Vice President Pence is being warned against citing the Constitution to avoid being questioned by the special counsel going after President Trump. The warning is aired in an op-ed in the New York Times by Judge Michael Luttig, who once rode the Fourth United States Appeals Circuit and was general counsel for Boeing. In advance of January 6, 2021, the judge famously advised the vice president that he lacked the power to reject the electoral vote. 

Among Judge Luttig’s former law clerks are Senator Cruz, FBI Director Wray, and, fatefully, one of Mr. Trump’s attorneys, John Eastman. Mr. Eastman put forth a legal rationale for Mr. Trump’s case against certifying the results of the presidential election. Judge Luttig, though, told the vice president that such a course was not allowed in the Constitution. Mr. Pence held firm, cleaving to the parchment, and the system devised by the Framers worked.

Now, Mr. Pence has been subpoenaed by the special counsel, Jack Smith, who wants to talk to him in an effort to get at Mr. Trump. Mr. Pence, though, is asserting his privilege as president of the Senate, an office the Constitution assigns him by being vice president of the United States. The Constitution also ordains that senators and representatives are protected by the speech or debate clause.

That slab of constitutional bedrock forbids a member of the House or Senate from, in respect of any speech or debate in Congress, being questioned “in any other Place.” It is one of the plainest privileges provided in the Constitution. Yet, writing in the Times, Judge Luttig is dismissive. He warns of the “embarrassing spectacle” of a Supreme Court defeat and conjures the specter of the justices ordering Richard Nixon to turn over his tapes.

The judge, though, fails to mention that the speech or debate clause is available only to members of Congress and covers “any speech or debate in either house.” Nixon was not a member of Congress but rather was president when the tapes that did him in were recorded.  Nixon relied on executive privilege, not the far sturdier — well nigh absolute — immunity of speech or debate, which is established in the Constitution’s plain language. 

Judge Luttig calls Mr. Smith’s subpoena “perfectly legitimate” and labels Mr. Pence’s effort to resist it as a “far cry from the constitutionally hallowed ground he stood on Jan. 6.” That is a verdict for courts to render, and Judge Luttig expects them to “make short shrift of this ‘Hail Mary’ claim.” For Mr. Luttig, Mr. Pence doesn’t “have a chance in the world of winning his case” in any courtroom in the land. He expects a rapid defeat.

On verra, as the French say. Judge Luttig reckons that “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.” It’s a mystery to us, though, why Judge Luttig would have Mr. Pence stand on the plain language of the Constitution on January 6 and not on its plain language two years later. Nor is it clear why Judge Luttig is in such an all-fired rush.

President Biden took two years to loose a special prosecutor on President Trump. Surely it can spare time for the courts to sort out Mr. Pence’s privilege under speech or debate  — even if Judge Luttig told the January 6 committee that Mr. Trump was a “clear and present danger to American democracy.” Mr. Pence’s citation of the speech and debate clause is a bow to the separated nature of powers ordained in the Constitution that both Messrs. Pence and Luttig swore to defend.