Graham’s Supreme Court appeal has won him a temporary reprieve from testifying. But it won’t produce the outcome he’s seeking, and may well backfire on him.
Graham’s Supreme Court appeal has won him a temporary reprieve from testifying. But it won’t produce the outcome he’s seeking, and may well backfire on him.
O n Monday, U.S. Supreme Court justice Clarence Thomas issued a temporary stay, delaying the testimony of Senator Lindsey Graham (R., S.C.) before the special grand jury in Fulton County, Ga., which is investigating efforts by the Trump campaign and its allies to reverse the result of the 2020 presidential election in the Peach State. (President Biden won Georgia by just 11,779 votes — less than one-quarter of 1 percent of the roughly 5 million votes cast).
This will be only a temporary reprieve. Fulton County prosecutors have been directed to respond by Thursday. Thereafter, the Supreme Court is likely to order Senator Graham to honor the subpoena, perhaps with some limitations on what he may be asked.
The litigation to block the subpoena has been going on for months. As I’ve previously detailed, in connection with Rudy Giuliani and with the alternative slate of Trump electors who agreed to serve if Trump’s lawyers were successful in getting Biden’s popular-vote win in the state overturned, the Fulton County investigation is being conducted by District Attorney Fani Willis, a partisan Democrat. She has publicly indicated that she may bring racketeering charges in the case.
Senator Graham’s lawyers say prosecutors have indicated that he is neither a target (i.e., someone likely to be charged) nor a subject (i.e., someone whose conduct is being assessed with an eye toward possible charges) of the investigation. That, however, is cold comfort: Being told one is currently regarded only as a witness (i.e., someone with no currently foreseeable criminal exposure) is no assurance that one’s status will not change; Willis, moreover, has reportedly represented to others in the investigation that they were seen solely as witnesses, only to inform them, after they cooperated, that they had suddenly become targets.
Willis clearly wants to grill Graham on his post-election phone calls with Brad Raffensperger, Georgia’s secretary of state. Raffensperger has indicated that in their discussions, the senator pressed him on whether he had authority to invalidate absentee ballots from counties that had higher-than-normal rates of non-matching signatures. (To verify the validity of absentee ballots, county election officials compare the signature on the mailed-in envelope containing the ballot to the signature the county has on file for a given voter.)
In a subsequent interview with the Washington Post, Raffensperger — who was coming under great pressure from Trump-allied Republicans at the time, and credibly claimed to have received death threats — said he was “stunned” by what he took to be Graham’s “suggest[ion] that he find a way to toss legally cast ballots.” Raffensperger observed that “it sure looked like [Graham] was wanting to go down that road,” even though Georgia law bars state officials from intervening in a county’s administration of election tabulations absent a court ruling.
For his part, the South Carolina senator has acknowledged that he was seeking to understand Georgia’s legal requirements for signature-matching. He described as “ridiculous,” however, the implication that he was pressuring Raffensperger to throw out legally valid ballots.
In her high-profile investigation, Willis has issued subpoenas to Trump supporters who became notorious in the effort to reverse the election results in various states — e.g., Giuliani in New York, John Eastman in New Mexico, and Sidney Powell in Texas.
Graham has sought to quash Willis’s subpoena under the Constitution’s speech-or-debate clause (Article I, Section 6), which says that “for any Speech or Debate in either House” of Congress, federal senators and representatives “shall not be questioned in any other Place.”
Obviously, Graham’s statements in a conversation with Raffensperger were not part of a congressional speech or debate. Yet the Supreme Court has extended the clause to cover any “inquiry into acts that occur in the regular course of the legislative process and into the motivation for those acts.” As is often said, the question comes down to whether what the federal lawmaker was doing can fairly be deemed a “legislative act.”
Graham contends that he was not merely a Trump supporter cajoling Raffensperger; he was a member of Congress conducting a fact-finding investigation in anticipation of the January 6 joint session. By federal law, members of both congressional chambers are called on to witness the counting of state-certified electoral votes, and may lodge objections if they have legitimate grounds to question the state-certified votes. Graham did not object to the counting of votes from Georgia or any other state that certified President Biden as the victor.
The litigation over the Fulton County subpoena has been through several rounds. A federal district judge in Georgia, Obama-appointee Leigh Martin May, initially ordered Graham to testify. After Graham appealed, the Eleventh Circuit remanded the matter to Judge May with instructions that she consider whether any anticipated areas of inquiry might trigger a valid speech-or-debate-clause objection. May then issued a ruling that seems to have been more favorable to Graham than the circuit might have been.
As the three-judge circuit panel explained last week in a ruling requiring Graham to testify, the Supreme Court has held that the speech-or-debate clause covers statements made by individual members of congressional committees if they occur during fact-finding in connection with an investigation formally authorized by those committees. Committees are presumed to be acting on behalf of Congress. The high Court, however, has not grappled with the question of “an informal investigation by an individual legislator acting without committee authorization,” and the lower courts have been divided on the matter.
The Eleventh Circuit appeared skeptical about whether the speech-or-debate clause covers such a situation, and it noted that the clause does not cover such activities as “cajoling” executive officials and speeches given outside of Congress. Nevertheless, it observed, Judge May “adopted the more protective view, that the Speech and Debate Clause can shield informal legislative investigations.”
As the circuit summarized her ruling, May held that Graham could refuse to answer questions about his conversations with Raffensperger to the extent that those questions concerned his deliberations over whether “to certify the results of the 2020 election.” She further found that, in the words of the circuit, there were three relevant “topics” of prosecutorial inquiry that did not implicate legislative acts — namely, Graham’s “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” — and that Graham would have to answer questions about those topics.
The circuit concluded that Judge May had been more than fair to Graham. To the extent that prosecutors ask a question Graham perceives to implicate his arguably legitimate inquiry into the Georgia electoral process, the panel said he could object, and Judge May could then consider the matter. Meantime, the panel agreed that the three “topics” of inquiry described by May as proper clearly do not implicate the speech-or-debate clause, and that Graham would thus have to answer questions about them.
Senator Graham decided to appeal the panel’s unanimous decision to Justice Thomas, who handles emergency appeals from the Eleventh Circuit. The justice issued an administrative stay and has directed District Attorney Willis’s office to respond by close-of-business on Thursday. The likelihood is that Justice Thomas will refer the matter to the full Court for decision, rather than deciding it on his own.
Senator Graham’s appeal to the Supreme Court seems imprudent to me. I believe there is a good chance the Court will rule, consistent with the speech-or-debate clause’s original public meaning, that it was not understood to cover a non-committee inquiry by a single senator, not previously authorized by Congress, into the presidential electoral process of a state that is not the senator’s own state. Certainly, the Court is not going to rule, as Graham seems to hope, that as a high federal official, he has immunity from testifying before a state grand jury.
To my mind, the senator should have acceded to the Eleventh Circuit’s ruling. His Supreme Court appeal is not going to make this situation better for him, and may make it worse.