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Supreme Court clears path for Sen. Lindsey Graham testimony

South Carolina Republican had asked the justices to stop enforcement of a subpoena while he challenged it on 'Speech or Debate' rights

Sen. Lindsey Graham, R-S.C., is interviewed in the Russell Building in May. He had sought to block an appearance in a case regarding the 2020 election in Georgia.
Sen. Lindsey Graham, R-S.C., is interviewed in the Russell Building in May. He had sought to block an appearance in a case regarding the 2020 election in Georgia. (Tom Williams/CQ Roll Call file photo)

Sen. Lindsey Graham will be required to testify before a Georgia grand jury investigating the effort to overturn former President Donald Trump’s loss in the state after the Supreme Court declined to intervene Tuesday.

The brief order left in place a ruling from the U.S. Court of Appeals for the 11th Circuit that would allow the grand jury to proceed with limited questioning of Graham about calls he made related to the 2020 election. Prosecutors have said they plan to have Graham testify Nov. 17.

Graham has fought the subpoena for months, arguing it would infringe his constitutional protections against being asked about “Speech or Debate” as a member of Congress who also was the chairman of the Senate Judiciary Committee at the time.

The South Carolina Republican made an emergency request to the Supreme Court on Oct. 21 that sought to pause the enforcement of the subpoena as he appealed lower court orders.

The justices denied that in an unsigned one-page order Tuesday that had no noted dissents. It included one paragraph of explanation that noted that lower courts have already carved out protections for Graham from the subpoena.

“The lower courts assumed that the informal investigative fact-finding that Senator Graham assertedly engaged in constitutes legislative activity protected by the Speech or Debate Clause,” the justices wrote.

The order leaves in place the 11th Circuit order against Graham that found he had not met the high burden for a pause pending his appeal.

Justice Clarence Thomas had ordered a pause in the case — called an administrative stay — while Graham and Fulton County District Attorney Fani Willis argued over whether to pause the case pending a Supreme Court appeal.

In her filing last week, Willis argued that Graham had already successfully limited the subpoena’s breadth and any further delay could allow Graham to avoid testifying entirely.

The Supreme Court order, as in lower court orders in the challenge, noted that Graham could object to any questions once his testimony begins.

“The lower courts also made clear that Senator Graham may return to the District Court should disputes arise regarding the application of the Speech or Debate Clause immunity to specific questions,” Tuesday’s Supreme Court order said. “Accordingly, a stay or injunction is not necessary to safeguard the Senator’s Speech or Debate Clause immunity.”

Graham now appears poised to have to testify before the grand jury empaneled by Willis earlier this year. Willis first issued a subpoena for Graham in July.

The grand jury sought Graham’s testimony about several calls he had with Georgia Secretary of State Brad Raffensperger and staff about the 2020 election and communications about those calls.

Graham then challenged the subpoena in federal court, arguing it violated his Speech or Debate protections. U.S. District Judge Leigh Martin May then limited the subpoena, allowing questions 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.

Legal experts said Graham’s case is unique among federal challenges to the Speech or Debate Clause and that it could break new ground on when members of Congress have to testify about their actions.

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