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Prosecutor urges Supreme Court not to delay Graham testimony

District attorney in Georgia tells justices pausing the subpoena for the South Carolina Republican would interfere with the grand jury probe

Sen. Lindsey Graham, R-S.C., is seen in the Capitol in September.
Sen. Lindsey Graham, R-S.C., is seen in the Capitol in September. (Tom Williams/CQ Roll Call file photo)

A Georgia prosecutor urged the Supreme Court on Thursday to force Sen. Lindsey Graham to testify before a grand jury investigating the effort to overturn the results of the 2020 election in the state.

Fani Willis, the district attorney of Fulton County, told the court in a filing that an appeals court had correctly decided that the South Carolina Republican could not duck all questions about his calls to state election officials because of his status as a member of Congress.

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 is still pending at the U.S. Court of Appeals for the 11th Circuit.

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

Willis argued in the filing Thursday that a Supreme Court decision to pause the subpoena while Graham fights in in court — called a stay — would interfere with the grand jury’s ongoing investigation. The grand jury is empaneled until April 2023.

“A stay would create the possibility, or perhaps the certainty, that the Grand Jury would either have to pursue an extension of its term indefinitely to await the testimony of a single witness or issue a report without receiving any testimony or information from the Senator at all,” the filing states.

Willis convened the grand jury to investigate former President Donald Trump’s effort to overturn his loss in the state in the 2020 election. Graham has said in court filings he is a witness and not a target of the probe.

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

Protections questioned

Willis also argued that the lower courts had already narrowed the questions Graham could be asked because of the Speech or Debate clause, and ruled that Graham’s requested stay would interfere with the probe.

“Despite Senator Graham’s attempts to portray himself and the future of the Speech or Debate Clause as imperiled by the prospect of his questioning,” Willis wrote in the brief, he faces an uphill battle to avoid testifying.

“Senator Graham cites factual conclusions which the record does not support in order to advance arguments without a basis in prior decisions of this Court, seeking protection for activities which the Speech or Debate Clause does not contemplate,” Willis wrote.

The filing also said the Supreme Court rarely grants a stay of a district court order while an appeal is pending, contrary to what Graham asserted in his emergency request. In fact, the burden Graham faced is “as heavy as it is possible for it to be,” the prosecutor’s brief states.

Graham filed the request last week, arguing the justices had to step in or he would lose his Speech or Debate protections.

Graham argued before the Supreme Court and lower courts that his calls to Georgia officials were part of an informal investigation into voting practices in the 2020 election and he could not be questioned about them.

Justice Clarence Thomas granted that request Monday morning, allowing Willis until Thursday to respond. Thomas acted on his own as the justice who handles emergency requests out of the 11th Circuit.

In a statement about his Supreme Court request, Graham said the case endangered constitutional protections for lawmakers more broadly.

“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.”

Legal experts have said there is no case quite like Graham’s, which could break new ground about when members of Congress have to answer questions under oath about their actions.

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