Former Vice President Mike Pence’s reported plans to argue that the Constitution’s “speech or debate” clause exempts him from complying with a grand jury subpoena issued in the Jan. 6 special counsel investigation makes him a “faux institutionalist”—someone who claims to be protecting our democratic institutions when they are really protecting themselves.
Pence apparently reasons that his former role as president of the Senate makes any inquiry by the Justice Department into what he knows about the events of Jan. 6 an off-limits separation of powers violation because he was performing “legislative” duties.
According to a Politico source, Pence is so worried about protecting the Constitution that “he feels duty-bound to maintain that protection, even if it means litigating it.” How convenient for Pence that refusing to testify helps him politically by looking like he is fighting against participation in a criminal probe damaging to former President Trump.
Evidence of Pence’s real motive is further revealed by his plans to announce his legal strategy during an upcoming visit to Iowa as he finalizes his plans to launch his presidential campaign.
But Pence is no lonely heart—he’s got plenty of company in the “faux institutionalists” club, including the Supreme Court and even the Justice Department.
Take SCOTUS’ refusal to adopt a judicial ethics code of conduct which makes them the only judges in the country—federal or state—to have no ethics code. The ostensible obstacle to doing something that all other judges do is the high court’s concern that subjecting themselves to a required code of ethics would undermine the court as an institution because it would threaten their independence and—wait for it—pose a potential separation of powers violation.
But conveniently for SCOTUS, the lack of an enforceable ethics code provides them some insulation from such ethical controversies like Justice Thomas refusing to recuse himself from cases involving Jan. 6 even though his wife—Ginni Thomas—was and is an outspoken proponent of election denial and the recent reveal that Chief Justice Roberts’ wife is a legal headhunter who has made millions placing lawyers at law firms some of which do business before SCOTUS. According to new reporting, the justices have been unable to agree with each other about an ethics code despite discussing it for at least the past four years.
The issue has been on Roberts’ radar even longer. As far back as a decade ago he defended the lack of a code in his 2011 Year End Report on the Federal Judiciary, assuring us that the justices do consult the ethics code applicable to lower court judges and can consult a wide variety of other sources for guidance. He concluded with a self-serving truism, saying that “no compilation of ethical rules can guarantee integrity.”
With even the American Bar Association now adding to calls for a SCOTUS ethics code it seems obvious that SCOTUS’ concern that adopting such a code will endanger its institutional integrity is not shared. Rhetoric from Chief Justice Roberts that such refusal is necessary to protect the institution may serve to shield the justices from real scrutiny and accountability but does not really protect the high court. Just the opposite seems to be happening as the American people are steadily losing faith in an institution whose very legitimacy depends on public confidence.
The Justice Department is now led by avowed institutionalist former federal court of appeals judge Merrick Garland. Garland who spent the majority of his career as a jurist appears to have carried an appeals court deliberative psyche into his job as the nation’s top prosecutor where he inherited a DOJ degraded by former Attorney General Barr’s use of it as a political sword and shield for Trump.
Understandably, one of Garland’s main objectives has been to protect the DOJ by restoring its reputation but his approach appears focused so much on avoiding the appearance of looking political that political considerations seem as much of a concern for him as the evidence and law. Take for example, his inexplicable delay in appointing a special counsel to investigate former Vice President Pence’s handling of classified documents.
Factually, the case bears striking resemblance to the President Biden situation where Garland was quick to appoint a special counsel with the only difference being a political one—Biden is President and Pence is not yet. If Pence declares his candidacy—as he is widely expected to do—that may sway Garland since his decision to appoint a special counsel for Trump seemed to pivot on the fact that Trump had declared his candidacy. But again such a decision turns on politics not the law.
Merrick Garland is an honorable man who no doubt genuinely wants to rehabilitate and protect the DOJ but he appears to be conflating his concern with protecting himself from accusations of political partisanship with actually protecting the institution he serves. If Garland really wants to erase the stain left by Bill Barr and former President Trump on the DOJ then he needs to consider that trying to avoid political criticism is not the way to do it.
One of Garland’s role models as an AG is said to be Attorney General Ed Levi who took the reins of the DOJ in the aftermath of Watergate. Garland has Levi’s portrait hanging in his office. But unlike Garland, Levi did not seek to reform through merely leading by example. Rather, Levi instituted reforms within the DOJ and spoke openly about the “crisis of legitimacy” caused by the Nixon era.
Garland seems loath to criticize his predecessor or even Trump and is even allowing the blatantly politically motivated investigation led by Special Counsel John Durham into the origins of the DOJ’s Russia probe to proceed towards its inevitably politically volatile end.
These examples above of “faux institutionalists” don’t necessarily involve ill-intentioned people but they do involve a common failing. It’s a failure to realize that being a true institutionalist means sacrificing yourself and reputation in the short term for the greater good of building institutions worth saving in the long term. Otherwise, all you end up doing is protecting yourself.