Sen. Lindsey O. Graham (R.C.) asked the Supreme Court on Friday to block her mandatory appearance before a Georgia grand jury investigating possible attempts by President Donald Trump and his allies to disrupt the presidential election in the state of 2020.
A unanimous three-judge panel of the U.S. Court of Appeals for the 11th Circuit on Thursday rejected Graham’s attempt to block a subpoena from Fulton County District Attorney Fani Willis (D), in what the legislator stated a sitting senator is protected from testifying in these investigations.
A district court judge had said Graham must appear, but reduced the range of questions prosecutors can ask.
Without a stay of the lower court rulings, Graham’s lawyer, Donald F. McGahn, told the Supreme Court: “Senator Graham will suffer the precise injury he is appealing to avoid: being questioned in state court about its legislative activity and official acts”.
McGahn, a former Trump lawyer, asked Judge Clarence Thomas, the judge appointed to hear the 11th Circuit’s emergency petitions, for at least a temporary stay. He said Graham could be asked to testify “in less than a month.”
Thomas could act on his own in the application or refer the matter to the full court.
The classified papers at Mar-a-Lago had sensitive secrets about Iran and China
The Atlanta grand jury investigating alleged interference in the 2020 presidential election has already heard testimony from several Trump lawyers, including Rudy Giuliani, John Eastman and Boris Epshteyn. Willis also wants to question former White House chief of staff Mark Meadows.
Graham will be asked to testify about calls he made to election officials in Georgia shortly after Trump lost the election to Joe Biden. Prosecutors say Graham has “unique knowledge” of the Trump campaign and “coordinated, multi-state efforts to influence the outcome” of elections in Georgia and elsewhere.
But Graham has said his actions were legitimate legislative activity protected by the Constitution’s “speech or debate clause.” The senator’s lawyers have said they have been told Graham is a witness, and not a target, of the investigation.
Last month, a district court judge said prosecutors could not ask Graham about parts of the calls that were legislative investigations. But the judge said Willis’ team could explore possible coordination with the Trump campaign in its post-election efforts in Georgia; public statements about the 2020 election; and any effort to “hook” or “solicit” Georgia election officials.
The status of key investigations involving Donald Trump
In its order Thursday, the 11th Circuit panel agreed with the lower court judge that such actions “could not qualify as legislative activities under any understanding of Supreme Court precedent.” Two of the three judges on the jury were appointed by Trump.
Graham can still assert his rights, the court noted, if there is a dispute over certain issues.
McGahn said the case should not proceed without the Supreme Court’s intervention. “The district court’s refusal to overrule or at least stay this impermissible questioning, and the Eleventh Circuit’s perfunctory acquiescence, while misquoting the” Speech or The Debate Clause, “not invoking or applying the standard for stay, and without even mentioning sovereign immunity, begs review,” he wrote.
McGahn said the district attorney can continue the investigation without Graham by questioning “other witnesses who are not immunized by the United States Constitution.”