ATLANTA (AP) – Sen. Lindsey Graham cannot postpone his appearance before a special grand jury investigating whether then President Donald Trump and others have illegally tried to influence the 2020 elections in Georgia, a federal judge said Friday.
Earlier this week, U.S. District Judge Leigh Martin May ordered Graham to honor his subpoena for the special grand jury. Graham’s attorneys appealed that order to the 11th U.S. Circuit Court of Appeals and asked May to stay his decision and bar the special grand jury from questioning him pending that appeal. May declined that request in her order on Friday.
“Under these circumstances, a further delay in the testimony of Senator Graham would significantly compound the overall delay in completing the grand jury investigation,” he added. May wrote. “Further delay therefore poses a significant risk of overall impediment to the grand jury’s investigation, and the Court therefore concludes that the granting of a stay would almost certainly result in material harm to the grand jury and its investigation.”
Graham is currently scheduled to testify on Tuesday. But he still has another motion to suspend May’s decision pending before the 11th Circuit.
Representatives for Graham did not immediately respond to messages Friday seeking comment.
Fulton County District Attorney Fani Willis opened the investigation early last year and filed motions in July seek to compel testimony of seven Trump advisers and associates, including Graham.
Former New York Mayor and Trump lawyer Rudy Giuliani, who was told he was the target of the investigation, testified before the special grand jury for almost six hours on Wednesday. Two other lawyers who advised Trump, John Eastman and Jenna Ellis, were ordered this week to appear before the panel later this month. Georgia Governor Brian Kemp filed a petition on Wednesday seeking to rescind a subpoena for his testimony.
The investigation, originally prompted by a January 2, 2021, phone call between Trump and Georgian Secretary of State Brad Raffensperger, is one of many outstanding legal threats Trump faces. Willis said she is consider seeking to compel the former president himself to testify before the special grand jury.
Lawyers for Graham, a South Carolina Republican, argued that a provision of the United States Constitution affords absolute protection against a senator questioned on legislative acts. But the judge found there are “considerable areas of potential grand jury inquiry” that fall outside the scope of this provision. The judge also rejected Graham’s argument that the principle of “sovereign immunity” protects a US senator from being summoned by a prosecutor.
Graham also argued that Willis, a Democrat, failed to demonstrate the extraordinary circumstances necessary to compel testimony from a senior official. But the judge disagreed, finding Willis had shown “extraordinary circumstances and a special need” for Graham’s testimony on matters related to an alleged attempt to influence or disrupt the Georgia election.
Willis and his team said they wanted to ask Graham about two phone calls they allegedly made with Georgian Secretary of State Brad Raffensperger and his staff shortly after the 2020 general election. During those calls, Graham asked to “re-examine certain absentee ballots cast in Georgia to explore the possibility of a more favorable outcome for former President Donald Trump,” Willis wrote in a petition.
Graham also “referenced allegations of widespread voter fraud in Georgia’s November 2020 election consistent with public statements made by known Trump campaign affiliates,” she wrote.
Republican and Democratic state election officials across the country, the courts, and even Trump’s attorney general found there was no evidence of voter fraud sufficient to affect the election outcome.
In asking May to suspend his decision, Graham’s lawyers argued that his immunity rights would be violated when he was questioned.
Willis’ team responded that delaying Graham’s testimony would harm the investigation. In addition to the facts he knows, he should also shed light on other sources of information the special grand jury might want to pursue, they wrote. So waiting to talk to him “could ultimately delay” the whole investigation.
In the separate stay motion filed with the 11th Circuit, Graham’s attorneys argue that on Wednesday Senior Assistant District Attorney Donald Wakeford agreed to postpone scheduled testimony pending the outcome of the appeal. They included a voicemail left by Wakeford for Graham’s attorney, Brian Lea.
Lea said in a statement filed with the motion that later that afternoon Wakeford confirmed that Graham’s grand jury appearance would not move forward until the appeal was resolved. But then Wakeford emailed 20 minutes later “stating that he didn’t ‘want to characterize the content of our response until it was written,'” Lea wrote.
Lea said he contacted Wakeford several times by phone and email, but received no response until Wakeford emailed at 4:40 a.m. Friday saying the office of the District attorney intended to oppose the suspension and would argue that Graham should appear before the big special. jury as expected.
Associated Press writer Meg Kinnard in Columbia, South Carolina, contributed reporting.
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