“Mike Pence’s Immunity Claim Sure Seems Frivolous” snorted the National Review’s Andy McCarthy a few weeks back after it was alleged by some presumably well-informed personage that former Veep Michael Pence would be rejecting any subpoena from the grand jury investigating the efforts of former aspiring caudillo Donaldo del Trumpo to reverse the outcome of the 2020 presidential election on the grounds that he, as vice president, is immune from such legal process under the U.S. Constitution, which states that U.S. senators and representatives are, with few exceptions, “privileged from arrest … for any speech or debate …”—the problem being, Andy points out succinctly, that the vice president, though he presides over the Senate, is not a senator.
Furthermore, Andy goes on, there are about 10 more holes in any argument Pence might fashion to get off the hook from testifying about what a shit Trump was/is, and how aggressively Donaldo strove to, at the very least, prevent the Congress from certifying Biden’s election as president, and, in the “best” of all possible worlds, have Pence declare him the winner instead.
Andy, a former FBI agent and federal prosecutor, hardly qualifies as a liberal. He wrote a whole book advocating the impeachment of Barack Obama and is now whistling the same tune regarding Uncle Joe.. But bad ass as Andy might be, he’s a goddamn creampuff compared to supposed libertarian Eugene Volokh, Stanford law professor and presiding genius at the Volokh Conspiracy, and “Instapundit” Glenn Reynolds, law professor at the University of Tennessee. I’m not really familiar with Glenn’s act, but I’m a long-time reader and occasional fan of the Volokh folk—though I inflicted a florid, frequently ad hominem beatdown of Gene himself back on Dec. 6, 2021 with the elaborately titled post Passive-aggressive hypocrisy hath made its masterpiece: The Volokh Conspiracy’s conspiracy against the rule of law. And the sad thing is, Gene is worse than ever! (Dunno if Glenn is getting better or worse or what. In 2016 he called for running over hippies. So there’s that.)
Much of what fueled my explosion of contempt re Gene back in the day was a column he ran a week before Jan. 6, 2021, expressing his confidence that January 20, 2021 “will be a Jan. 20 of an inauguration year much like any other,” which has to go down as one of the worst political predictions in American history. What made Gene’s gross pandering/hypocrisy infinitely worse was that post-Jan. 6 he lacked the courage to attempt a walk back/mea culpa of even the most mealy-mouthed kind, though he eventually worked up his nerve to pass a negative judgment on Trump—after, let it be said, some fatuous throat-clearing of the most mealy-mouthed kind. I’ll skip the mealiness and cut to Gene’s bottom line:
Trump's failure was a failure not as a speaker, of the sort that strips speakers of First Amendment protection. It was a failure, a massive and unjustifiable failure, as a public servant.
Good boy, Gene! Good boy! Now, was that so hard?
Well, fuck yeah it was, because now Gene is back, covering El Trumpo’s big fat ass. In a typical stroke of Volokhian passive-aggressive hypocrisy, Gene recently offered us The Vice-President and the Speech or Debate Clause, quoting a chunk of a post from Glenn sans any comment from Gene himself. Glenn was pissed at former 4th Circuit appellate judge J. Michael Luttig for writing a piece for the New York Times, Mike Pence’s Dangerous Ploy— “dangerous, ”in Luttig’s professional opinion, because, well, if Pence goes through with this “ploy”, the federal courts will dismiss it with all the scorn it deserves, leaving the former veep with some serious egg on his face:
Injecting campaign-style politics into the criminal investigatory process with his rhetorical characterization of [Special Counsel] Smith’s subpoena as a “Biden D.O.J. subpoena,” Mr. Pence is trying to score points with voters who want to see President Biden unseated in 2024. Well enough. That’s what politicians do. But Jack Smith’s subpoena was neither politically motivated nor designed to strengthen President Biden’s political hand in 2024. Thus the jarring dissonance between the subpoena and Mr. Pence’s characterization of it. It is Mr. Pence who has chosen to politicize the subpoena, not the D.O.J.
Now, that kind of talk, coming from a prominent legal figure, and supposedly “conservative” one at that, did not take well with Prof. Reynolds, who was sure that Pence had a much better case than the talkative Mr. Luttig was willing to concede. The argument that the speech and debate clause doesn’t apply to the veep is nonsense, Glenn says: “presiding over the Senate is surely a legislative function par excellence.” The “par excellence” is an elegant touch, but it’s also pure nonsense. What to senators do? They represent states. Does the vice president represent a state? No. What else do senators do? They draft and vote on legislation. The vice president cannot introduce a bill, cannot introduce amendments, cannot comment on any business before the Senate—as in, you know, “speech and debate”—and “shall have no Vote, unless they [the senators] be equally divided.”
If Pence gets through the first hurdle, Glenn tells us, it should be a “no brainer” that all of Pence’s conversations would be privileged, but, alas, “the Supreme Court has, somewhat bizarrely, taken a narrower view of legislative immunity” than the sort of immunity it extends to other federal officials. Again, the “somewhat bizarrely” is worth a chuckle. What does a “somewhat bizarre” Supreme Court decision look like? Does it mean anything other than “might serve as precedent for deciding a case in a way that would distress Prof. Reynolds”? One suspects not.
The whole point of all of Glenn’s dissembling, of course, and Gene’s left-handed promotion of it, is to get Donald Fucking Trump off the hook for the crime of sedition, for attempting to effect a criminal seizure of power and illegally assume the office of the president of the United States. Yes, it has come to this: law professors for lawlessness.
Afterwords
I would be more than remiss if I didn’t mention that the Volokh Conspiracy has printed several posts denying Pence’s argument, one by Jonathan H. Adler and another by Josh Blackman, which I totally did not see coming, because Josh usually makes Gene look like, well, me! Josh Blackman surprised me! Miracles can happen! Life isn’t so bad after all!
Afterwords, special metaphysical speculation edition
Gene is one of a number of illustrious libertarian Russian Jews, which includes Ilya Somin (also with the VC) and Cathy Young, who writes for the Bulwark. Ilya and Cathy can’t stand Trump, but Gene can’t help crushing on the guy, though he doesn’t like to admit it. Glenn is not Russian, not Jewish, and comes across as a “bar stool libertarian”. He writes a tough-guy column for the tough-guy New York Post. It’s “interesting” that supposedly principled anti-statist libertarians like Gene and Glenn, who claim to believe in “natural law” à la Adam Smith and “natural order” à la Friedrich Hayek, end up embracing a mindless right-wing authoritarian thug as the only possible “answer” to the authoritarian Left.
