Georgia judge says Sen. Lindsey Graham must testify in 2020 election probe

Sen. Lindsey O. Graham (RS.C.) must appear before a Georgia grand jury investigating possible attempts by Donald Trump and his allies by him to disrupt the state’s 2020 presidential election, a federal judge ruled Thursday.

But the judge limited the range of questions that prosecutors can ask, partially acknowledging Graham’s claim that his status as a sitting senator provides protection against such inquiries.

Graham’s lawyers had sought to throw out the subpoena from the Georgia grand jury, arguing that his calls to Georgia officials after the 2020 election were part of his official Senate duties and thus immune from the probe.

“The Court is unpersuaded by the breadth of Senator Graham’s argument and does not find that the Speech or Debate Clause completely prevents all questioning related to the calls,” wrote US District Judge Leigh Martin May in a decision released Thursday.

The ruling is unlikely to be the final word on the matter and will be reviewed by the US Court of Appeals for the 11th Circuit.

Graham, a close Trump ally, has resisted the subpoena from Fulton County District Attorney Fani Willis (D) who wants to question the South Carolina senator about calls he made to Georgia election officials soon after Trump lost the state’s election to Joe Biden. Prosecutors say Graham has “unique knowledge” about the Trump campaign and the “multi-state, coordinated efforts to influence the results” of the 2020 election in Georgia and elsewhere.

The Georgia criminal investigation into Trump and his allies, explained

Graham says his actions are constitutionally protected by the Constitution’s “speech or debate” clause, which prohibits the questioning of lawmakers about their legislative acts. The senator’s lawyers have said in court filings that his calls were legitimate legislative activity and that they have been informed that Graham is a witness — not a target of the investigation.

In August, May rejected Graham’s request to delay his testimony and invalidate the subpoena, saying she did not accept his characterization of the phone calls “as only containing legitimate legislative factfinding.” The Supreme Court has made clear, she wrote, that political activity is not protected by the Constitution and that Graham could be questioned about certain aspects of the discussions.

To rule otherwise, she wrote, “would allow any sitting senator to shield all manner of potential criminal conduct occurring during a phone call merely by asserting the purpose of the call was legislative fact-finding — no matter whether the call subsequently took a different turn .”

The appeals court granted Graham a temporary reprieve last week when it ordered the District Court judge to take another look at the senator’s claim that he should be shielded from having to answer some questions and that the subpoena should be narrowed. The 11th Circuit said it would take up Graham’s appeal after the District Court’s review.

In her latest opinion, May shared that portions of Graham’s calls to Georgia officials “may constitute legitimate legislative activity that falls within the protections of the Speech or Debate Clause.”

To the extent Graham’s questions related to his coming vote on whether to certify election results, “such questions are shielded from inquiry under the Speech or Debate Clause,” May wrote. “In other words, Senator Graham cannot be asked about the portions of the calls that were legislative fact-finding.”

But the judge wrote “Senator Graham may be questioned about any alleged efforts to “cajole” or encourage Secretary Raffensperger or other Georgia election officials to throw out ballots or otherwise alter Georgia’s election practices and procedures. Likewise, the grand jury may inquire into Senator Graham’s alleged communications and coordination with the Trump Campaign and its post-election efforts in Georgia, as well as into Senator Graham’s public statements related to Georgia’s 2020 elections.”

Willis’s team has interviewed more than half of its planned witnesses, including Trump’s former lawyer Rudy Giuliani. Willis is seeking testimony from Trump’s former chief of staff Mark Meadows and another former legal adviser, Sidney Powell, and has not ruled out calling Trump as a witness. A state court judge this week ordered Georgia Gov. Brian Kemp (R) to comply with a subpoena but delayed his testimony until after the November election.

Trump allies resist testifying the Georgia election probe expands

Once the special grand jury finishes its work, it will issue recommendations to Willis on whether to bring criminal charges. Willis has said she expects that to happen before the end of the year.

At issue in Graham’s subpoena dispute are calls the senator made to Georgia Secretary of State Brad Raffensperger (R) and his staff in which prosecutors said in court filings the senator asked about “reexamining certain absentee ballots” in the state to “explore the possibility of a more favorable outcome for former President Donald Trump.” Graham’s lawyers have rejected that characterization and said he was gathering information in advance of a vote to certify the election for Biden and to co-sponsor election-related legislation.

Graham was critical of the investigation this week, telling Fox News in an interview that prosecutors should not be allowed to call members of Congress as witnesses “when they are doing their jobs.” He warned that such questioning upsets the constitutional separation of powers and vowed to continue to fight the subpoena in court.

Leave a Comment