Judge denies Graham’s push to delay Fulton testimony

South Carolina senator wanted to postpone next week’s questioning while appealing ruling

A federal judge on Friday sided with Fulton County prosecutors who argued that grand jury testimony from U.S. Sen. Lindsey Graham should not be delayed as the South Carolina Republican appeals a recent ruling that upheld his subpoena.

U.S. District Court Judge Leigh Martin May ordered Graham to testify as directed Aug. 23 before the special grand jury studying interference in Georgia’s 2020 elections.

“Under the circumstances, further delay of Senator Graham’s testimony would greatly compound the overall delay in carrying out the grand jury’s investigation,” May ruled. “Further delay thus poses a significant risk of overall hindrance to the grand jury’s investigation, and the Court therefore finds that granting a stay would almost certainly result in material injury to the grand jury and its investigation.”

Graham will now be required to testify on Tuesday unless the 11th U.S. Circuit Court of Appeals, with which he filed an appeal, steps in first. Graham’s lawyers are asking the 11th Circuit to issue an emergency stay of May’s order and halt the senator’s testimony pending the outcome of the appeal.

Earlier Friday, the Fulton County District Attorney’s office argued that Graham’s testimony was crucial to the probe because he possessed “necessary and material information” and could “reveal additional routes of inquiry.”

“As a result, delaying the Senator’s testimony would not simply postpone his appearance,” DA Fani Willis wrote, “it would also delay the revelation of an entire category of relevant witnesses or information, each of whom would require additional time and resources to secure on behalf of the” grand jury.

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Graham’s lawyers on Wednesday asked May, an appointee of President Barack Obama, to block the senator’s testimony until his appeal is considered by the 11th Circuit.

“Senator Graham will suffer irreparable harm if forced to appear before his appeal concludes,” his team’s motion stated.

On Monday, May rejected Graham’s attempt to quash his subpoena, ruling that prosecutors had “shown extraordinary circumstances and a special need for Senator Graham’s testimony on issues relating to alleged attempts to influence or disrupt the lawful administration of Georgia’s 2022 elections.”

Graham’s attorneys had argued the senator, a close confidante of former President Donald Trump, was shielded from testifying due to several federal doctrines, including the Constitution’s “Speech or Debate” clause and sovereign immunity.

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Prosecutors are interested in questioning Graham about two phone calls he placed to Georgia Secretary of State Brad Raffensperger and his office in late 2020, in which the two parties discussed mail-in ballots and alleged election fraud. They also want to see how much the Republican’s efforts might have been coordinated with the Trump campaign.

Lawyers for Graham told May that the calls were protected from judicial branch scrutiny because they constituted legitimate legislative fact-finding. They 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.

May’s ruling earlier this week stated that there were several political topics about which Graham could be questioned. They include any potential coordination with the Trump campaign, attempts to “cajole” or “exhort” Georgia election officials to take certain actions and public statements Graham made to the press or outside of Congress about the 2020 elections.

The judge ruled Friday that delaying Graham’s testimony any longer — his subpoena became public on July 5 — would harm the public interest.

“The public interest is well-served when a lawful investigation aimed at uncovering the facts and circumstances of alleged attempts to disrupt or influence Georgia’s elections is allowed to proceed without unnecessary encumbrances,” May wrote. “Indeed, it is important that citizens maintain faith that there are mechanisms in place for investigating any such attempts to disrupt elections and, if necessary, to prosecute these crimes which, by their very nature, strike at the heart of a democratic system.”

Graham voted along with 98 of his Senate colleagues to confirm May to the federal bench in 2014.

The senator’s filing with the 11th Circuit noted that the DA’s office had initially agreed to postpone Graham’s grand jury testimony until his appeal was resolved but that prosecutors reported that they’d changed their minds after 4 a.m. on Friday.

Meanwhile, Fulton Superior Court Judge Robert McBurney on Thursday announced that he would hear a subpoena challenge from Gov. Brian Kemp on Aug. 25.

The Republican governor filed a motion to quash his subpoena earlier this week, detailing a breakdown in communications between his aides and the Fulton DA’s office. Kemp cited sovereign immunity, attorney-client and executive privilege and the upcoming November elections as reasons why his testimony should be blocked — or at least delayed until later in the year.

Staff writer Bill Rankin contributed to this article.