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Graham asks Supreme Court to block his Georgia 2020 election testimony

South Carolina Republican was summoned for grand jury questioning on attempts to overturn results in that state

Sen. Lindsey O. Graham (R-S.C.) exits his office on Capitol Hill in Washington, on Tuesday, Sept. 13. (Tom Brenner for The Washington Post)

Sen. Lindsey O. Graham (R-S.C.) asked the Supreme Court on Friday to block his required appearance before a Georgia grand jury investigating possible attempts by President Donald Trump and his allies to disrupt the state’s 2020 presidential election.

A unanimous three-judge panel of the U.S. Court of Appeals for the 11th Circuit on Thursday turned down Graham’s attempt to block a subpoena from Fulton County District Attorney Fani Willis (D), in which the lawmaker claimed a sitting senator is shielded from testifying in such investigations.

A district court judge had said Graham must appear, but narrowed the range of questions that prosecutors can ask.

Without a stay of the lower courts’ rulings, Graham’s lawyer, Donald F. McGahn, told the Supreme Court, “Sen. Graham will suffer the precise injury he is appealing to prevent: being questioned in state court about his legislative activity and official acts.”

McGahn, a former counsel to Trump, asked Justice Clarence Thomas, the justice designated to hear emergency requests from the 11th Circuit, for at least a temporary stay. He said Graham could be required to testify “in less than a month.”

Thomas could act on the request on his own or refer the matter to the entire court. He called for a response from prosecutors by Thursday.

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The Atlanta grand jury investigating alleged 2020 presidential election interference has already heard testimony from several Trump lawyers, including Rudy Giuliani, John Eastman and Boris Epshteyn. Willis also wants to question former White House chief of staff Mark Meadows.

Graham would be asked to testify about calls he made to Georgia election officials soon after Trump lost the election to Joe Biden. Prosecutors say Graham has “unique knowledge” about the Trump campaign and the “multistate, coordinated efforts to influence the results” of the election in Georgia and elsewhere.

But Graham has said his actions were legitimate legislative activity protected by the Constitution’s “speech or debate clause.” The senator’s lawyers have said that they have been informed that Graham is a witness — and not a target — of the investigation.

Last month, a district court judge said prosecutors could not question Graham about portions of the calls that were legislative fact-finding. But the judge said Willis’s team could explore coordination with the Trump campaign in its post-election efforts in Georgia, public statements regarding the 2020 election and any efforts to “cajole” or “exhort” Georgia election officials.

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In its order Thursday, the 11th Circuit panel agreed with the lower court judge that those actions “could not qualify as legislative activities under any understanding of Supreme Court precedent.” Two of the three judges on the panel were nominated by Trump.

Graham may still assert his rights, the court noted, if there is a dispute about certain questions.

McGahn said the case should not proceed without the Supreme Court weighing in. “The district court’s refusal to quash or at least stay this impermissible questioning—and the Eleventh Circuit’s cursory acquiescence, while misquoting the ‘Speech or Debate Clause,’ failing to invoke or apply the standard for a stay, and without so much as mentioning sovereign immunity—cries out for review,” he wrote.

McGahn said the district attorney can continue the investigation without Graham by questioning “other witnesses who are not immunized by the United States Constitution.”

The Jan. 6 insurrection

The report: The Jan. 6 committee released its final report, marking the culmination of an 18-month investigation into the violent insurrection. Read The Post’s analysis about the committee’s new findings and conclusions.

The final hearing: The House committee investigating the attack on the U.S. Capitol held its final public meeting where members referred four criminal charges against former president Donald Trump and others to the Justice Department. Here’s what the criminal referrals mean.

The riot: On Jan. 6, 2021, a pro-Trump mob stormed the U.S. Capitol in an attempt to stop the certification of the 2020 election results. Five people died on that day or in the immediate aftermath, and 140 police officers were assaulted.

Inside the siege: During the rampage, rioters came perilously close to penetrating the inner sanctums of the building while lawmakers were still there, including former vice president Mike Pence. The Washington Post examined text messages, photos and videos to create a video timeline of what happened on Jan. 6. Here’s what we know about what Trump did on Jan. 6.

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