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Supreme Court, for now, pauses Sen. Lindsey Graham subpoena

Order from Justice Clarence Thomas is temporary and not uncommon as the justices consider an emergency request

Sen. Lindsey Graham, R-S.C., holds a news conference in the Capitol in 2021.
Sen. Lindsey Graham, R-S.C., holds a news conference in the Capitol in 2021. (Bill Clark/CQ Roll Call)

The Supreme Court on Monday paused a lower court order to have South Carolina Republican Sen. Lindsey Graham testify before a Georgia grand jury investigating efforts to overturn the result of the 2020 presidential election in the state.

Monday’s administrative order, issued by Justice Clarence Thomas, followed Graham’s emergency request Friday for the high court to step in. The court has given Fulton County, Georgia, prosecutors until Thursday to respond to the request.

The Supreme Court order is temporary and not uncommon in such a situation, meant to ensure any court action stops while a request is pending before the justices. Thomas acted on his own as the justice who handles emergency cases from the U.S. Court of Appeals for the 11th Circuit.

Such an order is not predictive of how the full Supreme Court — or even Thomas — will vote on Graham’s emergency request, Steve Vladeck, a University of Texas law professor who closely watches the Supreme Court’s emergency docket, said.

There are lots of recent examples of a justice issuing such a temporary ruling in a case from a circuit, and then the full court declined to make it permanent, Vladeck said.

“Folks will surely overreact anyway, but this isn’t a big deal — yet,” Vladeck tweeted.

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 courts and the extent of protections under the “Speech or Debate” clause of the Constitution.

Monday’s order prompted criticism from some liberal groups that noted Thomas did not recuse himself from a case that deals with former President Donald Trump’s efforts to overturn the results of the 2020 election.

Virginia “Ginni” Thomas appeared for a voluntary interview in September before the committee investigating the Jan. 6, 2021, attack on the Capitol, which sought information about her apparent involvement in that effort revealed by emails and texts.

In May, CNN published a trove of text messages between Ginni Thomas and former White House Chief of Staff Mark Meadows. In them, she urged Meadows to “Help this Great President Stand Firm” and referred to the election as a “heist” by Democrats.

“Clarence Thomas should not be involved in cases about efforts to overturn the election,” liberal advocacy group Demand Justice tweeted Monday after the Graham order. “This out of control Supreme Court must be reined in.”

Pending request

Graham has asked the high court to pause a court ruling that cleared the way for him to be called to testify before the grand jury, even though his appeal of the merits of that ruling still pending at the 11th Circuit.

Graham has argued that forcing him to testify would violate the constitutional protection given to sitting members of Congress, and he would lose those rights if forced to testify while his appeal was still moving through the court system.

The South Carolina Republican also framed the request as defending the protections of members of Congress more broadly.

The grand jury in Fulton County, Georgia, was convened by the local district attorney, Fani Willis, to investigate efforts to overturn President Joe Biden’s victory in the state.

The body issued the subpoena in July, seeking Graham’s testimony about calls he had with Georgia Secretary of State Brad Raffensperger and his staff as well as communications about those calls.

Graham later challenged the subpoena in federal court. Judge Leigh Martin May partially agreed, and said investigators could not ask about calls themselves if they pertained to Graham’s investigation of voting practices.

However she would have allowed investigators to ask about three issues: 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 that order to the 11th Circuit, and also asked the judges there for a temporary pause on the subpoena while the appeal played out.

Thursday, a panel of judges for the appellate court denied the request and noted May had adopted a “more protective view” of the constitutional protection.

The order also said that if Graham thinks investigators’ questions stray too closely to his protections, he can object then. Graham appealed that appellate court order Friday.

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