Season 3, Episode 11 (Show 115): Sing a Song (of) Mike Pence

March 8, 2023

Subpeonas are in the air, and former VP Mike Pence has declared his intention to fight his.  Where might such immunity come from?  Meanwhile, states challenge President Biden’s student debt actions, raising more issues for us.

Former Vice President Mike Pence has received subpoenas from Special Counsel Jack Smith.  Pence claims that he has grounds to challenge this subpoena; he locates this in the so-called “speech and debate” clause, and some claim that executive privilege is relevant as well.  We examine these clauses and doctrines deeply and offer our own conclusions on this issue.  Speaking of doctrines, the Supreme Court has brought the “major questions” doctrine out once again in the student debt case, and we look at that.  We also take a deeper dive on questions of standing – how do states have the ability to appear in court challenging this presidential action?  It may not surprise you to hear that Akhil wrote a relevant article, over 30 years ago.

Show Notes:

Mike Pence’s Dangerous Ploy - The NY Times

J. Michael Luttig, retired federal judge, weighs in on former VP Pence’s statements that he will challenge Special Counsel Smith’s subpeona.  Since Judge Luttig was advisor to Pence, this carries particular weight.

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Powell v. McCormack (1969)

The great originalist opinion by Chief Justice Earl Warren, in his last week on the Court, with key insights on the speech and debate clause, among other things.  One of Professor Amar’s favorite opinions.

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NY Times v. Sullivan (1964)

The landmark freedom of the press case, NY Times v. Sullivan, 376 U.S. 254, which in a manner of speaking extends the speech and debate clause by analogy to the people of the United States.

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Nixon's Shadow - Akhil Reed Amar

From Minnesota Law Review, 83:1405 (1999); Professor Amar analyzes the Nixon tapes case, which bears heavily on questions of executive privilege, many of which rear their head in this week’s podcast.

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Of Sovereignty and Federalism - Akhil Reed Amar

Once again we make available the classic article by Professor Amar which raises all sorts of issues regarding the relationship of states and the federal government – a key matter for the standing question in this week’s discussion of Biden v. Nebraska, the student debt case.

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