Judge: Senator Graham still must testify before grand jury

South Carolina Sen. Lindsey Graham on Friday, July 29, 2022. (Joshua Boucher/The State/TNS)

Credit: TNS

Credit: TNS

South Carolina Sen. Lindsey Graham on Friday, July 29, 2022. (Joshua Boucher/The State/TNS)

A federal judge in Atlanta on Thursday ruled that U.S. Sen. Lindsey Graham of South Carolina still must appear before a special purpose grand jury investigating former President Donald Trump and his allies.

U.S. District Judge Leigh Martin May, for the second time, rejected requests to quash the summons for the senator’s testimony in its entirety. But May did say Graham, a Republican, cannot be asked about “investigatory fact-finding” during his calls to the Secretary of State’s office and how they relate to his vote to certify the 2020 presidential election.

May said this area of inquiry is protected under the Constitution’s Speech or Debate Clause, which shields members of Congress from testifying about official legislative business.

But Graham can be questioned about any alleged effort to encourage Secretary of State Brad Raffensperger to throw out ballots, or alter Georgia’s election practices, May ruled.

“Likewise, the grand jury may inquire into Senator Graham’s alleged communications and coordination with the Trump campaign and its post-election efforts in Georgia,” May wrote. Graham can also be asked about his public statements related to the 2020 elections in Georgia, she said.

Raffensperger has said that, during one of Graham’s two phone calls, the senator hinted that the secretary should throw out legally cast votes in counties that had the highest rates of mismatched signatures — an action that likely would have aided Trump.

Graham has strongly denied exerting any such pressure, saying he was simply trying to learn more about the state’s election procedures.

On Aug. 15, May denied Graham’s initial request to quash his subpoena. She said Fulton County prosecutors had shown extraordinary circumstances and a special need for Graham’s testimony about alleged attempts to influence or disrupt the administration of Georgia’s 2022 elections.

That ruling cleared the way for Graham’s scheduled appearance before the grand jury on Aug. 23. But a three-judge panel from the federal appeals court in Atlanta stepped in and ordered a delay. The judges told May to consider whether some questions posed to Graham should be off limits under the Speech or Debate Clause.

The case now once again returns to the 11th U.S. Circuit Court of Appeals, where the three-judge panel will consider Graham’s appeal in full. On Friday, the court gave Graham’s lawyers 20 days to file their supplemental legal brief and it gave Fulton prosecutors 15 days after that to file a response.

“We are pleased that the district court recognized that Senator Graham’s testimony is protected by the Speech or Debate Clause,” said a statement issued by Graham’s office. “He will continue to defend the institutional interests of the Senate and the Constitution before the Eleventh Circuit.”

In her order, May wrote she was “unpersuaded by the breadth of Senator Graham’s argument and does not find that the Speech or Debate Clause completely prevents all questioning related to the calls.”

Moreover, May wrote, “the court does not find that it can simply accept Senator Graham’s sweeping and conclusory characterizations of the calls and ignore other objective facts in the record that call Senator Graham’s characterizations into question.” That includes Raffensperger saying he understood Graham was implying that the secretary of state could throw out ballots, she said.

As for Graham’s contention that questions about his post-election communications with the Trump campaign are off limits, May wrote that “they are fundamentally political in nature rather than legislative and are not protected by the Speech or Debate Clause.”

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