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US appeals court halts Graham testimony before Atlanta grand jury


Sen. Lindsey Graham (R-S.C.) speaks during a news conference on Capitol Hill in Washington, May 10, 2022. A federal appeals court temporarily blocked Graham on Sunday, Aug. 21, from testifying in the investigation into efforts by President Donald Trump and his allies to overturn the 2020 presidential election results in Georgia.

By Richard Fausset


A federal appeals court temporarily blocked Sen. Lindsey Graham, R-S.C., on Sunday from testifying in the investigation into efforts by former President Donald Trump and his allies to overturn the 2020 presidential election results in Georgia. The appeals court instructed a lower court to determine whether Graham should be exempt from answering certain kinds of questions, given his status as a federal lawmaker.


The ruling by the U.S. Court of Appeals for the 11th Circuit gives a temporary reprieve to Graham, who has been fighting prosecutors’ efforts to bring him before a special grand jury. After a protracted bout of legal sparring, Graham, at the end of last week, appeared to have failed in his efforts to remain above the matter and had been expected to testify behind closed doors Tuesday in a downtown Atlanta courthouse.


Graham has argued, among other things, that he should be exempt from testifying under the U.S. Constitution’s speech and debate clause, which prohibits asking lawmakers about their legitimate legislative functions. The appeals court laid out further steps Sunday that must be taken before Graham gives any testimony.


First, the court ruled, a U.S. District Court must determine whether Graham is “entitled to a partial quashal or modification of the subpoena to appear before the special purpose grand jury” based on the speech and debate clause issue. After that, the appeals court said, it will take up the issue “for further consideration.”


Lawyers for Graham have said he was informed by Fulton County prosecutors that he was a witness, not a target, in the case.


Even so, prosecutors want Graham’s testimony for a number of reasons. Among them are two phone calls that he made just after the 2020 election to Brad Raffensperger, Georgia’s secretary of state, in which Graham inquired about ways to help Trump by invalidating certain mail-in votes.


They also want him to answer other questions about what they have called “the multistate, coordinated efforts to influence the results of the November 2020 election in Georgia and elsewhere.” Prosecutors have said in court documents that they expect Graham’s testimony “to reveal additional sources of information” related to their investigation.


This month, Graham called the effort to make him testify “ridiculous” and a “weaponization of the law.”


“We will go as far as we need to go and do whatever needs to be done to make sure that people like me can do their jobs without fear of some county prosecutor coming after you,” he said.


Last Monday, U.S. District Judge Leigh Martin May ordered Graham to testify, writing that prosecutors had shown that there was “a special need for Mr. Graham’s testimony on issues relating to alleged attempts to influence or disrupt the lawful administration of Georgia’s 2022 elections.”


Graham appealed his case to the 11th Circuit and argued to May that he should not have to testify until the appeals process was concluded. The prosecutor leading the investigation, District Attorney Fani Willis of Fulton County, pushed back. In a court filing, she said the resolution of the appeal might not come for months, hampering her efforts to flesh out a broader investigation in a timely fashion. Willis has said that the case could result in racketeering or conspiracy charges involving multiple defendants.


May has thus far been skeptical about Graham’s claim that he should not have to testify at all, writing that “there are multiple topics upon which Senator Graham could face questioning that in no way implicate protected legislative activity under the speech or debate clause.”


These topics, she wrote, include acts that are “political in nature rather than legislative,” and that would encompass any coordination with the Trump campaign; efforts to “cajole” or “exhort” Georgia election officials to change election results or processes; and any public statements or speeches Graham made outside of Congress about the 2020 elections.


She also warned against an overbroad application of the speech and debate clause. Doing so, she said, “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.”


Even though Graham’s testimony in front of the special grand jury has been delayed, the appellate court seemed to signal that it may approve future questioning of Graham not covered by the speech and debate clause.


“So they don’t want the speech and debate-protected questions to be asked, but as to the rest of the subpoena, the rest of the questions, they are signaling that they will allow it,” said Norman Eisen, a lawyer who served as special counsel to the House Judiciary Committee during the first impeachment and trial of Trump. In an email Sunday, he said: “Note that they are remanding to a district court judge who has already made her views clear that many of the questions that the DA wants to ask are permissible and not within the bounds of the speech and debate clause.”


In the Georgia investigation, the speech and debate clause was also invoked by Rep. Jody Hice, R-Ga., a Trump ally, as he sought to quash his own subpoena to appear before the special grand jury. In that matter, May ruled that Hice must testify, while noting that some questions may be off limits.


Language similar to that of the speech and debate clause exists in the Georgia Constitution, and Lt. Gov. Geoff Duncan and former state Sen. William Ligon invoked that language earlier this summer as they sought to avoid appearing before the special grand jury. But in early July, Superior Court Judge Robert C.I. McBurney of Fulton County took a position similar to May’s, ruling that the men must testify but should not be made to answer questions prohibited by the state immunity clause.


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