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Supreme Court clears way for Sen. Graham to testify in Ga. election probe

A district attorney in Georgia wants Graham to testify before a grand jury about calls he made to state election officials as Trump contested the 2020 results

Sen. Lindsey Graham (R-S.C.) at a press conference on Capitol Hill in Dec. 2021. (Jabin Botsford/The Washington Post)

The Supreme Court on Tuesday rejected a request from Sen. Lindsey O. Graham (R-S.C.) to spare him from testifying before a Georgia grand jury investigating efforts to overturn the election defeat of former president Donald Trump.

There were no noted dissents to the court’s short order.

Graham had claimed that his actions — he called Georgia election officials as Trump contested his 2020 loss to Joe Biden — were legitimate legislative activity protected by the Constitution’s “speech or debate clause” and that he should not be required to answer questions from a grand jury.

But Tuesday’s unsigned order said lower courts already had protected him from questioning that related to his official duties.

Read the Supreme Court order: Graham, Senator v. Fulton County Spec. Purpose Grand Jury

“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 … and they held that Senator Graham may not be questioned about such activities,” the order said.

“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. Accordingly, a stay or injunction is not necessary to safeguard the Senator’s Speech or Debate Clause immunity.”

The action dissolved a temporary stay that had been granted by Justice Clarence Thomas while the full court considered the issue.

The Fulton County District Attorney’s Office, which is conducting the investigation, declined to comment on the decision.

Graham’s office issued a statement describing Tuesday’s ruling as confirming “that the constitution’s Speech or Debate clause applies here.” The statement noted that the justices ruled the senator may return to the lower court if he has concerns about questions from the prosecution. Graham’s “legal team intends to engage with the District Attorney’s office on next steps to ensure respect for constitutional immunity,” the statement said.

The Fulton County special grand jury investigating alleged 2020 presidential election interference by Trump and his allies has called for the senator to testify by Nov. 17. Jurors already have heard testimony from several Trump lawyers, including Rudy Giuliani, John Eastman and Boris Epshteyn. A judge has also ruled that former White House chief of staff Mark Meadows must testify.

Georgia 2020 election inquiry may lead to prison sentences, prosecutor says

The district attorney, Fani Willis (D), wants to question Graham about his calls to Georgia election officials soon after Trump lost to 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.

The senator’s lawyers have said that they have been informed that Graham is a witness in — and not a target of — the probe. Graham’s lawyer Donald F. McGahn told the Supreme Court that Graham is immunized by the Constitution and that without a stay, “Sen. Graham will suffer the precise injury he is appealing to prevent: being questioned in state court about his legislative activity and official acts.”

Last month, a district court judge said prosecutors could not question Graham about portions of his 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.

A three-judge panel of the U.S. Court of Appeals for the 11th Circuit agreed that those actions “could not qualify as legislative activities under any understanding of Supreme Court precedent.” Two of the judges were nominated by Trump.

Willis had warned the Supreme Court that if Graham is allowed to avoid testimony entirely, the grand jury “will be foreclosed indefinitely from pursuing unique information, analyzing any resulting evidence, or using the Senator’s testimony to explore additional routes of valid inquiry.” It is scheduled to conclude its work by April.

Willis’s probe began last year after reports that Trump and his allies had placed calls to Georgia officials seeking to overturn state election results. It expanded to include efforts to send the names of Trump electors in multiple states to Washington in hopes of delaying or halting the certification of a Biden electoral victory.

‘I just want to find 11,780 votes’: In extraordinary hour-long call, Trump pressures Georgia secretary of state to recalculate the vote in his favor

Willis has said she wants to ask the senator about conversations he had with Georgia Secretary of State Brad Raffensperger (R), among other topics. Trump personally urged Raffensperger to “find” enough votes to overturn his defeat in the state, where the margin for Biden’s win was fewer than 12,000 ballots. Trump insisted the election there was marred by extensive fraud, but multiple legal inquiries determined there was no evidence of that.

At issue in Graham’s subpoena dispute are calls the senator made to Raffensperger and his staff in which prosecutors said the senator asked about “reexamining certain absentee ballots” in the state to “explore the possibility of a more favorable outcome” for Trump.

In an interview last year, Raffensperger told The Washington Post that Graham on one call appeared to be asking him to find a way to set aside legally cast ballots. Graham and his lawyers have strenuously rejected that characterization, saying the senator was gathering information in advance of a vote to certify the election for Biden and to co-sponsor election-related legislation.

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