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(Photo by Demetrius Freeman-Pool/Getty Images)
Lindsey Graham got some good news yesterday from US District Court Judge Leigh May Martin in his battle to avoid testifying to the Fulton County grand jury about his efforts to “investigate” the 2020 presidential election in Georgia. Unfortunately, it was outweighed by the bad news in Judge Martin’s ruling, in which she told him for a third time that he needed to get himself down to the courthouse and tell the grand jurors what they want to know about his alleged efforts to ratf*ck the 2020 presidential election.
Since being issued a certificate of material witness in July, Graham has fought tooth and nail to keep his efforts on behalf of the Trump campaign in Georgia under wraps. In his telling, all his efforts were part of his legislative duty to ensure that Georgia’s election procedures were on the up and up and its electoral votes were fairly allocated. He’s been particularly hot to avoid talking about two phone calls to Georgia Secretary of State Brad Raffensperger, during which Raffensperger and his deputy Gabriel Sterling, who was on at least one of the calls, implied that the senator pressured them to toss out mail-in ballots in heavily Democratic districts to flip the state for Trump.
After striking out in state court, Graham filed in the Northern District of Georgia, where he wound up on Judge May’s docket. He didn’t make any headway there either, but a Hail Mary pass to the Eleventh Circuit bought him a bit of time, as the panel remanded to the trial court with instructions to consider the senator’s argument in favor of partial quashal on Speech or Debate Clause grounds.
Judge May then ordered an expedited briefing schedule, instructing Graham to lay out “exactly which questions and/or categories of information he is requesting the Court to address in an Order to partially quash the subpoena.”
Graham’s response was not that. Instead, he repeated his arguments in favor full quashal, insisting that everything he did in Georgia was part of his legislative investigation into the legitimacy of the state’s electors, and thus there is no legitimate line of inquiry to be pursued by the grand jury.
In fact, he refused to complete the assignment at all, insisting that the burden of proving the legitimacy of any particular line of inquiry fell on Fulton County District Attorney Fani Willis.
For this reason, if the Government wishes to inquire into broad topics—for example, conversations with “other known and unknown individuals”—it should (on pain of quashal) bear the burden of offering proof that those conversations were not investigatory (or otherwise legislative)—for example, not the sharing of allegations that must then be run to ground before a crucial Electoral Count Act vote. Were it otherwise, the Speech or Debate Clause would be effectively worthless: A prosecutor would need only make an open-ended request for information, leaving it to the legislator to flail about describing his legislative activities.
This may turn out to be a good longterm strategy — if Graham’s hope is to get the Eleventh Circuit to delineate the parameters of questioning, he’s better off to concede nothing at the trial level. But in the short term, it cut no mustard with Judge May, who reminded him that full quashal was already off the table, and construing the Speech or Debate immunity as narrowly as possible.
“The Court will not revisit these same arguments for complete quashal because the Court has already considered and rejected Senator Graham’s arguments in two prior orders,” she wrote tersely. “Moreover, by continuing to raise arguments for complete quashal, Senator Graham goes against the directions of both the Eleventh Circuit and this Court.”
Perhaps aware that the phone calls to Raffensperger represent the closest nexus to his legislative duties (or perhaps the area where he is most exposed to criminal prosecution), Graham argued that, if the phone call was off limits due to the Speech or Debate Clause, questions about his coordination with the Trump campaign, and his public speeches are also verbotten.
“The main problem with these topics, though, is that they are admittedly just backdoor ways to question a Senator about his ‘motivation, preparation, and/or aftermath of those calls’” he argued.
But Judge May rejected this bootstrapping argument in its entirety, pointing out that it’s entirely out of keeping with Supreme Court precedent, most recently in the 1972 case of Senator Mike Gravel.
“Members of Congress are constantly in touch with the Executive Branch of the Government and with administrative agencies—they may cajole, and exhort with respect to the administration of a federal statute—but such conduct, though generally done, is not protected legislative activity,” Justice White wrote.
This would seem to put the kibosh on most of Graham’s arguments. And while the court was open to applying Speech or Debate protections to the portion of the calls which was truly investigatory, the judge refused to “simply accept Senator Graham’s sweeping and conclusory characterizations of the calls” as wholly investigative and ignore the public statements by Raffensperger and Sterling which “call Senator Graham’s characterizations into question.”
“[T]o the extent Senator Graham was merely asking questions about Georgia’s then-existing election procedures and allegations of voter fraud in the leadup to his certification vote, such questions are shielded from inquiry under the Speech or Debate Clause,” Judge May held. But, she added, “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).”
The court concluded by reminding the senator that there is still time to turn in his homework if he so chooses.
In other words, if there are specific questions as to which Senator Graham wishes to assert a privilege or immunity claim, he may still do so and then remove those disputes to this Court, at which time the Court would be able to issue a ruling in the context of that specific (and therefore concrete) dispute. This is the approach successfully taken as to Congressman Jody Hice’s subpoena to appear in front of this same grand jury.
Onward and upward, back to the Eleventh Circuit.
Fulton County Special Purpose Grand Jury v. Graham [Docket via Court Listener]
Liz Dye lives in Baltimore where she writes about law and politics.
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