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Sen. Lindsey Graham loses bid to delay testimony on 2020 election

South Carolina Republican has appealed an order for him to answer questions in a Georgia grand jury investigation

Sen. Lindsey Graham, R-S.C., waves to reporters in the Capitol last month.
Sen. Lindsey Graham, R-S.C., waves to reporters in the Capitol last month. (Tom Williams/CQ Roll Call file photo)

A federal appeals court cleared the way Thursday for Sen. Lindsey Graham to testify before a Georgia grand jury investigating efforts to overturn the state’s 2020 election results.

A three-judge panel of the U.S. Court of Appeals for the 11th Circuit ruled unanimously that Graham likely will lose in his appeal of a lower court decision that required him to answer questions related to his phone calls to Georgia election officials about those results.

The 11th Circuit declined Graham’s request to temporarily halt his testimony while his appeal of that order moves through the courts.

In a six-page order, the panel ruled that the South Carolina Republican failed to demonstrate that he would succeed in his claim that as a member of Congress he is protected from such testimony by the Speech or Debate Clause in the Constitution.

The grand jury first issued the subpoena for Graham and other allies of former President Donald Trump in July. The subpoena initially sought testimony from Graham about calls he had with Georgia Secretary of State Brad Raffensperger and his staff, as well as communications setting up those calls.

Graham later sued seeking to quash the subpoena, arguing his calls with Georgia election officials were an informal investigation about voting practices and protected by the Constitution.

A district court already narrowed the subpoena seeking Graham’s testimony, finding the grand jury could not question Graham about the calls themselves.

But Judge Leigh Martin May for the U.S. District Court for the Northern District of Georgia found Graham would have to answer at least some questions.

May’s ruling would allow the grand jury to ask questions about three areas: coordination with the Trump campaign, public statements he made about the 2020 election and any efforts he took to “cajole” or “exhort” state election officials into taking action.

Graham appealed to the 11th Circuit, asking the panel to delay his testimony while seeking a broader order to toss the subpoena entirely.

Thursday’s order from the 11th Circuit noted May “adopted a more protective view” of Graham’s protections than other courts had found. The order also noted that if Graham thinks investigators are asking questions that skirt too close to his protections, he can object at that time.

The 11th Circuit ruling came from Judge Charles Wilson, appointed by President Bill Clinton, and Judges Kevin Newsom and Britt Grant, appointed by President Donald Trump.

Legal experts have said there’s no previous case quite like Graham’s, meaning the outcome of his case could shape how and when members of Congress go into the courts to try to enforce the clause.

The Graham subpoena is one part of a broader criminal investigation by Fulton County District Attorney Fani Willis. That included subpoenas for Trump allies like Rudy Giuliani, John Eastman, Cleta Mitchell, Kenneth Chesebro, Jenna Ellis and Jacki Pick Deason.

That investigation is one of several probes, including the select committee investigating the Jan. 6, 2021, attack on the Capitol that is examining the effort by Trump to overturn his loss in the 2020 election.

A representative for Graham did not immediately return a request for comment Thursday afternoon.

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