising Pence to comply with the grand jury subpoena. Luttig writes:

Any protections the former vice president is entitled to under the “speech and debate” clause will be few in number and limited in scope.

Even if a vice president has speech or debate clause protections, they will yield to a federal subpoena to appear before the grand jury. This is especially true where, as here, a vice president seeks to protect his conversations with a president who himself is under federal criminal investigation for obstructing the very official proceedings in which the special counsel is interested.

What [special counsel Jack Smith] wants to know about are Mr. Pence’s communications and interactions with Mr. Trump before, and perhaps during, the vote count, which are entirely fair game for a grand jury investigating possible crimes against the United States.

          Judge Luttig concludes by saying that Pence’s lawyers should have Jack Smith’s telephone number on speed dial so they can schedule a deposition when Pence’s claims are rejected by the courts.

          GOP Rep. Scott Perry was at the center of the fake elector’s plot and the attempted hostile takeover of the DOJ by installing Jeffrey Clark as the Acting Attorney General. Perry is attempting to prevent the FBI from reviewing text messages and emails on his phone during the period surrounding January 6^th. Like Pence, Perry relies on the speech and debate clause.

          Federal district court Judge Beryl Howell rejected Perry’s arguments in an opinion that was released on Friday of last week. [Judge Howell’s opinion and order were issued months ago but remained under seal as Perry appeals the order.] The remarkable opinion is here: In re Cell Phone of Rep. Scott Perry.

          Judge Howell writes, in part:

This astonishing view of the scope of the legislative privilege would truly cloak Members of Congress with a powerful dual non-disclosure and immunity shield for virtually any of their activities . . . . A Member could delay, if not effectively bar, investigative scrutiny and avoid not only criminal or civil liability but also the public reputational harm that such scrutiny could engender, particularly in the view of voters.

The Supreme Court has made clear that the Clause is no “get out of jail free” card. . . .  “The privilege is not designed to protect the reputations of congressmen but rather the functioning of Congress.” [Citations omitted.]

          Sadly, the D.C. Circuit Court of Appeal stayed Judge Howell’s order compelling Perry to turn over his communications to the DOJ. At a hearing last week, a three-judge panel of the D.C. Circuit seemed skeptical of Judge Howell’s ruling. See Politico, Judge rejected Perry’s bid to shield thousands of emails from Jan. 6 investigators.

          The objections by Pence and Perry do violence to the speech and debate clause and should be rejected by the Supreme Court. It remains to be seen whether the Court will rouse itself to protect the Constitution against insurrectionists and coup plotters or will instead protect testimonial privileges in a manner that could imperil the founding charter that created those privileges in the first instance. The latter is an absurd result that—if adopted—would be a partisan ruling designed to protect Trump.

Fulton County Judge says jurors are free to speak about final report and witness testimony.

          The forewoman of the Fulton County special ground jury has received criticism both for her disclosures and for her presentation style. On the former, the judge to whom the final report was delivered said on Friday that he told the jurors they could discuss their final report and witness testimony with the media, but should not discuss their “deliberations.” See CNN Politics, Fulton County judge who oversaw special grand jury in Trump probe says jurors are free to discuss final report.  Judge Robert McBurney told CNN,

The contents of the report are not deliberations. . . . What witnesses said, what you put in your report, those are not off-limits.

          McBurney went even further to say that if a prosecutor or witness was present (or testifying), those “are not deliberations” and are “fair game for special grand jurors to discuss publicly.”

          Based on McBurney’s comments to CNN, the forewoman could have described the specific recommendations for indictments and what testimony was given by which witnesses. That she did not demonstrated restraint and judgment.

          As to criticisms of her manner, those are unfair. Our system randomly selects adult citizens regardless of age, experience, education, or public relations skills, and then asks them to perform vitally important functions at great personal and financial sacrifice. When jurors are released to speak to the media after performing a public service, we should not criticize the jurors for their lack of sophistication in dealing with the media. They are who they are—members of the public, which is why we asked them to serve in the first instance.

          While I don’t want to draw more angry emails from readers telling me how complicated these investigations are and that I need to be more patient, I will risk that outcome to state the obvious: If Merrick Garland or Fani Willis had already indicted Trump, comments from grand jurors who have been discharged from jury duty would not create arguments for defendants to seek dismissal of indictments. Indeed, per Judge McBurney’s comments, any special grand juror can tell CNN today what recommendations are contained in the final report and what Lindsey Graham said to the grand jury. If Garland and Willis care about potential prejudice caused by delay in indictments, there is an obvious solution.

          And one final point of personal privilege: I have heard hundreds of times from annoyed readers who tell me, “If you shoot at the king, you better not miss.” That is a folksy saying, but it is nowhere found in statute or common law and misstates the prosecutorial judgment in deciding when to indict. Finally, it wrongly suggests that there is a special standard that applies to Trump. There is not. He is not a king; he is a citizen of the United States who stands equal before the law with all other citizens. He is entitled to the same rights and process as all other citizens, no more or less.

The Wisconsin election for a seat on the Supreme Court.

          Wisconsin is holding a special election to fill a vacancy on its Supreme Court. As explained in earlier newsletters, that election may be one of the most consequential elections in the run-up to 2024. Judge Janet Protasiewicz has secured a spot in a two-person run-off against an extremist GOP judge who will reportedly receive $10 million in dark money from GOP PACs. Readers of this newsletter are sending me daily reminders about efforts to help Judge Protasiewicz. I summarize a few of those opportunities below.

          But first, hop over to Jessica Craven’s Chop Wood Carry Water on Substack to see Judge Protasiewicz's campaign announcement video: Extra! Extra! 2/26 - by Jessica Craven (substack.com).

          Next, there are numerous post-carding opportunities.

•  Per Sarah O. at PostCardsToVoters, Tony the Democrat has a huge list of addresses and is actively looking for volunteers. New volunteers can text “join” to 484-275-2229 (put Abby the Bot in your contacts) to join PostcardsToVoters.org or email "Hello" to join@tonythedemocrat.org. If people are already a member of PostCardsToVoters, just text Abby the Bot.

          A member of the Bay Area Coalition wrote to say that you can help in the following ways:

• Write postcards for the Blue Wave Postcard Movement 

• Participate in virtual phone banking for Judge Janet every Wednesday from 3:30 to 5:30 PM PST. Sign-up here.   

• Phone bank through WisDems, here. 

• Learn about the Wisconsin election by attending a presentation by Focus For Democracy on Thursday, March 9, at 5 p.m. PT, 8 p.m. ET. Register here.

• Donate directly to Judge Protasiewicz’s campaign here or to the Wisconsin Democrat Party (which is strongly backing Judge Protasiewicz here.   

          Okay, that’s a lot! And there is more coming, but if you are interested in this vital race (and you should be!), volunteer or donate above, or watch this space for future opportunities!

Concluding Thoughts.

          Reader Lee Fadem turns 101 on February 28^th. On his 100th birthday, I shared his email address in the newsletter, and he spent the next three weeks sending “Thank you” replies to readers. So, this year, leave Lee a birthday wish in the Comments section (everyone can). But first, spend a few minutes listening to Lee discuss his service in WWII and subsequent history of building a family and business after the war. The Digital Collections of the National WWII Museum : Oral Histories | Oral History (ww2online.org). I guarantee that you will feel better about America’s prospects for the future, knowing that people like Lee are willing to defend our nation in times of need. And you will be incredibly grateful to Lee.  

          Talk to you tomorrow!