Sen. Lindsey Graham is scheduled to appear before the Fulton County grand jury on November 17, more than four months after the date he was originally ordered to appear. A couple weeks ago, when the U.S. Supreme Court decided not to grant Graham’s request for a stay or injunction, some commenters on Daily Kos suggested that the Court’s conservatives were just winking to Graham that he really has nothing to worry about, since the Supreme Court order acknowledged that he can still return to the District Court if prosecutors pose a question which Graham wants to argue he’s immune from answering.
That reminds me of the old “It’s good news for John McCain” quip. Let’s review how we got to this point:
◼ Public statements by Georgia Secretary of State Brad Raffensperger suggest Graham played a role in Team Trump’s efforts to manipulate the 2020 Georgia election results, so Graham was issued a subpoena to appear before the Fulton County special purpose grand jury, which is “authorized to investigate any and all facts and circumstances relating directly or indirectly to possible attempts to disrupt the lawful administration of the 2020 elections in the State of Georgia.”
◼ Graham demanded that the subpoena be quashed, arguing that everything he did was part of his fact-finding job as a member of Congress, and such legislative duties are protected from inquiry by the Speech or Debate Clause of the Constitution. He also asserted that he was exempt from testifying based on the notion of sovereign immunity, which protects government officials from being sued by citizens.
◼ District Court Judge Leigh Martin May disagreed with Graham’s sweeping invocation of the Speech and Debate Clause and noted Graham hadn’t provided any case law to back up his assertion that sovereign immunity would apply in this matter. She ruled he must appear for questioning.
◼ Graham appealed this ruling.
◼ The 11th Circuit Court of Appeals sent it back to the District Court, requesting the judge consider ordering the subpoena modified or partially quashed so that it would not violate the Speech or Debate clause.
◼ So then Judge May — a Democrat appointed by Barack Obama — issued a new ruling, accepting the 11th Circuit’s suggestion to partially quash subpoena:
After due consideration, the Court again declines to quash the subpoena in its entirety. As to the issue of partial quashal, the Court quashes the subpoena only as to questions about Senator Graham’s investigatory fact-finding on the telephone calls to Georgia election officials, including how such information related to his decision to certify the results of the 2020 presidential election. The Court finds that this area of inquiry falls under the protection of the Speech or Debate Clause, which prohibits questions on legislative activity. As to the other categories, the Court finds that they are not legislative, and the Speech or Debate Clause does not apply to them. As such, Senator Graham may be questioned about any alleged efforts to encourage Secretary Raffensperger or others to throw out ballots or otherwise alter Georgia’s election practices and procedures. Likewise, the grand jury may inquire into Senator Graham’s alleged communications and coordination with the Trump Campaign and its post-election efforts in Georgia, as well as into Senator Graham’s public statements related to Georgia’s 2020 elections.
◼ The 11th Circuit judges agreed with this decision, rejecting Graham’s demand to fully quash the subpoena, ruling that Graham must appear for questioning and that if he is asked a question that is actually covered by the Speech or Debate Clause, he may object to answering it at that time, but not beforehand.
◼ Graham appealed to the Supreme Court.
◼ The Supreme Court agreed with the 11th Circuit.
Clearly, Graham doesn’t want to be asked any questions under oath about whether he suggested to Georgia officials how to alter their election results to favor Trump. As Judge May wrote in her ruling:
Though Senator Graham maintains that these calls were comprised entirely of legislative fact finding relevant to his certification vote (and urges the Court to accept this conclusion on its face), the Court does not find that it can simply accept Senator Graham’s sweeping and conclusory characterizations of the calls and ignore other objective facts in the record that call Senator Graham’s characterizations into question. As noted above, and as discussed at length in the Court’s earlier orders, the very nature and substance of these calls has been a source of public debate and dispute among the calls’ participants. Indeed, as alluded to in both parties’ briefing, Secretary Raffensperger has stated publicly that he understood Senator Graham to be implying or otherwise suggesting that he (Secretary Raffensperger) should throw out ballots. 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. See Gravel, 408 U.S. at 625. Regardless of whether such conduct is criminal, it is, at minimum, “in no wise related to the due functioning of the legislative process.” United States v. Brewster, 408 U.S. 501, 525 (1972). Accordingly, Senator Graham may face targeted and specific questioning regarding this alleged activity, which is to say he may, at minimum, be asked whether he in fact implied, suggested, or otherwise indicated that Secretary Raffensperger (or other Georgia election officials) throw out ballots or otherwise alter their election procedures (including in ways that would alter election results). This is not legislative fact-finding on its face.
Graham also doesn’t want to face questions under oath about his post-election contacts with Team Trump, or his public statements. In her 23-page ruling, Judge May made it abundantly clear why he has no blanket protection by the Speech or Debate Clause against questions by the grand jury inquiry regarding activities which are not legislative duties.
As I see it, Graham’s choices now are to plead the Fifth or to face a contempt of court charge if he refuses to answer the sort of questions that Judge May has ruled are clearly permissible and then try to appeal that contempt charge all the way up to a Supreme Court which has time and again ruled unfavorably to Trump himself regarding the 2020 election. Or he could actually answer the questions, in some weaselly way. We won’t know unless he chooses Door #2, since grand jury proceedings are conducted in secret. The one thing I’d never expect from him is honesty, and I can only hope at this point his dishonest nature will finally bear just consequences.