Supreme Court clears way for Lindsey Graham to testify in Georgia election probe
Graham argued that his actions were legitimate legislative activity protected by the Constitution’s “Speech or Debate Clause” and that he was protected from disclosure to a grand jury.
But Tuesday’s unsigned order said lower courts had already shielded him from inquiries related to his official duties.
“Lower courts have assumed that the informal investigative fact-finding in which Senator Graham allegedly engaged constituted legislative activity protected by the Speech or Debate Clause … and have held that Senator Graham may not be questioned about such activities,” the order states.
“Lower courts have also made it clear that Senator Graham can return to the District Court if disputes arise regarding the application of the speech or debate immunity clause to certain issues. Accordingly, a delay or injunction is not necessary to protect the immunity of the senatorial speech or debate clause.”
The action canceled the temporary stay that was approved by Judge Clarence Thomas while the full court considered the issue.
A special Fulton County grand jury investigating alleged meddling by Trump and his allies in the 2020 presidential election has subpoenaed the senator to testify until Nov. 17. Jurors have already heard testimony from several of Trump’s lawyers, including Rudy GiulianiJohn Eastman and Boris Epstein. The judge also ruled that former White House chief of staff Mark Meadows must testify.
Fulton County District Attorney Fannie Willis (D) wants to question Graham calls he made to Georgia election officials shortly after Trump lost the election to Joe Biden. Prosecutors say Graham has “unique knowledge” of the Trump campaign and “multistate, coordinated efforts to influence the outcome” of elections in Georgia and elsewhere.
The senator’s lawyers said they had been informed that Graham was a witness in the investigation, not a target. Graham’s attorney, Donald F. McGahn told the Supreme Court that Graham is immunized by the Constitution and that without delay, “Sen. Graham will suffer the precise injury he appeals to prevent: being questioned in state court about his legislative activity and official acts.”
Last month, a district court judge said prosecutors could not question Graham parts of his calls which were legislative fact-finding. But the judge said Willis’ team could investigate coordination with the Trump campaign in its post-election efforts in Georgia, public statements regarding the 2020 election and any efforts to “indulge” or “incite” election officials in Georgia.
A three-judge panel of the US Court of Appeals for the 11th Circuit agreed that those actions “cannot qualify as legislative activity under any understanding of Supreme Court precedent.” Two judges were nominated by Trump.
Willis warned the Supreme Court that if Graham is allowed to avoid testifying entirely, the grand jury “will be indefinitely precluded from seeking unique information, analyzing any resulting evidence, or using the senator’s testimony to explore additional avenues of valid inquiry.” It is scheduled to complete its work by April.
Tom Hamburger contributed to this report.
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