Judge says Lindsey Graham can be questioned about election activity
ATLANTA — In a setback for U.S. Sen. Lindsey Graham, R-S.C., a federal judge ruled Thursday that prosecutors can ask him about certain elements of his November 2020 phone calls with Georgia Secretary of State Brad Raffensperger. Raffensperger has said that in those calls, Graham suggested rejecting mail-in votes in the presidential election from counties with high rates of questionable signatures.
The order from U.S. District Judge Leigh Martin May must now be taken up for consideration by the 11th U.S. Circuit Court of Appeals. It is the latest twist in a protracted legal drama in which Graham has sought to avoid appearing before a special grand jury in Atlanta that is investigating efforts by Donald Trump and his allies to overturn Trump’s narrow loss in the state in 2020.
Graham’s phone calls to Raffensperger were followed, weeks later, by a call from Trump, who asked Raffensperger to “find” 11,780 votes to put him over the top.
Graham has argued that he should not have to comply at all with a subpoena to testify before the special grand jury. His lawyers raised issues of sovereign immunity and the fact that Graham is “a high-ranking government official.”
May rejected those arguments in a ruling in mid-august. But a week later, the appellate court asked the judge to determine whether limits should be applied to Graham’s testimony, based on the U.S. Constitution’s “speech or debate” clause, which protects lawmakers from being questioned about their legitimate legislative functions.
May’s order on Thursday included some good news for Graham. It shielded him from having to answer questions about those aspects of the phone calls that amounted to “legislative fact-finding” on his part.
But May rejected Graham’s argument that all questions about the calls should be barred.
Raffensperger, May wrote, “has stated publicly that he understood Senator Graham to be implying or otherwise suggesting that he (Secretary Raffensperger) should throw out ballots.”
She continued: “As the Court has previously stated, any such ‘cajoling,’ ‘exhorting,’ or pressuring of Secretary Raffensperger (or any other Georgia election officials) to throw out ballots or otherwise change Georgia’s election processes, including changing processes so as to alter the state’s results, is not protected legislative activity under the Speech or Debate Clause.”
May’s order will also allow questions about Graham’s “alleged communications and coordination with the Trump Campaign and its postelection efforts in Georgia, as well as into Senator Graham’s public statements related to Georgia’s 2020 elections.”
A spokesperson for Graham said in a statement Thursday, “We are pleased that the district court recognized that Senator Graham’s testimony is protected by the Speech or Debate Clause. He will continue to defend the institutional interests of the Senate and the Constitution before the Eleventh Circuit.”
Graham — a former critic of Trump’s who later became a fan, confidant and golfing partner of his — has maintained that he did nothing wrong by calling Raffensperger a few days after the election, a time when other allies of Trump’s were making wild and unfounded claims about foreign interference in the election and were trying unsuccessfully to erect legal roadblocks to stop the certification of the Georgia vote.
Graham’s lawyers have argued that Graham made the calls because he needed to “run down allegations of irregularities in Georgia” before he voted to certify that Joe Biden was the legitimate winner of the presidential election. They also said, among other things, that Graham was reviewing election-related issues in his role as chair of the Senate Judiciary Committee at the time.
The Georgia investigation is being led by Fulton County District Attorney Fani Willis, a Democrat who has said she was looking into the possibility of a broad, multidefendant racketeering or conspiracy case. At least 18 people have been identified as targets of the inquiry, meaning they could eventually be charged.
Graham has put together a high-powered legal team, which includes Don Mcgahn II, who was a White House counsel under Trump. The legal team has said that prosecutors have indicated to them that Graham is a witness, not a target, of the investigation. But other people tangled up in the Georgia inquiry have said they were told that they were merely witnesses, only to later be told they were targets facing possible indictment. Some legal observers have said Graham runs a risk of potential criminal exposure in the matter.
Willis’ office has indicated in court documents that prosecutors wanted to learn more about Graham’s role in Trump’s post-election strategy and about whom he spoke to on the Trump campaign team before or after he called Raffensperger. This line of inquiry would track with an effort to build a multidefendant case that there was a broad criminal effort to violate Georgia election law, whether Graham ends up being one of those defendants or not.
“These are going to be very uncomfortable inquiries for the senator,” said Norman Eisen, a lawyer who served as special counsel to the House Judiciary Committee during the first Trump impeachment. Willis, he said, “is allowed questioning that is nonlegislative, that is very important to the investigation,” including, he noted, questions about whether Graham asked that ballots be thrown out, or that Georgia’s election procedures or tallies be changed.