Graham Loses Appeals Court Bid to Block Subpoena in Trump Election Probe

U.S. Sen. Lindsey Graham (R-S.C.) speaks as Sen. Richard Blumenthal (D-Conn.) listens during a news conference at the U.S. Capitol in Washington, on Sept. 29, 2022. (Alex Wong/Getty Images)

A federal appeals court has denied Sen. Lindsey Graham’s (R-S.C.) request to block a subpoena for his testimony before a special grand jury in Georgia in a probe into possible unlawful interference in the 2020 election.

The three-judge panel from the 11th U.S. Circuit Court of Appeals did, however, agree with a lower court ruling to restrict the scope of questions to certain topics.

In a partial victory, Graham can’t be questioned about conduct related to any legislative fact-finding he was doing about whether to vote to certify the 2020 U.S. general election results.

Specifically, the Republican senator can’t be questioned over his “investigatory fact-finding on telephone calls to Georgia election officials” during the grand jury testimony.

“The Court finds that this area of inquiry falls under the protection of the Speech or Debate Clause, which prohibits questions on legislative activity,” Judge Leigh Martin May wrote in September (pdf).

Fulton County District Attorney Fani Willis, a Democrat who is fronting the probe, has sought to question Graham about phone calls made to Georgia Secretary of State Brad Raffensperger and his staff in the weeks after the 2020 election between former President Donald Trump and President Joe Biden.

In denying the motion to quash the subpoena entirely, the new federal appeals court ruling stated that Graham failed to demonstrate that he was likely to succeed on the merits of his appeal.

Certain Questions Allowed

The South Carolina senator tried to use the Speech and Debate clause to shield himself from the grand jury probe. The clause ensures congressmen can’t be questioned “in any other Place” about any speech or debate in either chamber of Congress.

However, the ruling stated that 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” fell outside of protected legislative activities.

As such, Graham may be questioned about any alleged efforts to encourage Raffensperger or others to “throw out ballots or otherwise alter Georgia’s election practices and procedures.”

Graham’s lawyers have previously argued that his testimony would “erode the constitutional balance of power and the ability of a Member of Congress to do their job.”

However, Willis has said that Graham “possesses unique knowledge concerning” what was said in the phone calls as well as “any communications between himself, others involved in the planning and execution of the telephone calls, the Trump Campaign, and other known and unknown individuals involved in the multi-state, coordinated efforts to influence the results of the November 2020 election in Georgia and elsewhere.”

The new ruling by the appeals court lifted the temporary hold it had placed on the subpoena while it was considering Graham’s case.