The Associated Press reported the filing was directed to Justice Clarence Thomas, who handles emergency appeals from Georgia. Thomas can act on his own or refer the matter to the full court.
The 11th Circuit’s six-page decision was jointly authored by Judge Charles Wilson, an appointee of President Bill Clinton, and Judges Kevin Newsom and Britt Grant, both of whom were appointed by Trump.
Fulton County prosecutors have said they are interested in Graham’s two phone calls to Georgia Secretary of State Brad Raffensperger in the weeks after the election, what prompted the senator to make the calls in the first place and what he said in conversations afterwards.
Lawyers for Graham have argued that everything related to the calls is protected from judicial branch scrutiny because they constituted legitimate legislative fact-finding under the U.S. Constitution’s “Speech or Debate” clause. Graham at the time was chairman of the Senate Judiciary Committee, which reviews some election-related issues; was about to certify Electoral College results declaring Joe Biden the winner of the White House; and eventually co-sponsored the 2022 Electoral Count Reform Act, they said.
His attorneys have expressed concern that inquiries about other topics could serve as a back door for questioning the senator about his official Senate work, which is protected by legislative immunity.
On Aug. 15, U.S. District Judge Leigh Martin May of Atlanta rejected Graham’s request to kill his subpoena. She said Fulton 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 11th Circuit 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.
On Sept. 1, May ruled that Graham could not 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. But she said the senator could still be questioned about other matters that were more political in nature, including any communications or coordination with the Trump campaign, public statements he made about Georgia’s 2020 elections and any alleged effort to encourage or cajole Raffensperger to throw out ballots or alter Georgia’s election practices.
On Thursday, the 11th Circuit said May’s Sept. 1 ruling “adopted a more protective view, that the Speech or Debate Clause can shield informal legislative investigations. It included within that category any fact finding inquiries in Senator Graham’s phone calls to Georgia election officials relating to his decision ‘to certify the results of the 2020 presidential election.’”
And May reasoned that any non-investigative conduct covered by the subpoena was not protected, the panel said, noting there was a genuine dispute about whether Graham’s calls to the Secretary of State were indeed investigatory in nature. This means to DA’s office can question Graham accordingly, but “should there be a dispute over whether a question about Senator Graham’s phone calls asks about investigatory conduct, the senator may raise those issues at that time.”
The three-judge panel, which had stayed May’s order, said that stay is now lifted, meaning Graham must now testify before the special grand jury. Although it is expected the senator will appeal.
A spokesman for the Fulton District Attorney’s office declined to comment.