NOBODY Is Above The Law!!!!

In light of the numerous times in the past decade that the people of the United States have narrowly avoided losing our democratic foundation, culminating with the attempted coup on January 6th, 2021, one would think the priority at this point would be to reinforce the intent of the Constitution by bringing to justice those who attempted to undermine it.  Or, put more simply, to figure out who was behind the plot to overthrow our votes, our elected officials, and punish them, or at the very least ensure they NEVER hold public office again!  However, more than two years later, we are still watching the stupid gamesmanship, seeing people refuse to honour subpoenas, and claim that they are “above the law”.  Make no mistake … NOBODY … NOBODY IS ABOVE THE LAW in the United States!

Those of you who watched the January 6th Committee hearings may remember seeing Judge J. Michael Luttig testify before the committee.  His role was that he had advised then-Vice President Mike Pence that he had no right to refuse to certify the election under law.  Fortunately for us all, Pence heeded Judge Luttig’s advice two years ago.  However today, Pence has been served a subpoena by Special Counsel Jack Smith – a subpoena which he is refusing to honour.  Once again, Judge Luttig has some very wise advice for Mr. Pence, but will he listen?  Here is Judge Luttig’s advice to Pence …


Mike Pence’s Dangerous Ploy

24 February

Judge J. Michael Luttig

Former Vice President Mike Pence recently announced he would challenge Special Counsel Jack Smith’s subpoena for him to appear before a grand jury in Washington as part of the investigation into former President Donald Trump’s efforts to overturn the 2020 presidential election and the related Jan. 6 attack on the U.S. Capitol. Mr. Pence claimed that “the Biden D.O.J. subpoena” was “unconstitutional” and “unprecedented.” He added, “For me, this is a moment where you have to decide where you stand, and I stand on the Constitution of the United States.” Mr. Pence vowed to take his fight all the way to the Supreme Court.

A politician should be careful what he wishes for — no more so than when he’s a possible presidential candidate who would have the Supreme Court decide a constitutional case that could undermine his viability in an upcoming campaign.

The former vice president should not want the embarrassing spectacle of the Supreme Court compelling him to appear before a grand jury in Washington just when he’s starting his campaign for the presidency; recall the unanimous Supreme Court ruling that ordered Richard Nixon to turn over the fatally damning Oval Office tapes. That has to be an uncomfortable prospect for Mr. Pence, not to mention a potentially damaging one for a man who — at least as of today — is considered by many of us across the political spectrum to be a profile in courage for his refusal to join in the attempt to overturn the 2020 election in the face of Donald Trump’s demands. And to be clear, Mr. Pence’s decision to brand the Department of Justice’s perfectly legitimate subpoena as unconstitutional is a far cry from the constitutionally hallowed ground on which he stood on Jan. 6.

Injecting campaign-style politics into the criminal investigatory process with his rhetorical characterization of Mr. 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.

As to the merits of his claim, The New York Times and other news media have reported that Mr. Pence plans to argue that when he presided over the joint session of Congress on Jan. 6 as president of the Senate, he was effectively a legislator and therefore entitled to the privileges and protections of the Constitution’s “speech or debate” clause. That clause is intended to protect members of Congress from questioning and testifying about official legislative acts. Should the courts support his claim, Mr. Pence would not be required to comply with Mr. Smith’s subpoena. Mr. Pence may also be under the impression that the legal fight over his claim will confound the courts, consuming months, if not longer, before he receives the verdict — but it’s unclear what he hopes to gain from the delay. One would have thought Mr. Pence would have seized the propitious opportunity afforded him by Mr. Smith, most likely weeks or months before he even decides whether he will run for the presidency.

If Mr. Pence’s lawyers or advisers have told him that it will take the federal courts months and months or longer to decide his claim and that he will never have to testify before the grand jury, they are mistaken. We can expect the federal courts to make short shrift of this “Hail Mary” claim, and Mr. Pence doesn’t have a chance in the world of winning his case in any federal court and avoiding testifying before the grand jury.

Inasmuch as Mr. Pence’s claim is novel and an unsettled question in constitutional law, it is only novel and unsettled because there has never been a time in our country’s history where it was thought imperative for someone in a vice president’s position, or his lawyer, to conjure the argument. In other words, Mr. Pence’s claim is the proverbial invention of the mother of necessity if ever there was one.

Any protections the former vice president is entitled to under the “speech and debate” clause will be few in number and limited in scope. There are relatively few circumstances in which a former vice president would be entitled to constitutional protection for his conversations related to his ceremonial and ministerial roles of presiding over the electoral vote count. What Mr. 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.

Whatever the courts may or may not find the scope of any protection to be, they will unquestionably hold that Mr. Pence is nonetheless required to testify in response to Mr. Smith’s subpoena. 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.

