UPDATE: Friday, Oct 21, 2022 · 9:09:19 PM +00:00
As predicted, Graham has asked the Supreme Court to block the subpoena.
Another court has ruled that Sen. Lindsey Graham (R-SC) will have to appear before a Georgia grand jury to testify about his involvement in Donald Trump’s efforts to overturn the 2020 election in that state. A three-judge panel at the U.S. Court of Appeals for the 11th Circuit denied Graham’s request to block a subpoena from Fulton County District Attorney Fani Willis, arguing that because he is a U.S. Senator, he should be protected from being included in the investigation.
Nope, said the judges. Again. The court did uphold a lower-court ruling that the range of questions prosecutors can ask Graham could be limited and said that, under those limits, “Senator Graham has failed to demonstrate that this approach will violate his rights under the Speech and Debate Clause.”
The court determined that the questions Willis seeks answers to won’t violate the clause, because they will be confined to Graham’s “communications and coordination with the Trump campaign regarding its post-election efforts in Georgia, public statements regarding the 2020 election, and efforts to ‘cajole’ or ‘exhort’ Georgia election officials.” That is not covered by the clause, which applies to lawmakers’ legislative activities, the judges determined.
Graham can appeal to the whole panel of judges on the 11th circuit, or to the U.S. Supreme Court. His lawyers say that they have been informed that he is considered a witness in the probe, and is not himself subject to investigation.
Willis is investigating alleged interference by Trump and his supporters in the 2020 election in Georgia. The grand jury in Atlanta has heard testimony from some of Trump’s lawyers already, and is also seeking testimony from Trump’s former chief of staff, Mark Meadows.
Graham was involved in the pressure campaign in Georgia, and made at least two phone calls to Secretary of State Brad Raffensperger or his staff and allegedly asked Raffensperger to throw out ballots and hand the state to Trump.
Graham has argued that, in making those calls, he “was engaged in quintessentially legislative factfinding—both to help him form election-related legislation, including in his role as then-Chair of the Judiciary Committee, and to help inform his vote to certify the election.” The problem for Graham is that the Judiciary Committee was not actually involved in investigating the election. The restrictions on questions that the lower court put on prosecutors, which the appeals court is upholding, would ensure that any probing into “legislative fact-finding” would be disallowed.
The court agreed with the lower court asking about Graham’s public statements about the election, his phone calls, and the effort to “cajole” or “exhort” state election officials “could not qualify as legislative activities under any understanding of Supreme Court precedent.” But it acknowledge that the Supreme Court had never considered whether a lawmaker “acting without committee authorization is ever protected legislative activity under the Speech and Debate Clause.”
It seems they’ll have to now. Graham has been through every other state and federal court in his going effort to avoid spilling the beans on Trump. He’s certainly going to appeal this as far as he can.
It will be an interesting prospect for the Court’s Trumpy majority. Thus far, they’ve declined to get involved in his election nonsense, and might be unwilling to do it again. This might not be the case in which they want to set precedent about what senators can and can’t do with their Speech and Debate clause protections.
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