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Judge rejects Sen. Lindsey Graham bid to avoid grand jury subpoena

Argument from South Carolina Republican hinges on protection the Constitution provides members of Congress for ‘Speech or Debate’

South Carolina Republican Sen. Lindsey Graham is seen during a Senate vote in the U.S. Capitol this month.
South Carolina Republican Sen. Lindsey Graham is seen during a Senate vote in the U.S. Capitol this month. (Tom Williams/CQ Roll Call)

A federal judge ruled Monday that South Carolina Republican Sen. Lindsey Graham must testify before a Georgia grand jury about former President Donald Trump’s efforts to overturn his 2020 electoral loss in the state.

Judge Leigh Martin May of the U.S. District Court for the Northern District of Georgia wrote that the Georgia district attorney showed “extraordinary circumstances” weighed in favor of Graham testifying before a special grand jury in Fulton County, Ga.

Graham had sought a ruling to quash last month’s subpoena, arguing the grand jury sought testimony about actions he took under the protection the Constitution provides for the “Speech or Debate” of members of Congress.

However, May ruled that the grand jury sought testimony from Graham that goes beyond anything that could fall under that protection, namely at least two telephone calls he had with Secretary of State Brad Raffensperger and Raffensperger’s staff.

“[T]he mere possibility that some lines of inquiry could implicate Senator Graham’s immunity under the Speech or Debate Clause does not justify quashing the subpoena in its entirety because there are considerable areas of inquiry which are clearly not legislative in nature,” May wrote.

An attorney for Graham could not be immediately reached for comment Monday. Graham could appeal the ruling.

Graham had argued the two calls at issue went to a legislative purpose that was relevant to him as the then-chair of the Senate Judiciary Committee, namely issues such as national standards for mail-in voting. Because they concerned potential legislation and oversight, Graham said the subpoena seeking his testimony should be quashed under the “Speech or Debate” clause.

May, an appointee of President Barack Obama, rejected that argument though, without finding whether the calls themselves would fall under the clause.

On top of that, even if those calls were protected under the clause, the grand jury still has the ability to ask questions at the edges of those protections, May wrote.

Courts “are not precluded from probing into the facts and circumstances of alleged legislative acts to determine what these acts actually are—that is, legislative or non-legislative—but courts are precluded from probing into motivations for such acts once it has been determined that they are, in fact, legislative,” May wrote.

The grand jury in Fulton County has been investigating potential interference with the state’s election after Trump lost in the state in 2020. The grand jury issued the subpoena for Graham’s testimony last month, saying it wanted to ask questions about the two calls as well as his communications with others about the calls.

Graham “questioned Secretary Raffensperger and his staff about 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 a certificate to secure an out-of-state witness.

Graham launched the effort to quash the subpoena in an Atlanta federal court last month.

The grand jury also issued subpoenas for a half-dozen Trump allies associated with his presidential campaign last month.

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