Some four-and-a-half months after the petition for his testimony was first approved — and after Supreme Court justices lifted a stay on his pending questioning on Nov. 1 — Graham is scheduled to appear before the 23-person grand jury on Tuesday morning.
Fulton prosecutors have fought for Graham’s testimony arguably more than any other witness, first in Fulton Superior Court and then before three levels of federal judges. Unlike with Gov. Brian Kemp, where the fighting occurred behind closed doors until the eleventh hour, virtually all of the legal tit-for-tat with Graham was exchanged in public.
Jurors and the prosecutors advising them are interested in questioning the Trump ally about two phone conversations he had with Georgia Secretary of State Brad Raffensperger about mail-in ballots in the weeks following the 2020 elections.
There has been significant disagreement over what Graham, then the chairman of the Senate Judiciary Committee, was implying during the calls. Prosecutors believe the senator suggested “reexamining certain absentee ballots cast in Georgia in order to explore the possibility of a more favorable outcome for former President Donald Trump.”
Graham has long insisted he did nothing wrong. He said he was participating in routine legislative fact-finding that’s shielded from questioning under the U.S. Constitution’s “Speech or Debate” clause.
Defense attorney Norm Eisen, co-author of a Brookings Institution report on the special grand jury investigation, said Graham’s calls to Raffenspersger and then Trump’s call to the secretary a few weeks later “really dovetail together nicely as evidentiary pieces of intent on both individuals’ part.”
For that reason, Graham may have to assert is Fifth Amendment privilege during questioning on the grounds that what he said could be incriminating, added Eisen, former President Barack Obama’s ethics czar and special counsel to the House Judiciary Committee during Trump’s first impeachment.
“If I were his lawyer, I certainly would strongly urge him to do that, because I think he could go very quickly from being a witness to a target in a nanosecond by just testifying,” Eisen said. “So I think that’s the reason why he’s been so aggressively fighting this thing.”
Graham isn’t the only high-profile witness who’s scheduled to appear before the special grand jury on Tuesday.
Former White House Counsel Eric Herschmann was also slated to speak with jurors, though it’s unclear if he will be appearing since Texas, where he resides, has kept subpoena challenges from other Fulton witnesses under wraps. Relying on evidence made public by the Jan. 6 committee, Herschmann’s Fulton summons cited conversations he had with several Trump campaign lawyers, including Rudy Giuliani, Sidney Powell and John Eastman, about “their efforts to influence the results of the November 2020 elections in Georgia and elsewhere.”
Herschmann, who became known for the colorful language he used when recounting his conversations to the Jan. 6 committee panel, did not respond to requests for comment.
Jurors were also initially expecting to hear from Trump’s former national security adviser, Michael Flynn, on Tuesday after a Sarasota, Fla., judge affirmed Flynn’s grand jury summons last week.
Flynn’s attorneys appealed the ruling, and on Friday Florida’s Second District Court of Appeals approved a provisional stay on Flynn’s appearance.
Flynn isn’t the only grand jury witness appealing lower court rulings forcing them to testify at the Fulton courthouse.
Former White House Chief of Staff Mark Meadows this week appealed his challenge to the South Carolina Supreme Court, citing “issues of significant public interest and legal principles of major importance.” That came a few days after the Virginia Court of Appeals granted former House Speaker Newt Gingrich a stay on a lower court’s ruling that directed him to testify before the grand jury on Nov. 29.
Witnesses who blow off their testimony date and aren’t in the middle of an active appeal could face legal consequences, such as a warrant for their arrest so they can be taken to Atlanta to testify.
The action comes as Fulton prosecutors have signaled the grand jury’s work is winding down. Assistant District Attorney Will Wooten told a Florida judge last week that “there are very few witnesses left.”
“We don’t anticipate that the grand jury will go on much longer,” Wooten said.
One remaining decision on the horizon: whether to subpoena Trump himself, especially in light of the Republican announcing his third run for the presidency last week.
Graham’s legal challenge is still technically alive, but it’ll essentially be moot after he appears in Fulton.
By lifting the stay on Graham’s questioning, the Supreme Court essentially deferred to an August ruling from U.S. District Judge Leigh Martin May that says Graham could be questioned about matters that are political in nature. That includes any communications or coordination with the Trump campaign; public statements Graham made about Georgia’s 2020 elections; and any alleged effort to “cajole” or “exhort” Raffensperger to throw out ballots or alter Georgia’s election practices.
Prosecutors cannot ask about anything related to Graham’s official work in Congress, May said, due to legislative privilege laid out in the Speech or Debate clause.
A Graham spokesman did not return requests for comment in recent days. For his part, Graham has indicated he wouldn’t hesitate to fight back against questions he deems to run aground of legislative privilege.
Graham could raise any issues about individual questions from the grand jury or prosecutors to Judge May, an Obama appointee the Senate unanimously confirmed to the bench in 2014. Graham voted in favor of May’s nomination at the time.