U.S. Senator Lindsey Graham (R-S.C.) looks on during a news conference calling to designate Russia as state sponsor of terrorism, on Capitol Hill, in Washington, U.S., September 14, 2022.
Tom Brenner | Reuters
A federal appeals court panel on Thursday unanimously rejected a request by Sen. Lindsey Graham to block a subpoena for his testimony before a Georgia grand jury investigating former President Donald Trump for possible criminal interference in the 2020 presidential election.
Graham, R-S.C., had asked the 11th Circuit U.S. Court of Appeals to stay an order compelling his testimony issued by a federal district judge in Georgia pending his appeal of that decision.
Among other things, a prosecutor presenting evidence to the Fulton County grand jury wants to question Graham about a phone call he had with Georgia’s top election official and talks he had with the Trump campaign on the heels of Election Day 2020, when Trump and his allies were trying to overturn his loss in that state to President Joe Biden.
“Senator Graham has failed to demonstrate that he is likely to succeed on the merits of his appeal,” the 11th Circuit panel said in its ruling Thursday.
Graham is now expected to ask the Supreme Court to block the subpoena. His lawyers have publicly said they would do so if they lost at the 11th Circuit.
Graham, an ally of Trump, argued that the subpoena seeking his testimony violated the speech and debate clause of the U.S. Constitution, which protects members of Congress from legal risk from their comments related to legislative business. His lawyers claim his call to Georgia Secretary of State Brad Raffensperger was part of a legislative inquiry.
But the 11th Circuit dismissed that argument, saying that “Graham has failed to demonstrate that this approach will violate his rights under the Speech and Debate Clause.”
“Even assuming that the Clause protects informal legislative investigations, the district court’s approach ensures that Senator Graham will not be questioned about such investigations,” the appeals court said.
The panel noted that the federal judge who ruled Graham would have to testify pursuant to the subpoena had also said that a prosecutor could not question the senator about portions of the call that would qualify as legislative activity.
“As the court determined, there is significant dispute about whether his phone calls with Georgia election officials were legislative investigations at all,” the appeals court ruling said.
It said the federal judge had “enabled a process through which that dispute can be resolved.”