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Supreme Court says Lindsey Graham must testify in grand jury Georgia election probe

The Supreme Court said Sen. Lindsey Graham, R-S.C. must testify before a Georgia grand jury.
Kent Nishimura
Los Angeles Times via Getty Images
The Supreme Court said Sen. Lindsey Graham, R-S.C. must testify before a Georgia grand jury.

The Supreme Court said Tuesday that Sen. Lindsey Graham, R-S.C., must testify before a grand jury in Georgia. He has been subpoenaed for questioning later this month about allegations that then President Donald Trump tried to interfere with Georgia's ballot count after the 2020 election.

Graham filed an emergency request to block the subpoena late last month. Under the Constitution's "Speech or Debate" clause, sitting senators may not be "questioned" about their legislative activity, which protects them from civil and criminal liability in certain circumstances. The purpose of the clause is to shield legislators from unwarranted intrusions on their duties by other branches of government.

Graham argued that the actions he took following the election, which included phone calls to Georgia election officials, were legislative in nature – related to his role as then-chair of the Senate Judiciary Committee. Therefore, he said, he cannot be called to testify about these actions, even just as a witness. He further argued that the principle of "sovereign immunity" shields him from subpoena.

After granting a brief administrative stay to give Georgia prosecutors time to respond, the court decided to leave intact an Eleventh Circuit order allowing subpoena to remain in effect. The appeals court panel, which included two Trump appointees, said in a unanimous opinion that the lower court had sufficiently limited the range of questions Graham can be asked, in a way that prevents violating his immunity as a senator.

Fulton County, Ga., prosecutors cannot question Graham about "fact-finding inquiries" related to certifying the Georgia election results. Those portions of his phone calls, the district court judge ruled, were part of an "informal legislative investigation." Graham can also contest the legitimacy of questions as they arise.

The prosecutors can, however, question Graham about "non-legislative activity." This includes "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."

Particularly at issue are phone calls Graham made to Georgia Secretary of State Brad Raffensperger in the weeks following the 2020 election. Raffensperger reportedat the time that Graham had contacted him to suggest that mail-in ballots from certain counties should not be counted.

Court's opinion issued with the order assumes that the limits placed by the district court and the court of appeals are sufficient. The court particularly noted that Graham can return to the District Court to challenge "should disputes arise regarding the application of the Speech or Debate Clause immunity to specific questions." For this reason, the opinion said, a stay is not necessary.

There were no noted dissents.

If anything, the protection provided to Graham may go beyond what was necessary under Supreme Court precedent. Historically, the Speech or Debate Clause has been applied only to actions explicitly authorized by a committee or occurring during a legislative session, and not to other, "political" activities. In refusing to grant a stay, the Eleventh Circuit said that there's no clear requirement for merely "informal" legislative fact-finding to be protected at all, as the district court said it should be when it declared those parts of the calls off limits. The clause does not extend so far as to make members of Congress "super-citizens," the Supreme Court said in 1972.

With Graham's avenues of relief exhausted, he will likely be required to testify on Nov. 17, as scheduled.

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Nina Totenberg is NPR's award-winning legal affairs correspondent. Her reports air regularly on NPR's critically acclaimed newsmagazines All Things Considered, Morning Edition, and Weekend Edition.
Jess Zalph