During those conversations, Graham asked about procedures related to mail-in absentee ballots, though he and Raffensperger disagree about what the senator was implying.
During a two-hour hearing, Brian Lea, an attorney for Graham, argued the senator is shielded from testifying about the phone calls because of the U.S. Constitution’s “Speech or Debate” clause, which protects members of Congress from being questioned in court about issues that fall within their legislative purview.
But Fulton prosecutor Donald Wakeford said “there’s nothing legislative” — or normal — about a U.S. senator calling a secretary of state from a different state in the middle of a recount, and that such conversations are not protected by the Constitution.
Wakeford indicated that Graham’s calls might have been interconnected with similar efforts that were undertaken by Trump and his allies during the same time period, since several placed phone calls to high-ranking Georgia officials to pressure them to revisit election results.
Prosecutors in a court filing last week previewed some of the other questions they’d like Graham to answer before the grand jury. Among them are the circumstances that spurred Graham to call Raffensperger and what he sought and obtained from the conversation.
Judge Leigh Martin May of the U.S. District Court for the Northern District of Georgia did not say on Wednesday how she would rule on Graham’s subpoena, though she sounded skeptical about considering every aspect of the calls legislative. She urged the Republican’s attorneys to address in a new filing where protected legislative matters end and political, unprotected ones begin.
She said she’ll issue a final ruling on Friday or Monday.
Wednesday’s legal arguments unfolded differently from a similar case that May heard last month regarding another member of Congress subpoenaed by the special grand jury: Georgia U.S. Rep. Jody Hice, R-Greensboro.
May had denied Hice’s request to quash his subpoena. She instead directed lawyers for the congressman and the DA’s office to hash out a framework for the types of questions that could be asked and which could be subject to legislative privilege and thus would require a second look from a judge.
May indicated that she could ultimately settle on a similar approach for Graham, though she noted there are differences in the cases because there’s a dispute over facts in the Graham case.
Raffensperger previously said that during their exchange, Graham seemed to be asking him to throw out absentee ballots in counties that had the most mismatches of signatures, which would ultimately aid Trump. Graham insists that he did nothing wrong.
Lea on Wednesday said his client’s motivations during the calls were irrelevant given that the conversations fell under Graham’s information-gathering and oversight role as the chairman of the Senate Judiciary Committee —and his duty as a U.S. senator to certify Electoral College results.
Raffensperger and his top deputies testified before the special grand jury in June. Graham’s subpoena asked him to appear before the special grand jury Aug. 23
On Wednesday, May suggested that some of the subjects reportedly discussed during Graham-Raffensperger calls seemingly “fit more closely into the political realm” rather than the legislative arena.
May asked Graham’s attorneys about comments the senator made to an NBC reporter on Nov. 17, 2020 about his contact with Raffensperger. During the interview, Graham said he had asked about fixes that could be made to the absentee ballot signature verification process. She asked how such suggestions could be protected under the “Speech or Debate” clause.
May, an appointee of former President Barack Obama, was confirmed unanimously by the U.S. Senate in 2014. Graham was among the members to cast a vote in favor.
Graham recently hired Don McGahn, the former Trump White House counsel, to help with his case. McGahn was present at the hearing on Wednesday but did not speak.
During a press conference in Columbia, S.C., on Tuesday, Graham promised to continue the fight.
“I was chairman of the Judiciary Committee, I had to vote on certifying an election. This is ridiculous. This weaponization of the law needs to stop,” he said, according to the Associated Press. “So I will use the courts, and we’ll 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 job without fear of some county prosecutor coming after you.”