Mr. Pence and his inner circle should be under no illusion that the lower federal courts will take their time dispensing with this claim. The courts quickly disposed of Senator Lindsey Graham’s speech or debate clause claim, requiring him to testify before the grand jury empaneled in Fulton County, Ga. — and his claim was far stronger than Mr. Pence’s. In the unlikely event that Mr. Pence’s claim were to make it to the Supreme Court, it, too, could be expected to take swift action.

Mr. Pence undoubtedly has some of the finest lawyers in the country helping him navigate this treacherous path forward, and they will certainly earn their hefty fees. But in cases like this, the best lawyers earn their pay less when they advise and argue their clients’ cases in public than when they elegantly choreograph the perfect exit in private — before their clients get the day in court they wished for.

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 ploy for long. And Mr. Pence shouldn’t let this dangerous tactic play out for long. If he does, it will be more than he wished for.

It is a time-tested axiom in the law never to ask questions you don’t know the answer to. This should apply to politicians in spades. But the die has been cast by the former vice president. The only question now is not whether he will have to testify before the grand jury, but how soon. The special counsel is in the driver’s seat, and the timing of Mr. Pence’s appearance before the grand jury is largely in his hands. Mr. Smith will bide his time for only so long.

17 thoughts on “NOBODY Is Above The Law!!!!

    • I agree … he speaks the truth and does so well. Did you see his testimony before the J6 committee? I hadn’t heard of him prior to that, but I was so impressed by him that I forgot he’s actually a conservative!

      Liked by 1 person

  1. Jill, the quote says it all. These elected politicians need to respond to subpoenas just like every one else. Lindsey Graham tried to fight the Georgia election influence trial subpoena and was told to attend, which he did. Keith

    Liked by 3 people

    • PS – By the way, we should never forget that President Richard Nixon resigned before he was convicted in the Senate after being impeached in the House. The Senate had the votes against Nixon who sanctioned a burglary ring from the White House using illegal funds and tried to cover it all up. He famously said he was not a crook – he was wrong. President Gerald Ford became a one term president when he pardoned Nixon for obvious crimes. It should be noted that over twenty of Nixon’s staff were convicted of crimes (for some reason, I recall 23 of them). Keith

      Liked by 1 person

      • No, Nixon was never far from my mind during the Trump years, and in the comparison, Nixon came out looking like a far better man than Trump, though yes, he was a criminal. Still, Nixon did resign, and during his tenure he DID do some good things, such as create the Environmental Protection Agency. I cannot think of a single lasting good thing Trump ever did, nor his minions.

        Liked by 1 person

    • Indeed it does … I especially liked that last part … “… Nor do we ask any man’s permission when we ask him to obey it.”

      I imagine that ultimately Pence will answer the subpoena, but … how many times will he say “Fifth” as have so many others before him? If he is truly a man of conscience, I should think he’d be eager to set the record straight. That he is not, speaks volumes to me.

      Liked by 1 person

      • Jill, I did read a grand jurist in Georgia note how surprised she was at Lindsey Graham who answered all questions after he exhausted all avenues to avoid a subpoena. Keith

        Liked by 1 person

        • Yes, that surprised the heck out of me! I was so sure Lindsey would waste everyone’s time by pleading the 5th to every question. Sometimes he actually seems to have a conscience, but then it deserts him.

          Like

  2. Well, acceptance of responsibility and some culpability is often the first and last resort of a politician. It sort of goes with the turf.
    Of course lawyers prosper, which also goes with the turf.

    Sarcasm warning, force variable…….
    I guess we shouldn’t be too hard on Pence, after all he’s scrabbling in broad spectrum of the infamous ‘I did not have sexual relations with that woman’ ploy.
    When y’ mention that it’s funny, though, how Republicans wanted to impeach a president for consensual sexual shenanigans, while seem to be wary of doing the same thing for a morally bankrupt character who tried to overthrow the democratic process of a nation.
    Yep, sure makes a fellah think ’bout those folk in the GOP (Though it don’t seem so grand to me, these days)

    Liked by 1 person

    • I have no problem with lawyers prospering … IF they are honest. Oh wait, can one legitimately say the words ‘lawyers’ and ‘honest’ in the same sentence???

      What a perfect comparison you bring up! Yes, they wanted to hang Clinton and his wife too, for consensual sex, but look how many times Trump has been credibly accused of sexual abuse and harassment, even on tape saying vulgar things about women, and they never batted an eye!!! Have times changed so much? And why? Is enhanced communication (the Internet and social media) to blame? Or are we simply becoming less caring people? No, I’ve long said the GOP is a misnomer … ain’t nuthin’ “grand” about it these days, maybe hasn’t been since about 1950 or so.

      Liked by 1 person

      • I think we might be in the realms of The Letter of The Law vs The Spirit of the Law Jill…Go figure 🤷‍♂️🤷‍♀️.

        Arguably the GOP as folk of our age would have remembered it passed away when George Bush snr stepped down.😞.
        Socially his son meant well, but like LBJ got sucked into an overseas war through reading too much NeoCon. Since then it’s been a rapid and vapid decline.

        Liked by 1 person

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