Former Vice President Mike Pence has planted his flag. The hill where he planted that flag is the “speech and debate” clause of the Constitution. That hill is made of sand according to many legal experts, but it is really all Pence has as he tries to avoid testifying in the January 6th DOJ investigation that special counsel Jack Smith is leading.

On his program Wednesday night, Lawrence O’Donnell laid out in very clear and legally sound terms what will happen as he tries to avoid testifying.

O’Donnell began by giving a short history lesson. He goes back to the actual cases where the speech and debate clause was even mentioned in regard to January 6th. It turns out, it wasn’t some great use of the law but rather a sidenote as a frivolous lawsuit that wasn’t against Pence unilaterally, but a case filed in Utah against most of Congress, as well as a few other former executive branch members including Mike Pence. In fact, in the ruling by the appellate court, the clause isn’t even mentioned. In the previous case, where the clause was mentioned, along with a laundry list of other justifications for dismissal, wasn’t really even used in the ruling. So, at the end of the day, there is no precedent as Pence contends.

The clause reads as follows in Article I, Section 6, Clause 1:

The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.

O’Donnell points out how Pence was never a Senator. Pence also was not a representative of Congress at the time. He was the Vice President. The Vice President is not a Senator in any, way, shape, or form. He is not sworn in as a Senator, he cannot serve on a Senate committee, and he can’t vote as a Senator. His only function is to break a tie, and that does not make him a Senator by any stretch of the imagination. The Constitution is quite specific in all of that, and O’Donnell explains all of that in his monologue.

O’Donnell predicts Pence will lose his case, and it won’t even be close.

Later, legal expert Lawrence Tribe went into more detail about how all of this is a “pathetic political ploy” by Mike Pence. Tribe explains it isn’t just the text of the speech and debate clause, it is his own words based on the advice he received from a judge the morning of January 6th that he would not be playing any role as a Senator. He also told the January 6th committee tried to get him to testify, he defied them by declaring quite clearly that he couldn’t because he is a member of the executive branch.

Tribe called Pence’s ploy “performance art.”

Check out his full commentary below followed by Tribe’s remarks below that: