Trump probe: Lindsey Graham plans to fight Fulton subpoena

DA’s office says it will seek to compel witness testimony

South Carolina U.S. Sen. Lindsey Graham, a top ally of former President Donald Trump, plans to fight a subpoena issued by a Fulton County special grand jury investigating potential criminal interference in Georgia’s 2020 elections.

In a statement issued Wednesday on the Republican’s behalf, Graham’s attorneys called the Fulton probe a “fishing expedition.” Lawyers Bart Daniel and Matt Austin indicated the senator did nothing wrong when he called Georgia Secretary of State Brad Raffensperger and his staff after the 2020 elections to ask about procedures for counting absentee ballots.

“As Chairman of the Senate Judiciary Committee, Senator Graham was well within his rights to discuss with state officials the processes and procedures around administering elections,” Daniel and Austin wrote. “Should it stand, the subpoena issued (Tuesday) would erode the constitutional balance of power and the ability of a Member of Congress to do their job.”

They concluded, “Senator Graham plans to go to court, challenge the subpoena, and expects to prevail.”

The “Speech and Debate” clause of the U.S. Constitution shields members of the House and Senate from being questioned in court about their legislative activities and the motivations behind them. But prosecutors are likely to argue that Graham was acting far outside of his official duties when he questioned the top elections official of another state.

Jeff DiSantis, a spokesman for the Fulton DA’s office, said that “should witnesses choose to challenge an order that they testify before the Special Purpose Grand Jury, the District Attorney will respond in the appropriate court to compel their appearance.”

Graham was one of seven people close to Trump, including attorney Rudy Giuliani, whose testimony was requested by the Fulton special grand jury on Tuesday. Graham stood out because he’s the only sitting member of Congress in the bunch.

In the summons, which was signed off by the Fulton Superior Court judge overseeing the investigation, grand jurors wrote that Graham was a “necessary and material witness” to the case.

The subpoena alleges that Graham separately called Raffensperger and his staff twice in the weeks following the November 2020 elections “about 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 said that he did nothing improper. His attorneys said Wednesday they were informed that the senator “is neither a subject nor target of the investigation, simply a witness.”

The lawyers also noted that Fulton District Attorney Fani Willis is sharing information with the select committee investigating the Jan. 6 attack on the Capitol. They suggested that anything the senator might say would be “immediately” handed over to the House panel, whose recent hearings about Trump have generated international attention.

Others subpoenaed this week may try to cite attorney-client privilege to avoid testifying since they were connected with the Trump campaign.

Witnesses who object to out-of-state subpoenas, which are known as “certificates of material witness,” are entitled to a hearing before a home state superior court judge where they can argue why their testimony isn’t needed or is otherwise protected. Fulton prosecutors would also appear to defend the summons.

“You can’t just show up and say ‘I’ve got attorney-client privilege or executive privilege.’ You’ve got to indicate why the privilege exists in this particular case,” said Pete Skandalakis, executive director of the Prosecuting Attorneys’ Council of Georgia. “And I’m sure that the question will be posed to DA Willis’s attorneys is why doesn’t the privilege apply in this case? What is so different about this?”

Last week, Willis and her deputies fought another subpoena challenge from two Georgia lawmakers.

Attorneys for Lt. Gov. Geoff Duncan and ex-Sen. William Ligon argued before Fulton Superior Court Judge Robert McBurney on Friday that the state Constitution shielded them from testifying about most matters of interest to the grand jury. The DA’s office said activities that sought to reverse certified election results or are otherwise illegal or extrajudicial are not protected by so-called legislative immunity.

In an order posted on Wednesday, McBurney determined that the state legislators were required to testify. But he said that prosecutors and jurors couldn’t ask them about anything they or their staffs said or wrote in relation to the legislative session. Ditto for communications among legislators as they prepared for the session, drafted legislation or official reports.

McBurney said the lawmakers could be questioned about their conversations with third parties, including private citizens, constituents or lobbyists, “even if arguably in connection with the performance of his legislative duties — if such an inquiry proves relevant to investigating possible third-party crime.”

“Inquiries remain limited to who and what, not why,” McBurney wrote.

Story so far:

The Fulton County special grand jury investigating Georgia’s 2020 elections issued seven subpoenas on Tuesday to close advisers of former President Donald Trump, including his attorney Rudy Giuliani and South Carolina U.S. Sen. Lindsey Graham. Attorneys for Graham said the Republican will fight his subpoena in court and defended his conduct in the weeks after the 2020 election.