GOP Sen. Lindsey Graham has successfully stalled his impending subpoena from Fulton County, Georgia DA Fani Willis over the county's election interference case against Donald Trump.
A federal appeals court gave Sen. Lindsey Graham a temporary win early Sunday, ruling that he doesn’t have to comply for now with a subpoena from an Atlanta grand jury demanding that he testify Tuesday about his role in an effort to pressure Georgia officials to change the results of the 2020 presidential election.
The 11th Circuit Court of Appeals blocked the subpoena at Graham’s request Sunday, after a federal district court judge in Atlanta turned down the South Carolina Republican’s bid to avoid testifying on the grounds that the local grand jury is intruding on legal protections he enjoys as a federal lawmaker.
The appeals court said in a two-page order that Graham’s attorneys and prosecutors for Fulton County District Attorney Fani Willis needed to flesh out arguments about whether Graham is entitled to have the federal courts place legal guardrails on the questioning Graham could face. The 11th Circuit panel’s order said that those arguments should be presented first to U.S. District Court Judge Leigh Martin May, who issued a ruling last week rejecting the arguments Graham’s team raised under the Constitution’s speech or debate clause — which immunizes lawmakers from most legal consequences for actions relating to their lawmaking responsibilities.
Investigators have said they want to query Graham about two phone calls he had with Georgia election officials in late 2020, at the same time Trump was attempting to subvert his defeat. Graham has acknowledged discussing with the officials the state’s process for counting absentee ballots.
His attorneys have argued that those conversations pertained to his official duties as a senator, but May ruled there were indications that the exchanges went beyond “legislative fact-finding.”
“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,” May wrote in her decision last Monday.
“And though other Georgia election officials were allegedly present on these calls and have made public statements about the substance of those conversations, Senator Graham has largely (and indeed publicly) disputed their characterizations of the nature of the calls and what was said and implied. Accordingly, Senator Graham’s potential testimony on these issues … are unique to Senator Graham.”
The appeals court called its Sunday morning action a “limited remand” and said the subpoena would essentially be put on hold while the possibility of constraints on the scope of questioning of Graham is hashed out at the district court.
It’s unclear whether the appeals court’s order will lead to further oral arguments in front of May or only to the filing of additional legal briefs, but the appeals court instructed her not to dawdle.
“The district court shall expedite the parties’ briefing in a manner that it deems appropriate,” the 11th Circuit’s order said.
Graham’s stay request was handled by a three-judge panel at the conservative-leaning, Atlanta-based appeals court: Judges Charles Wilson, Kevin Newsom and Britt Grant. Wilson is an appointee of former President Bill Clinton, while Newsom and Grant are both Trump appointees. It is likely they will hang on to the case when it returns to the appeals court, at least for any urgent proceedings.
While the ruling last week indicates that DA Willis's case is moving forward quickly towards the indictment phase, the reality is that there's little chance that the court will hear from Graham. I practically guarantee you that no matter what the 11th Circuit panel finally rules, there's five votes on the Roberts Court, possibly six, to say that Graham's efforts to lobby Georgia Republicans to empanel a fraudulent slate of electors and award the state to Donald Trump will be deemed "legislative fact-finding" and the subpoena quashed.
However Willis gets to her endgame, she's most likely not going to have any of Graham's sworn testimony to go with it. However, Rudy Giuliani did testify last week. She may not need Graham's testimony to make her case before the grand jury.
We'll see.
You won't hear a word from him under oath in Atlanta.
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