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Judge: Graham must testify before Fulton grand jury

Aug. 15, 2022 Updated Mon., Aug. 15, 2022 at 10:26 p.m.

U.S. Sen. Lindsey Graham (R-S.C.) speaks on southern border security and illegal immigration, during a news conference at the U.S. Capitol in 2021 in Washington, D.C.  (Kevin Dietsch/Getty Images/TNS)
U.S. Sen. Lindsey Graham (R-S.C.) speaks on southern border security and illegal immigration, during a news conference at the U.S. Capitol in 2021 in Washington, D.C. (Kevin Dietsch/Getty Images/TNS)
By Tamar Hallerman The Atlanta Journal-Constitution The Atlanta Journal-Constitution

ATLANTA – A federal judge on Monday denied an attempt from South Carolina U.S. Sen. Lindsey Graham to quash his subpoena to testify before the Fulton County special grand jury investigating potential criminal interference in Georgia’s 2020 elections.

In a 22-page ruling, U.S. District Court Judge Leigh Martin May stated that Fulton County District Attorney Fani Willis “has shown extraordinary circumstances and a special need for Senator Graham’s testimony on issues relating to alleged attempts to influence or disrupt the lawful administration of Georgia’s 2022 elections.”

Graham’s attorneys had argued during a hearing last week that the Constitution’s “Speech or Debate” clause shielded the Republican from testifying about anything related to official legislative business.

That includes, they said, two phone calls that Graham placed to Georgia Secretary of State Brad Raffensperger and his office in late 2020 in which prosecutors are interested.

Graham and Raffensperger disagree about what was being implied during the conversations, which centered on mail-in ballots. The secretary believed that Graham was hinting that he throw out legally cast votes in counties that had the highest rates of mismatched signatures, which would ultimately aid Trump.

Graham has long insisted that he did not pressure Raffensperger and that he was simply trying to learn more about the state’s procedures. His lawyers said the calls fell squarely within the senator’s fact-finding responsibilities as the then-chairman of the Senate Judiciary Committee. They also argued the lawmaker was entitled to ask questions about election procedures because of his constitutional duty to certify the Electoral College results.

May rejected those arguments, ruling there are “considerable areas” of the grand jury’s inquiry related to Graham that are “political in nature rather than legislative” and thus not exempt from questioning.

Among them, she wrote, are statements about the 2020 election given outside of Congress, “efforts to ‘cajole’ or ‘exhort’ state election officials to change practices or alter election results” and any potential coordination with the Trump campaign or other third parties regarding Georgia’s electoral votes.

“The mere possibility that some lines of inquiry could implicate Senator Graham’s immunity under the Speech or Debate Clause does not justify quashing the subpoena in its entirety because there are considerable areas of inquiry which are clearly not legislative in nature,” May wrote.

Prosecutors recently said that Graham’s efforts might have been interconnected with the Trump campaign’s, which is one of the reasons why they wanted to question the longtime senator.

The ruling is a victory for Willis, who is guiding the grand jury investigation, since Graham is the highest-profile figure to publicly fight his subpoena. The DA’s office declined to comment on Monday.

The senator vowed to appeal May’s ruling to the federal 11th Circuit Court of Appeals. He said last week that “we will go as far as we need to go and do whatever needs to be done to make sure that people like me can do their jobs without fear of some county prosecutor coming after you.”

“Although the district court acknowledged that Speech or Debate may protect some of Senator Graham’s activities, she nevertheless ignored the constitutional text and binding Supreme Court precedent, so Senator Graham plans to appeal to the 11th Circuit,” Graham’s office said Monday.

Graham is slated to testify on Aug. 23.

May also rejected arguments from Graham’s lawyers that he should not be asked to testify because he’s a high-ranking government official. Case law outlines that in order to call such an official as a witness, a party must show “extraordinary circumstances” or a “special need” for doing so.

May wrote that those criteria had been met.

“Senator Graham has unique personal knowledge about the substance and circumstances of the phone calls with Georgia election officials, as well as the logistics of setting them up and his actions afterward,” she stated.

Her ruling sends the matter back to Fulton County Superior Court, the body overseeing the grand jury investigation. She said the grand jury would have to gather more evidence surrounding the Graham-Raffensperger calls before she could make a determination on whether specific questions could be deemed off-limits due to the Speech or Debate clause.

May and Fulton Judge Robert McBurney have in recent months rejected similar attempts to quash subpoenas from Georgia Congressman Jody Hice, Lt. Gov Geoff Duncan and nearly a dozen “alternate” GOP electors.

In a ruling on Hice’s motion to quash late month, May ordered that the Greensboro Republican appear before the special grand jury. But she said he could object to certain questions that could be privileged, and she directed lawyers for Hice and the DA’s office to negotiate a framework for queries that could be posed to the congressman.

May’s ruling kicked off what’s expected to be a busy week for the Fulton DA’s office.

Judges in New Mexico, Colorado and Texas are slated to hear arguments from three attorneys connected to the Trump campaign – John Eastman, Jenna Ellis and Jacki Pick Deason, respectively – who were subpoenaed by the Fulton grand jury last month.

Meanwhile, an attorney for Rudy Giuliani, former President Donald Trump’s personal lawyer, said his client is slated to testify before the special grand jury on Wednesday, as directed by McBurney.

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