Appeals court delays Graham testimony in Georgia probe

Senator is challenging subpoena for his testimony about two calls he made to the Georgia secretary of state and his staff in 2020

South Carolina GOP Sen. Lindsey Graham is challenging a subpoena for his testimony about two calls he made to Georgia Secretary of State Brad Raffensperger and Raffensperger’s staff in 2020 about the presidential election. (Tom Williams/CQ Roll Call)
South Carolina GOP Sen. Lindsey Graham is challenging a subpoena for his testimony about two calls he made to Georgia Secretary of State Brad Raffensperger and Raffensperger’s staff in 2020 about the presidential election. (Tom Williams/CQ Roll Call)
Posted August 22, 2022 at 12:46pm

A federal appeals court over the weekend gave South Carolina Sen. Lindsey Graham a brief reprieve from testifying in a Georgia grand jury probe into former president Donald Trump’s effort to overturn his 2020 election loss in the state.

An 11th Circuit panel on Sunday stayed federal trial Judge Leigh Martin May’s prior ruling that Graham, a Republican, would have to testify in the investigation.

Graham had challenged the subpoena for his testimony about two calls he made to Georgia Secretary of State Brad Raffensperger and Raffensperger’s staff in 2020, arguing that testifying would violate the constitutional protections for members of Congress engaging in “speech or debate.”

The weekend order delays Graham’s scheduled Tuesday appearance before a grand jury and follows a month of legal wrangling with Fulton County District Attorney Fani Willis, who is seeking testimony from Graham and more than a half a dozen Trump allies.

Following through on the appeals court order, May gave Graham until Wednesday and the Georgia district attorney until Aug. 29 to address the 11th Circuit decision. May wrote the parties will have to lay out specifics about Graham’s expected testimony.

“The arguments should address whether, and to what extent, certain alleged conduct (including specific lines of inquiry on the telephone calls) is shielded from questioning under the Speech or Debate Clause,” May wrote.

Graham called the investigation a “fishing expedition” and argued that forcing him to testify about the calls would cause “irreparable harm” to the protection the Constitution provides to sitting members of Congress.

In a brief arguing for the stay, Graham said his conversation with Georgia election officials asking about absentee ballots in the 2020 election fell under such protections.

He said those calls also factored into his later vote to certify electoral college votes holding President Joe Biden as the victor in the 2020 election as well as his backing of a bill to update the 1887 law that outlines procedures for casting and counting Electoral College votes in presidential elections.

“The facts uniformly point to Senator Graham’s calls being ‘legislative.’ The district court went astray in ordering probing into motives behind those facts,” Graham’s brief said.

Last week, May ruled against quashing the Georgia grand jury subpoena, writing the district attorney showed “extraordinary circumstances” weighed in favor of Graham testifying before the panel.

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.