Supreme Court Rules That Lindsey Graham Must Testify in Georgia Inquiry

Patrick Swanson / October 31,2022
  • Understand Georgia’s Investigation of Election Interference

    WASHINGTON — The Supreme Court on Tuesday refused to block a Georgia grand jury subpoena seeking testimony from Senator Lindsey Graham, Republican of South Carolina, about his activities in the aftermath of the 2020 presidential election.

    The court’s order was one paragraph and did not note any dissents. It said that Mr. Graham had been afforded substantial protections by lower courts, which had ruled that he did not have to testify on subjects related to his official duties.

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

    But the Supreme Court’s order refused to block rulings by lower courts that permitted questioning on other topics, and it noted that Mr. Graham remained free to object to questions that implicated his legislative activities.


    Inquiries into efforts to subvert the 2020 presidential election have given rise to all sorts of litigation, but relatively little of it has reached the Supreme Court. In January, the court refused a request from former President Donald J. Trump to block the release of White House records concerning the Jan. 6 attack on the Capitol, effectively rejecting Mr. Trump’s claim of executive privilege and clearing the way for the House committee investigating the riot to start receiving the documents hours later.

    Only Justice Clarence Thomas noted a dissent in that case, a move that drew criticism after revelations about the role his wife, Virginia, had played in efforts to overturn the 2020 election.

    In the case involving Mr. Graham, Justice Thomas last week granted the senator an “administrative stay,” meant to give the court some breathing room to consider the case. There was no indication that Justice Thomas disagreed with the full court’s ruling on Tuesday.


    Understand Georgia’s Investigation of Election Interference

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    The potential charges. Experts say that Ms. Willis appears to be building a case that could target multiple defendants with charges of conspiracy to commit election fraud or racketeering-related charges for engaging in a coordinated scheme to undermine the election.

    The Supreme Court is also considering a request from Kelli Ward, the chairwoman of the Arizona Republican Party, to block a subpoena from the House committee for her phone records.

    In Mr. Graham’s case, Fani T. Willis, the district attorney in Fulton County, Ga., seeks to question the senator about calls he made to Georgia’s secretary of state, Brad Raffensperger, about allegations of voting irregularities in November 2020. Mr. Graham’s lawyers said that he was reviewing election-related issues in his role as chairman of the Senate Judiciary Committee.


    A spokesman for Ms. Willis declined to comment on the Supreme Court’s ruling.

    In a statement, Mr. Graham’s office said that he is partly shielded by the speech or debate clause and that he “may return” to the federal courts “if the district attorney tries to ask questions about his constitutionally protected activities.”

    Clark D. Cunningham, a law professor at Georgia State University, said that the Supreme Court’s order gives Mr. Graham “the opportunity to continue a strategy of delay by objecting to specific questions from the grand jury and seeking a court ruling.”

    However, he added, those objections may have to be hashed out in open court — a risk for the senator, Mr. Cunningham said, “because it may disclose to public view both the topics the grand jury is exploring and his unwillingness to answer such questions.”

    A special grand jury was empaneled in Fulton County in May, and it has been collecting records and hearing testimony from dozens of witnesses as it looks into whether Mr. Trump and his allies violated Georgia law in their efforts to overturn the former president’s November 2020 electoral loss in the state.

    Legal experts believe the case represents a serious threat to Mr. Trump, who was recorded on a phone call with Mr. Raffensperger in January 2021, telling him he wanted to “find” 11,780 votes — one vote more than he needed to declare victory.

    In recent months, a number of high-profile allies of Mr. Trump have been waging battles in courtrooms around the nation, arguing that they should not have to participate. So far, their track record has been mixed.

    Mr. Graham was originally ordered to appear before the grand jury in late August. More recently, he received a subpoena ordering him to give testimony on Nov. 17, according to a document his lawyers have filed with the Supreme Court.


    Lower courts had shielded Mr. Graham from some potential questions, saying that matters related to his legislative responsibilities were protected by the Constitution’s “speech or debate” clause. “For any speech or debate in either house,” the clause says of senators and representatives, “they shall not be questioned in any other place.”

    But a unanimous three-judge panel of the U.S. Court of Appeals for the 11th Circuit, in Atlanta, ruled that Mr. Graham could be required to answer other questions from the grand jury.

    The panel, which included two judges appointed by Mr. Trump, drew a distinction between Mr. Graham’s activities in investigating supposed irregularities in the 2020 election and some of his other statements and conduct. Though the lower courts are divided over whether “an informal investigation by an individual legislator acting without committee authorization is ever protected legislative activity under the speech and debate clause,” the panel said, it would assume that the clause applied to such inquiries made by Mr. Graham.

    But other questions, the panel said, were fair game.

    The appeals court panel said it would not block questioning of Mr. Graham about “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.”

    Mr. Graham, represented by Donald F. McGahn II, who served as White House counsel in the Trump administration, asked the Supreme Court to intervene, telling the justices that all of Mr. Graham’s work activities were related to his legislative obligations and that the proposed questions were a “backdoor” attempt to examine them.

    Mr. McGahn wrote that after the phone calls to Mr. Raffensperger, Mr. Graham “relied on the information gained from the calls” to certify Joseph R. Biden Jr. “the legitimate president of the United States,” and to help sponsor legislation to amend federal elections law.

    Adam Liptak reported from Washington, and Richard Fausset from Atlanta.