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Supreme Court puts temporary hold on Graham grand jury election testimony

President Donald Trump with Sen. Lindsey O. Graham (R-S.C.) on Nov. 6, 2019. (Jonathan Ernst/Reuters)
5 min

Justice Clarence Thomas on Monday put a temporary hold on an order that Sen. Lindsey O. Graham (R-S.C.) appear before a Georgia grand jury investigating possible attempts by President Donald Trump and his allies to disrupt the state’s 2020 presidential election.

Thomas’s brief order appears to be an attempt to maintain the status quo as Graham’s petition to the Supreme Court advances. Prosecutors face a Thursday deadline for responding to Graham’s request, which usually means the full court will consider the issue.

Last week, a unanimous three-judge panel of the U.S. Court of Appeals for the 11th Circuit turned down an attempt by Graham 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 in a petition filed Friday afternoon, “Sen. Graham will suffer the precise injury he is appealing to prevent: being questioned in state court about his legislative activity and official acts.”

Graham’s petition went to Thomas because he is the justice designated to hear emergency requests from the 11th Circuit. Democrats have demanded Thomas recuse himself from any cases related to the 2020 election because of the activities of his wife, Virginia “Ginni” Thomas, who actively protested the outcome. But justices make their own recusal decisions.

Virginia Thomas urged Mark Meadows to pursue efforts to challenge election results

Thomas’s one-sentence order said the lower court’s ruling in the Graham case “is hereby stayed pending further order of the undersigned or of the Court.” Such language usually indicates that the court does not want the action being challenged to occur before justices can act.

Willis said in a previous interview with The Washington Post that the grand jury will not be active until after the midterm elections on Nov. 8. A subpoena for Graham’s testimony orders him to appear on Nov. 17.

Jeff DiSantis, a spokesman for Willis, said “we will decline to comment” on the Thomas order, pending the filing of the prosecutors’ response to the Supreme Court.

The Atlanta grand jury investigating alleged 2020 presidential election interference has 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 in — 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.

The status of key investigations involving Donald Trump

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.

Some have questioned whether Ginni Thomas’s activities have meant Thomas should recuse himself in 2020 election cases lest he appear impartial.

Ginni Thomas repeatedly texted with Meadows, urging him to take steps to reverse the election Biden won, at a time when Trump’s allies were promising to take their efforts to the Supreme Court. In one message, she asked Meadows to “help this great president stand firm” and to “listen to Rush. Mark Steyn, Bongino, Cleta,” appearing to refer to conservative commentators Rush Limbaugh, Mark Steyn and Dan Bongino, as well as lawyer Cleta Mitchell.

Mitchell was on the phone call with Trump when he called Georgia Secretary of State Brad Raffensperger on Jan. 2 to urge him to “find” enough votes to overturn Biden’s victory in the key state.

Ginni Thomas told the House committee investigating the Jan. 6 attack on the U.S. Capitol last month that she did not discuss her post-election activities with her husband and that the justice did not discuss his work at the court with her. “It is laughable for anyone who knows my husband to think I could influence his jurisprudence — the man is independent and stubborn, with strong character traits of independence and integrity,” she said in an opening statement provided to the committee.

Thomas has declined to respond to recusal questions posed to the court’s spokeswoman.

Tom Hamburger contributed to this report.