Graham’s lawyers had sought to throw out the subpoena from the Georgia grand jury, arguing that his calls to Georgia officials after the 2020 election were part of his official Senate duties and thus immune from the probe.
“The Court is unpersuaded by the breadth of Senator Graham’s argument and does not find that the Speech or Debate Clause completely prevents all questioning related to the calls,” U.S. District Judge Leigh Martin May wrote, referring to a constitutional provision that protects lawmakers from being questioned about legislative activity.
The ruling is unlikely to be the final word on the matter, and it will be reviewed by the U.S. Court of Appeals for the 11th Circuit and could be appealed to the U.S. Supreme Court.
Graham, a close Trump ally, has resisted the subpoena from Fulton County District Attorney Fani Willis (D) who wants to question the senator about calls he made to Georgia election officials soon after Trump lost the election to Joe Biden. Prosecutors say Graham has “unique knowledge” about the Trump campaign and the “multistate, coordinated efforts to influence the results” of the 2020 election in Georgia and elsewhere.
Graham says his actions are protected by the Constitution’s “speech or debate” clause. The senator’s lawyers have said in court filings that his calls were legitimate legislative activity and that they have been informed that Graham is a witness — not a target of the investigation.
In August, May rejected Graham’s request to delay his testimony and invalidate the subpoena, saying she did not accept his characterization of the phone calls “as only containing legitimate legislative factfinding.” The Supreme Court has made clear, she wrote, that political activity is not protected by the Constitution and that Graham could be questioned about certain aspects of the discussions.
To rule otherwise, she wrote, “would allow any sitting senator to shield all manner of potential criminal conduct occurring during a phone call merely by asserting the purpose of the call was legislative fact-finding — no matter whether the call subsequently took a different turn.”
The appeals court granted Graham a temporary reprieve last week when it ordered the District Court judge to take another look at the senator’s claim that he should be shielded from having to answer some questions and that the subpoena should be narrowed. The 11th Circuit said it would take up Graham’s appeal after the District Court’s review.
In her latest opinion, May acknowledged that portions of Graham’s calls to Georgia officials “may constitute legitimate legislative activity that falls within the protections of the Speech or Debate Clause.”
To the extent Graham’s questions related to his coming vote on whether to certify election results, “such questions are shielded from inquiry,” May wrote. “In other words, Senator Graham cannot be asked about the portions of the calls that were legislative fact-finding.”
But the judge left room for Willis’s team to question Graham about “any alleged efforts to ‘cajole’ or encourage” Georgia Secretary of State Brad Raffensperger (R) or other Georgia election officials “to throw out ballots or otherwise alter Georgia’s election practices and procedures.”
The grand jury, she wrote, can also ask about Graham’s “alleged communications and coordination with the Trump Campaign and its post-election efforts in Georgia, as well as into Senator Graham’s public statements related to Georgia’s 2020 elections.”
In a statement Thursday, Graham’s office said, “We are pleased that the district court recognized that Senator Graham’s testimony is protected by the Speech or Debate Clause” and that the senator would “continue to defend the institutional interests of the Senate and the Constitution before the Eleventh Circuit.”
A lawyer who filed an amicus brief supportive of Willis’s position also approved of the decision.
“The Constitution is not an absolute bar to a senator or anyone else testifying about non-legislative matters, and the judge outlined a list of those here,” said Norman Eisen, a counsel in the first impeachment of Trump.
Willis’s office declined to comment Thursday. Her team has interviewed more than half of its planned witnesses, including Trump’s former lawyer Rudy Giuliani. Willis is seeking testimony from Trump’s former chief of staff Mark Meadows and another former legal adviser, Sidney Powell, and has not ruled out calling Trump as a witness. A state court judge this week ordered Georgia Gov. Brian Kemp (R) to comply with a subpoena but delayed his testimony until after the November election.
On Wednesday, John Eastman, the conservative lawyer who advised Trump on scenarios for challenging the 2020 election results, appeared before the grand jury. Before his testimony, Eastman’s lawyers said they instructed their client to cite attorney-client privilege and his constitutional right to remain silent.
Once the special grand jury finishes its work, it will issue recommendations to Willis on whether to bring criminal charges. Willis has said she expects that to happen before the end of the year.
At issue in Graham’s subpoena dispute are calls the senator made to Raffensperger and his staff in which prosecutors said in court filings the senator asked about “reexamining certain absentee ballots” in the state to “explore the possibility of a more favorable outcome for former President Donald Trump.” Graham’s lawyers have rejected that characterization and said he was gathering information in advance of a vote to certify the election for Biden and to co-sponsor election-related legislation.
Graham was critical of the investigation this week, telling Fox News in an interview that prosecutors should not be allowed to call members of Congress as witnesses “when they are doing their job.” He warned that such questioning upsets the constitutional separation of powers and vowed to continue to fight the subpoena in court.