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Supreme Court declines to block Lindsey Graham's testimony before Georgia grand jury

Georgia Election Investigation
Posted at 1:15 PM, Nov 01, 2022
and last updated 2022-11-01 15:15:00-04

The Supreme Court on Tuesday refused to halt a lower court order requiring Republican Sen. Lindsey Graham to testify before a Georgia grand jury investigating efforts by former President Donald Trump and his allies to reverse the outcome of the 2020 presidential election in the state, clearing the way for him to answer questions before the panel.

In a brief, unsigned order, the Supreme Court said that lower courts "assumed that the informal investigative fact-finding that Senator Graham assertedly engaged in constitutes legislative activity protected by the Speech or Debate Clause ... and they held that Senator Graham may not be questioned about such activities. The lower courts also made clear that Senator Graham may return to the district court should disputes arise regarding the application of the Speech or Debate Clause immunity to specific questions. Accordingly, a stay or injunction is not necessary to safeguard the Senator's Speech or Debate Clause immunity."

There were no noted dissents.

Graham, of South Carolina, filed an emergency request with the high court last month asking the justices to step into his dispute with Fulton County District Attorney Fani Willis over a subpoena for his testimony before a state "special grand jury." The grand jury is investigating attempts to disrupt the presidential election in Georgia, and Graham is not a target of the probe, his lawyers said in a court filing.

Instead, Georgia investigators want to question Graham about two calls he made to Secretary of State Brad Raffensperger and his staff after the election. During the calls, Graham asked about "reexamining certain absentee ballots cast in Georgia in order to explore the possibility of a more favorable outcome for former President Donald Trump," Willis wrote in a petition seeking to compel his testimony.

But the senator, one of Trump's closest Senate allies, challenged the subpoena in federal court, arguing he is shielded from having to testify under the Constitution's speech or debate clause, as he was performing "legislative acts" when he called Raffensperger.

A federal district court ordered Graham to appear before the grand jury, but limited the scope of the questioning. The South Carolina Republican appealed to the U.S. Court of Appeals for the 11th Circuit, which rejected his attempt to block the subpoena, issued in July.

Graham then asked the Supreme Court to intervene, and Justice Clarence Thomas temporarily put on hold the lower court order that said the senator must appear. Thomas, who oversees emergency matters arising from the 11th Circuit, also called on Fulton County prosecutors to respond to Graham's request. That earlier order has now been lifted.

In their filing to the high court, Willis and fellow prosecutors argued Graham is seeking protection from testifying for activities that are not covered by speech or debate clause, but pledged to safeguard the senator's rights and avoid improper questioning about any legislative actions.

If Graham prevailed before the Supreme Court, "the grand jury's work [would] be delayed indefinitely, ensuring that information which could either clear the innocent of suspicion or increase scrutiny on the guilty will continue to lie beyond the grand jury's grasp," they said.

"Such interference with the grand jury's ongoing investigation is not necessary in order to ensure the protection of the senator's rights," prosecutors argued.

Willis launched her investigation early last year after audio was made public of a phone call between Trump and Raffensperger, during which Trump asked Raffensperger to "find" enough votes to make him the winner of the state's presidential contest after the 2020 election.

The grand jury tasked with investigating the circumstances surrounding possible attempts to reverse the outcome of the election was empaneled to sit from May 2022 to April 2023 and has already heard from numerous witnesses, including Raffensperger and Gabriel Sterling, a top elections official in Georgia. It has also issued subpoenas for testimony from former White House chief of staff Mark Meadows and conservative lawyer Sidney Powell. Rudy Giuliani, Trump's former lawyer, appeared for questioning in August.

Like Graham, Meadows also resisted complying with the subpoena. But a South Carolina judge last week ordered him to testify before the grand jury.

In their filing with the Supreme Court, attorneys for Graham said he is immunized from questioning about what they said was his legislative investigation into Georgia's absentee-ballot process and the integrity of the election in Georgia, and warned he would be deprived of these constitutional immunities if forced to answer questions before the grand jury.

Any effort to question Graham on topics other than his phone calls or his examination of the 2020 election in Georgia "would only confirm this is nothing more than a fishing expedition," they wrote. "The Speech or Debate Clause would serve no real purpose if it could be bypassed through an unsubstantiated reference to non-legislative activity."

Graham is represented by Don McGahn, who served as White House counsel to Trump.

Efforts by the former president to stop the transfer of presidential power, leading up to the violent attack on the U.S. Capitol on Jan. 6, 2021, have prompted investigations at the state and federal level that in turn have sparked litigation by those under scrutiny.

In addition to Graham, Kelli Ward, the chairwoman of the Arizona Republican Party, asked the Supreme Court to block a subpoena for her phone records from the House panel probing the Jan. 6 assault. Trump, too, asked the high court to shield his White House records from the committee, but his request was denied and the National Archives and Records Administration turned them over earlier this year.