On Monday, a federal judge rejected Sen. Lindsey Graham’s efforts to quash a subpoena compelling him to testify before a grand jury investigating Donald Trump’s attempts to overturn the 2020 election.
Specifically, the Court found that the District Attorney had shown extraordinary circumstances and a special need for Senator Graham’s testimony on issues related to alleged attempts to influence or disrupt the lawful administration of Georgia’s 2022 elections. In a 22-page opinion, U.S. District Court Judge Leigh Martin May rejected Graham’s effort and sent the matter back to state court.
This ruling is a victory for District Attorney Fani Willis, who leads a grand jury investigation that led to Graham (R-S.C.) being subpoenaed for an interview on Aug. 23. Investigators plan to question Graham about two phone calls with Georgia election officials. The calls occurred simultaneously while Trump tried to subvert his defeat, including discussing absentee ballots.
May wrote that Graham has unique insight into the substance and circumstances of the phone calls he had with Georgia election officials, how they were set up and what he did afterward. Even though other Georgia election officials have made public statements about what was said and implied on these calls, Senator Graham has largely (and indeed publicly) disagreed with their characterization of the nature of the calls. The potential testimony of Senator Graham on these issues is unique to him.
According to a statement issued by his Senate office, Graham plans to appeal the decision.
While the district court acknowledged that some of Senator Graham’s activities might be protected by Speech or Debate, the Court ignored the Constitution and binding Supreme Court precedent. Therefore Senator Graham plans to appeal to the 11th Circuit, his office advised in a statement.
According to Graham, the subpoena should be thrown out because it violates the Constitution’s “speech or debate” clause, which protects federal lawmakers from being questioned about their official duties. Senator Graham argued that his calls regarding the election process were related to policy matters that qualified as official business.
According to May, a former Obama appointee, Graham’s argument is unpersuasive, as many questions can be asked outside his legislative responsibilities. Which would include: his possible communications and coordination with the Trump Campaign and its post-election efforts in Georgia; the knowledge of other groups and individuals involved in efforts to influence Georgia’s 2020 election; and lastly, the statements he made following the 2020 election are significant to the case at hand, May wrote.
A Fulton County District Attorney spokesperson declined to comment beyond their previous court filings.
He argued in court documents that his calls to Georgia Secretary of State Brad Raffensperger were more benign and helped him determine to certify Joe Biden as the winner of the 2020 election. Last week, during a press conference in Columbia, South Carolina, he told reporters he was willing to continue litigation.
Despite Graham’s contention that his calls to Raffensperger were part of his official business, May said it wouldn’t be enough to quash the subpoena – because Raffensperger and his aides said otherwise.
Although individuals on the calls have publicly stated that Senator Graham was not simply conducting legislative factfinding. May wrote that Senator Graham was instead suggesting or implying that Georgia election officials change their processes or otherwise potentially alter the state’s results.
Whether to prohibit testimony about Graham’s phone calls would require additional questions and evidence by the grand jury, May said.
She wrote that asking Senator Graham if he directed the Georgia Secretary of State to take certain actions would be permissible and not violate the Speech or Debate Clause. That would be outside the scope of legislative information gathering, and Graham could receive an order to protect him from answering specific questions before the grand jury in the future. Still, May said Graham lacked sufficient proof at this point that all of the topics the investigation wanted to explore were off-limits.
However, the judge also acknowledged that the line between legislative activities and personal or political activities is not always clear. The issue of whether a legislator’s solo factfinding efforts are covered by the Speech or Debate Clause is not settled law, she said, she said.