The Supreme Court on Tuesday cleared the way for Sen. Lindsey Graham's testimony in a Georgia investigation of possible illegal interference in the 2020 election by then-President Donald Trump and his allies in the state.
The court lifted a temporary hold on Graham's appearance before a special grand jury, now scheduled for Nov. 17.
But in an unsigned order, the justices noted that Graham still could raise objections to some questions.
“Today, the Supreme Court confirmed that the Constitution's Speech or Debate Clause applies here. They also affirmed that Senator Graham may return to the District Court if the District Attorney tries to ask questions about his constitutionally protected activities. The Senator's legal team intends to engage with the District Attorney s office on next steps to ensure respect for this constitutional immunity.”
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The South Carolina senator, a top Trump ally, had argued that a provision of the Constitution, the speech and debate clause, shields him from being forced to testify at all.
Fulton County District Attorney Fani Willis had told the justices that “the delay resulting from a stay would be unavoidably harmful” to the grand jury investigation.
Lower courts had rebuffed Graham’s plea for a pause while the legal case plays out.
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Tuesday's order dissolved a temporary hold that Justice Clarence Thomas had placed on the testimony while he and his colleagues weighed the arguments.
Graham's legal team plans to reach out to Willis' office about what happens next, according to a statement from the senator's office.
Graham, a four-term senator who last won reelection in 2020, was first subpoenaed in July by Willis. The district attorney opened her investigation shortly after a recording of a January 2021 phone call between Trump and Georgia Secretary of State Brad Raffensperger was made public. In that call, Trump suggested Raffensperger could “find” the votes needed to overturn his narrow loss to Democrat Joe Biden.
Willis wants to question Graham about two phone calls he made to Raffensperger and his staff in the weeks after the election.
During those calls, Graham asked about “reexamining certain absentee ballots cast in Georgia in order to explore the possibility of a more favorable outcome for former President Donald Trump,” Willis wrote in a petition seeking to compel his testimony.
Graham also “made reference to allegations of widespread voter fraud in the November 2020 election in Georgia, consistent with public statements made by known affiliates of the Trump Campaign,” she wrote. She said in a hearing last month that Graham may be able to provide insight into the extent of any coordinated efforts to influence the results.
Raffensperger said he took Graham’s question about absentee ballots as a suggestion to toss out legally cast votes. Graham has dismissed that interpretation as “ridiculous.” Graham has also argued that the call was protected because he was asking questions to inform his decisions on voting to certify the 2020 election and future legislation.
Lower courts already have told Willis that she “may not ask about any investigatory conduct,” which is protected under the Constitution.
The justices wrote Tuesday that their intervention is unnecessary because the courts “have held that Senator Graham may not be questioned about such activities.”
He also can return to federal court if disputes arise over the questioning in front of the grand jury, the justices wrote.
Thomas initially dealt with Graham's appeal, but involved the rest of the court in Tuesday's order, as is customary.
But Thomas did not step aside from the case, and indeed he has participated in all the election-related disputes brought to the court by Trump and his allies, despite the involvement of the justice's wife, Virginia “Ginni” Thomas, in efforts to question Trump's defeat in 2020.
Ginni Thomas, a conservative activist and staunch Trump supporter, attended the Jan. 6 “Stop the Steal” rally on the Ellipse and wrote to then-White House chief of staff Mark Meadows in the weeks following the election, encouraging him to work to overturn President Joe Biden’s victory and keep Trump in office.
She also contacted lawmakers in Arizona and Wisconsin in the weeks after the election, though no evidence has emerged that she contacted Georgia officials.
Ginni Thomas was recently interviewed by the House committee investigating the Jan. 6 insurrection, and she stood by the false claim that the 2020 election was fraudulent, despite the fact that numerous federal and local officials, a long list of courts, top former campaign staffers and even Trump’s own attorney general have all said there is no evidence of mass fraud.
