Graham asks appeals court to reject Georgia subpoena

Sen. Lindsey Graham (R-S.C.) on Tuesday detailed to a federal appeals court why it should quash a subpoena compelling him to testify before a Fulton County, Ga., special grand jury probing former President Trump’s alleged interference in the 2020 election. 

A federal trial court last month partially rejected the subpoena, but in a 72-page filing, Graham’s attorneys laid out three constitutional arguments they say should each independently merit a complete blocking.

It’s the latest move in Graham’s months-long attempt to avoid testifying before the special grand jury.

District Attorney Fani Willis (D) has expressed interest in hearing from Graham about calls he made to Georgia’s top election official, Secretary of State Brad Raffensperger (R), following the election.

She opened the probe shortly after a call went public between Trump and Raffensperger in which the former president told Raffensperger to “find” the roughly 11,000 votes he needed to win the state. 

As he has argued for months, Graham said the Constitution’s Speech and Debate Clause — which protects lawmakers from lawsuits for actions taken within the sphere of legitimate legislative activity — prohibits his testimony about the calls in their entirety.

Graham has suggested the calls fall within the clause’s scope because the conversations helped him declare President Biden the legitimate election winner and support reforms to the Electoral Count Act in his purview as a senator.

The trial court responded to those arguments by partially quashing the subpoena for questions about Graham’s “investigatory fact-finding” on the calls.

But the court otherwise permitted his testimony, including communications with the Trump campaign, public statements on the election and his alleged effort to “cajole” Georgia election officials.

Graham’s attorneys argued that would allow the senator to be asked about his legislative activities.

“These are backdoor ways to question Senator Graham about the motives for his legislative activity; unsupported by evidence; and outside the scope of the subpoena and special grand jury anyway. Full quashal is thus proper,” Graham’s attorneys wrote of the trial court’s arguments.

Graham’s attorneys also wrote that sovereign immunity, which prevents a state court from compelling a federal official to testify about actions taken in their official capacity, applies.

Willis’s office has argued that Graham’s argument would give senators absolute immunity from all state grand juries and that the South Carolina Republican had not cited cases with comparable authority.

In their third and final argument, Graham’s attorneys said he is protected from testimony under the “high-ranking-official doctrine.” 

The doctrine requires parties seeking high-ranking officials’ testimony to “present extraordinary circumstances” for the request.

Graham’s attorneys argued Willis had not met the necessary burdens under the doctrine of showing his testimony would be both “unique” and “essential,” because the substance of his testimony could be discerned from other witnesses.

“What Senator Graham said to various people is available from those other people,” the filing states. “And what Senator Graham said publicly is available from a quick Google search.”

Graham is one of multiple officials Willis has subpoenaed as part of the election probe.

On Friday, she requested that a court compel testimony from former House Speaker Newt Gingrich (R-Ga.), former Trump national security adviser Michael Flynn, former Trump White House attorney Eric Herschmann and others to testify in the investigation. 

Willis has indicated she will suspend her investigation’s public activities until after the November midterm elections and that she expects to make a decision about whether to seek Trump’s testimony later this fall.

At least 17 people have been notified that they are targets of a criminal investigation from Willis. Those people include former Trump attorney Rudy Giuliani and the 16 people put forth as unofficial or “fake” electors who had not actually been selected as Electoral College electors by their states.