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Graham seeks delay from Supreme Court on Georgia testimony

The South Carolina Republican framed the request as a broader defense of constitutional 'Speech or Debate' protections for members of Congress

Repubican Sen. Lindsey Graham is asking the Supreme Court to block a subpoena from a Georgia grand jury investigating efforts to overturn the 2020 presidential election in that state.
Repubican Sen. Lindsey Graham is asking the Supreme Court to block a subpoena from a Georgia grand jury investigating efforts to overturn the 2020 presidential election in that state. (Tom Williams/CQ Roll Call file photo)

Sen. Lindsey Graham asked the Supreme Court on Friday to temporarily block a subpoena from a Georgia grand jury investigating efforts to overturn former President Donald Trump’s loss in the state in 2020.

An appellate court cleared the way for state prosecutors to call the South Carolina Republican to testify Thursday in the criminal probe. Graham argued that unless the Supreme Court steps in now, he will lose a key constitutional protection provided to members of Congress.

In a statement about the filing, Graham framed the appeal as a broader defense of those “Speech or Debate” protections that prevent lawmakers from being questioned about their official actions.

“If left to stand, the recent ruling would significantly impact the ability of senators to gather information in connection with doing their job,” Graham’s statement said. “In this case, certifying a contested presidential election.”

The application asks the justices for an emergency order that halts him from having to testify while he pursues an appeal of a lower court order to appear. And, if necessary, it seeks to stop the Georgia grand jury from questioning Graham until final resolution of his appeal.

Graham noted in his Supreme Court appeal that he is not the target of the probe, which is a criminal investigation by Fulton County District Attorney Fani Willis. That investigation has also sought testimony from Trump allies such as Rudy Giuliani, John Eastman and Cleta Mitchell.

Graham argued in the filing that the investigators who issued the subpoena intend to ask questions that “undisputedly center on Senator Graham’s official acts,” and violate those “Speech or Debate” protections.

The appeal comes a day after a three-judge panel of the U.S. Court of Appeals for the 11th Circuit unanimously rejected Graham’s effort to delay his testimony while pursuing a broader appeal. The panel included two Trump appointees.

There, the panel ruled Graham had not shown he would likely succeed in his effort to quash the subpoena.

Through the courts

In July, the special grand jury first issued the subpoenas seeking testimony from Graham and other Trump allies. The subpoena for Graham sought his testimony about calls he had with Georgia Secretary of State Brad Raffensperger and his staff as well as communications about those calls.

Graham challenged the subpoena in federal court, arguing it trampled on his constitutional protections as a member of Congress. Judge Leigh Martin May for the U.S. District Court agreed partially, but said he would still have to answer some questions.

May’s ruling would allow investigators to ask about three areas: coordination with the Trump campaign, public statements Graham made about the 2020 election, and any efforts Graham took to “cajole or “exhort” Georgia officials to take specific actions.

Graham then appealed the case as a whole to the 11th Circuit, and asked for a temporary pause on the subpoena while the case played out. The 11th Circuit denied that request Thursday.

Thursday’s order noted May “adopted a more protective view” of Graham’s protections than other courts had. The order also said that if Graham thinks investigators’ questions stray too closely to his protections, he can object then.

Legal experts have said there’s no case quite like Graham’s, which could break new ground on what lawmakers can be questioned about in the courts.