The order, which had no noted dissent, said that Graham could still challenge individual questions under the U.S. Constitution’s “Speech or Debate” clause, which shields members of Congress from being questioned about their official work.
The order also noted that the senator’s broader appeal was passed along to all nine justices for their consideration. But it could take weeks or months for the court to weigh in, which could be too late given Graham’s testimony date.
Fulton County prosecutors have said they are interested in questioning Graham about two phone calls the Trump ally placed to Georgia Secretary of State Brad Raffensperger in the weeks after the election. During those conversations, Graham discussed “reexamining certain absentee ballots cast in Georgia in order to explore the possibility of a more favorable outcome for former President Donald Trump,” according to his subpoena.
Graham has maintained he did nothing wrong and argued the calls are shielded from questioning because they constituted legitimate legislative fact-finding. At the time he was chairman of the Senate Judiciary Committee and was deciding whether to sign off on the Electoral College vote.
Prosecutors have argued that what Graham allegedly discussed with Raffensperger fell far outside of normal legislative activity and was fair game for questioning.
U.S. District Judge Leigh Martin May ruled in August that Graham could be questioned about matters that are 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. Prosecutors cannot ask about anything related to Graham’s official work in Congress, she ordered.
Graham’s office said in a statement on Tuesday that the Supreme Court “confirmed that the Constitution’s Speech or Debate Clause applies here” and affirmed the senator’s ability to challenge questions that run aground of the clause.
“The Senator’s legal team intends to engage with the District Attorney’s office on next steps to ensure respect for this constitutional immunity,” it said.
A spokesman for the Fulton County District Attorney’s Office declined to comment.
The order from the high court comes less than two weeks after a three-judge panel from the Atlanta-based 11th Circuit Court of Appeals ruled that Graham must testify.
It overruled a temporary stay Justice Clarence Thomas, who oversees the 11th Circuit, had placed on Graham’s testimony last week while the Supreme Court considered arguments from both sides.
Under the order, 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.
Steve Bright, a law professor from Yale and Georgetown law schools, said the Supreme Court’s ruling means Graham “must answer questions about anything that is not protected by the” Speech or Debate clause.
Outside of those privileges, he said, prosecutors “can certainly ask him about anything else that is relevant to their inquiry.”
Staff writer Bill Rankin contributed to this article.