A New York judge last month ordered Giuliani to testify before the Fulton grand jury after he failed to show at a local hearing.
Giuliani’s lawyer did not respond to a request for comment.
If a subpoenaed witness does not appear on their scheduled date before a grand jury, prosecutors could seek a special arrest warrant allowing them to be detained until they testify.
On Wednesday, lawyers for Graham will ask a federal district judge in Atlanta to quash an out-of-state subpoena served on him. In the weeks following the election, Graham made two phone calls to Secretary of State Brad Raffensperger, who has already testified before the special grand jury.
In public comments, Raffensperger said Graham seemed to be asking the office to audit the state’s mail-in ballots and to throw out the ballots in counties that had the most mismatches of signatures. Graham has denied saying that and insists he did not ask Raffensperger to do anything inappropriate.
In a court filing, Graham’s lawyers contend the Constitution’s “Speech or Debate” Clause shields the senator from having to testify because he was performing his legislative duties and that Fulton prosecutors “cannot show that the senator’s actions here were anything but ‘legislative.’”
Graham’s phone calls involved inquiries about standards for mail-in voting, and he was exercising his oversight responsibilities as then-chair of the Senate Judiciary Committee into voting integrity and election-law issues, the motion said. Also, it said, Graham was fulfilling his duties to investigate allegations of fraud because he was going to have to vote to certify Joe Biden as president.
In a response filed Thursday, Donald Wakeford, Fulton’s chief senior assistant district attorney, said Graham’s testimony is necessary because there is a dispute over what was said during the phone calls with Raffensperger.
Wakefield said Graham’s contention he was simply trying to gather information “was not consistent with his public support, encouragement and abetting of the Trump campaign’s efforts to spread almost identical misinformation about election fraud in Georgia and elsewhere.”
The central focus of the special purpose grand jury investigation is Trump’s Jan. 2, 2021, phone call to Raffensperger in which the former president asked the secretary to “find 11,780 votes,” one more than was necessary to overturn the results, Wakeford wrote.
For this reason, prosecutors want to know what spurred Graham to call to Raffensperger and who the senator talked to before and after he made the calls, Wakeford said.
Wakeford also argued that the Speech or Debate Clause does not shield Graham because he was not performing a legislative act when he made the calls. To the contrary, Graham’s conversations were “far outside the norm” and was “unusual activity that mirrored the Trump campaign’s own efforts to potentially disrupt the Georgia election certification process.”
Graham recently hired Don McGahn, the former Trump White House counsel, to help argue his case.
In addition to Wakeford’s court filing, six former federal prosecutors filed a motion asking U.S. District Judge Leigh Martin May to allow them to join in the arguments. Among them are former deputy U.S. Attorney General Donald Ayer, former New Jersey Attorney General John Farmer and former Massachusetts Gov. William Weld.
Their motion says Graham’s subpoena should not be quashed because his arguments on legislative immunity have no merit.
May, who previously denied Georgia Congressman Jody Hice’s attempt to quash his subpoena on similar grounds, was put on the federal court bench by President Barack Obama in 2014. She was confirmed by the Senate on a 99-0 vote, with Graham among those casting votes in favor.
Meanwhile, two other attorneys who represented Trump after the 2020 election and were also subpoenaed last month are soon scheduled to make court appearances. Local prosecutors in the witness’ jurisdictions are assisting the Fulton DA’s office with these out-of-state hearings.
One of the witnesses is Jenna Ellis, who appeared with Giuliani at a state legislative hearing. She also authored legal memos for Trump and his lawyers that said then-Vice President Mike Pence should disregard certified electoral college votes from Georgia and other contested states.
Ellis, who lives in Berthoud, Colo., is scheduled to appear before a Colorado judge on Aug. 16. That judge is expected to decide whether Ellis must appear before the special purpose grand jury in Fulton County.
The other material witness is John Eastman, a former law professor who also served as one of Trump’s attorneys following the 2020 election. Testifying remotely before one of the state legislative hearings, Eastman contended there was evidence of fraud and told lawmakers it was their “duty” to protect the integrity of the Georgia election.
Eastman was also a key architect of the plan to pressure Pence into reject the official Democratic electors in Georgia and other swing states in favor of “alternate” Trump electors.
On Wednesday, prosecutors in Santa Fe County, N.M., filed a court petition to compel Eastman’s attendance before Fulton’s special grand jury, chief deputy district attorney Jennifer Padgett Macias said.
Eastman is now scheduled to appear before a judge in First Judicial District Court in Santa Fe, N.M., on Aug. 17.
The Associated Press recently reported that Dallas-based lawyer and podcaster Jacki Pick Deason, who also spoke at a Georgia legislative hearing with Giuliani and Ellis, filed paperwork challenging her subpoena.