The Supreme Court on Tuesday denied a request by Sen. Lindsey Graham, R-S.C., to dam a subpoena demanding his testimony before a Georgia grand jury investigating possible criminal interference in that state’s 2020 presidential election.
The court in its ruling said a federal judge’s earlier order upholding the subpoena adequately protected Graham from being questioned about what he has claimed was legislative activity during his testimony, as provided for by the Structure’s Speech or Debate Clause.
There have been no noted dissents by any of the Supreme Court’s justices to the order, which lifts a brief hold placed on the subpoena last week by Justice Clarence Thomas.
The Fulton County special grand jury is probing the actions of former President Donald Trump and his allies, including Graham, on the heels of Georgia’s 2020 election, which was won by President Joe Biden.
Graham had contacted Georgia Secretary of State Brad Raffensperger, the state’s top election official, and his staff in November 2020 as Trump was attempting to get the outcomes there and in other swing states that Biden won overturned.
The subpoena to Graham calls for him to testify before the grand jury in Atlanta on Nov. 17.
The Fulton County District Attorney’s Office, which has been presenting evidence to the grand jury, last week warned the Supreme Court that if Graham’s request to delay the subpoena was granted, “the Grand Jury’s work will probably be delayed indefinitely, ensuring that information which could either clear the innocent of
suspicion or increase scrutiny on the guilty will proceed to lie beyond the Grand Jury’s grasp.”
In its order Tuesday, the Supreme Court noted, “The lower courts also made clear that Senator Graham may return to the District Court should disputes arise regarding the applying of the Speech or Debate Clause immunity to specific questions. “
“Accordingly, a stay or injunction just isn’t vital to safeguard the Senator’s Speech or Debate Clause immunity.”
Graham’s lawyer, Donald McGahn, didn’t immediately reply to a request for comment on the Supreme Court’s motion.
In an announcement, Graham’s office said, “Today, the Supreme Court confirmed that the Structure’s Speech or Debate Clause applies here. Additionally they affirmed that Senator Graham ‘may return to the District Court’ if the District Attorney tries to ask questions on his constitutionally protected activities.”
“The Senator’s legal team intends to interact with the District Attorney’s office on next steps to make sure respect for this constitutional immunity,” the statement said.
Graham has been fighting to dam the subpoena since July, when the grand jury demanded not only his testimony but additionally that of the attorney Rudy Giuliani and other members of Trump’s campaign legal team.
In September, a federal judge in South Carolina denied Graham’s challenge to the subpoena, writing that Fulton County District Attorney Fani Willis “has shown extraordinary circumstances and a special need for Senator Graham’s testimony” about “alleged attempts to influence or disrupt” Georgia’s elections.
But Judge Leigh Martin May limited the scope of the subpoena, saying Graham couldn’t be questioned about “investigatory fact-finding on telephone calls to Georgia election officials,” because such activity would fall under the protection of the Structure’s Speech or Debate Clause.
On Oct. 20, a panel of judges on the eleventh Circuit U.S. Court of Appeals unanimously rejected Graham’s request to dam the execution of the subpoena pending his appeal of the lower court’s ruling.
The appeals panel said Graham had “did not exhibit that he’s prone to succeed on the merits of his appeal.”
The panel also said that “there is important dispute about whether his phone calls with Georgia election officials were legislative investigations in any respect.”
A day after that loss, Graham asked Thomas, the Supreme Court justice who has authority over emergency applications from eleventh Circuit cases, to temporarily block the subpoena. Thomas did so on Oct. 24.
On Thursday, the Fulton County D.A.’s office filed an opposition to further delay of the subpoena, arguing that Graham had “no significant likelihood” of winning any appeal of May’s order. The D.A.’s filing also said “the delay resulting from a stay could be unavoidably harmful to the administration of its investigation.”
The filing noted “almost immediately” after Graham’s calls to Raffensperger and his staff “became public knowledge, there was considerable public dispute among the many participants as to what precisely Senator
Graham had said throughout the calls.”
“Secretary Raffensperger said that Senator Graham suggested that Georgia could discard or invalidate large numbers of mail-in ballots from certain areas,” the filing said.
“Secretary Raffensperger has also noted that, on the identical day Senator Graham called him, attorney Lin Wood filed a lawsuit difficult the legality of Georgia’s signature verification procedures, and former President Trump tweeted criticism of Georgia’s signature verification methods. Secretary Raffensperger found the context significant in light of his conversation with the Senator.”
Grahams has contradicted Raffensperger’s version of events, saying he never made suggestions of invalidating ballots, the filing noted.
