Graham’s attorneys had sought to reject the Georgia grand jury subpoena, arguing that his appeals to Georgia officials after the 2020 election were part of his official Senate duties and therefore immune from investigation.
“The Court is not persuaded by the breadth of Senator Graham’s argument and does not find that the speech or debate clause completely precludes any questioning related to the appeals,” U.S. District Judge Leigh Martin May wrote. , referring to a constitutional provision that protects legislators from being questioned about legislative activity.
The decision is unlikely to be the final word on the matter, and it will be reviewed by the United States Court of Appeals for the 11th Circuit and could be challenged in the U.S. Supreme Court.
Graham, a close ally of Trump, resisted a subpoena from Fulton County District Attorney Fani Willis (D), who wants to question the senator about calls he made to Georgia election officials shortly after Trump lost the election against Joe Biden. Prosecutors say Graham has “unique knowledge” of the Trump campaign and “coordinated multistate efforts to influence the results” of the 2020 election in Georgia and elsewhere.
Graham says his actions are protected by the Constitution’s “speech or debate” clause. The senator’s lawyers said in court documents that his calls were legitimate legislative activity and that they had been told Graham was 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 containing only legitimate legislative inquiries”. The Supreme Court clarified, she wrote, that political activity is not constitutionally protected and that Graham could be questioned about certain aspects of the discussions.
To say otherwise, she wrote, “would allow any sitting senator to shield all sorts of potential criminal behavior occurring on a phone call simply by asserting that the purpose of the call was a legislative inquiry — little does not matter if the call then took a different turn. .”
The appeals court granted Graham a temporary stay last week when it ordered the district court judge to reconsider the senator’s claim that he should be shielded from having to answer certain questions and that the subpoena should be restricted. The 11th Circuit said it would take up Graham’s appeal after the district court’s review.
In her latest opinion, May acknowledged that portions of Graham’s appeals to Georgia officials “may constitute legitimate legislative activity that falls within the protections of the speech or debate clause.”
To the extent that Graham’s questions were related to his upcoming vote on whether to certify election results, “such questions are immune from investigation,” May wrote. “In other words, Senator Graham cannot be questioned about the portions of the appeals that sought to establish legislative fact.”
But the judge gave way to Willis’ team to question Graham about ‘any alleged efforts to ‘cajole’ or abet. Georgian Secretary of State Brad Raffensperger (R) or other Georgia election officials “to cast ballots or otherwise alter Georgia’s election practices and procedures.”
The grand jury, she wrote, may also ask questions about “Graham’s alleged communications and coordination with the Trump campaign and his post-election efforts in Georgia, as well as Senator Graham’s public statements regarding the 2020 elections in Georgia”.
In a statement Thursday, Graham’s office said, “We are pleased that the District Court has recognized that Senator Graham’s testimony is protected by the speech or debate clause” and that the senator would “continue to represent the interests institutions of the Senate and the Constitution before the Eleventh Circuit.
A lawyer who filed an amicus brief supporting Willis’ position also endorsed the decision.
“The Constitution is not an absolute bar to a senator or anyone else testifying on non-legislative matters, and the judge listed them here,” said Norman Eisen, a lawyer during Trump’s first impeachment. .
Willis’ office declined to comment on Thursday. His team interviewed more than half of his planned witnesses, including Trump former lawyer Rudy Giuliani. Willis is seeking testimony from former Trump 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 Governor Brian Kemp (R) to comply with a subpoena, but delayed his testimony until after the November elections.
On Wednesday, John Eastman, the conservative attorney who advised Trump on scenarios for challenging the 2020 election results, appeared before the grand jury. Prior to his testimony, Eastman’s attorneys said they asked their client to cite solicitor-client privilege and his constitutional right to remain silent.
Once the special grand jury completes its work, it will issue recommendations to Willis on whether to pursue criminal charges. Willis said she expected that to happen before the end of the year.
At issue in the dispute over Graham’s subpoena were calls the senator made to Raffensperger and his staff in which prosecutors said in court documents that the senator had asked to “review certain absentee ballots” in the state to “explore the possibility of a more favorable outcome for former President Donald Trump “. Graham’s lawyers rejected that characterization and said he was gathering information ahead of a vote to certify Biden’s election and co-sponsor election-related legislation.
Graham criticized the investigation this week, telling Fox News in an interview that prosecutors shouldn’t be allowed to call members of Congress as witnesses “when they’re doing their job.” He warned that such questioning upsets the constitutional separation of powers and pledged to continue to fight the subpoena in court.