Seeking shelter under a hallowed legal tradition that has its origins in the “Glorious Revolution” in England (1688-1689), Republican Senator Lindsey Graham is now asking the U.S. Supreme Court to keep him out of a witness chair in Atlanta, GA. A local prosecutor wants to question the South Carolina Senator, under oath, as she builds toward potential criminal charges against former President Donald Trump.
Legal experts tend to think that District Attorney Fanni Willis is the prosecutor most likely to start a criminal case against Trump, based on his multi-faceted political and legal campaign to hold onto the Presidency by undoing the 2020 election. Americans have heard, over and over, a recording of Trump on the telephone, telling state officials in Georgia to “find” just enough additional votes to give him victory in that state – a state that was a key to President Biden’s win.
Graham has been told that he is not a “target” for criminal charges by the “special grand jury” that Willis is using in her investigation, but his testimony is regarded by Willis as unique and necessary as she probes “possible attempts to disrupt the lawful administration of the 2020 elections” in that state. (Under Georgia law, the special forum Willis is using cannot pursue charges on its own, but can recommend that prosecutors do so.)
Soon after the election, Graham made at least two telephone calls to Georgia election officials. His challenge to demands that he testify about those calls turns on two basic questions: what was his purpose, and why was he pursuing it? The Senator, in the filing his lawyers made in the Supreme Court last week, claims an entirely legitimate purpose, and asserts that the “why” is an issue about motive, and that is simply none of the business of the Georgia prosecutor or, indeed, of anyone else.
What was he doing on those calls? As a member of the Senate, the Senator says, he was going to have to vote on January 6, 2021, when Congress counted the final Electoral College votes for the Presidency and he needed election data for that, and, as chairman of the Senate Judiciary Committee, he needed information about voting methods as the possible basis for new election legislation. In fact, he notes, he has since January 6 joined in sponsoring a proposed bill to reform the method of counting Electoral Votes.
If the courts, including the Supreme Court, were to agree that those were his purposes, he probably would then be shielded from having to explain his legislative interests to anyone outside of Congress. In other words, he could be shielded under the Constitution’s “Speech or Debate Clause” in Article I. But that might not immunize him from having to appear for some questioning.
His reliance on that constitutional clause is what links his case to 17th Century England, when Parliament – after years of civil war with the Crown – claimed to be the ultimate sovereign authority in that nation. In 1689, the Parliament enacted the Bill of Rights, one part of which declares that “the freedom of speech, and debates in proceedings in Parliament, ought not to be impeached or questioned in any court or place out of Parliament.”
When America’s Founders gathered in Philadelphia, about a century later, to write a new Constitution, they adopted a version of that principle without any real debate. The Clause that resulted says that the Senators and Representatives shall “not be questioned in any other place…for any speech or debate in either House.”
The Supreme Court has ruled repeatedly that this protection applies only to activity that can be defined as legislative in character. For example, in a 1972 case involving Maryland Democratic Senator Daniel Brewster, the Court made clear that the Clause does not protect any right of a lawmaker to take a bribe for voting in a particular way in Congress. (Brewster ultimately pleaded guilty only to a minor charge of accepting an illegal “gratuity.” He was fined but was allowed to keep his law license. He died in 2007.)
Even in the Brewster case, though, the Court stressed that the prosecution could not inquire into what legislative action Brewster took, and had to confine itself to proving that he took money in return for doing so.
Senator Graham’s lawyers are relying very heavily on what that case and others have said about ruling out investigations of a legislator’s motives for legislative acts.
But what if, in reality, Senator Graham approached Georgia officials with the political aim of trying to help out Donald Trump by attempting to coerce or intimidate those officials on how to count their state’s presidential votes? Was he trying to advance Trump’s assertion that the 2020 election was stolen by fraud? Wouldn’t that be outside the field of legislative activity?
That is precisely what Graham is trying to exclude as unconstitutional inquiries into motives. Candidly, his lawyers concede that lawmakers seldom do much of anything without being aware of the political implications, but they nevertheless insist that questions about such motives are totally out of bounds, under the Speech or Debate Clause.
It is important to note that, as his case now stands on the threshold of some action by the Supreme Court, Graham is under no obligation to answer any questions by DA Willis and her team about his legislative claims – that is, about needing election date to inform his votes on January 6, 2021, or his interest since then in pursuing new election legislation.
The federal trial judge in Atlanta who ruled on Willis’s subpoena for Graham’s testimony upheld it only in part, forbidding any investigation of his legislative activity. The judge, though, would still allow questioning of Graham about three topics which she found were unrelated to legislation and not directly questions the phone calls: communications and coordination with the Trump Campaign regarding what to do about the 2020 election results, public statements Graham had made about the election, and any efforts made to “cajole” or “exhort” Georgia election officials. Those, she concluded, were not legislative matters.
The Eleventh Circuit federal appeals court upheld that approach, for the time being. Those three areas, that court declared, “could not qualify as legislative activities under any understanding of Supreme Court precedent. We thus find it unlikely that questions about them would violate the Speech or Debate Clause.”
The appeals court said that, if a dispute arose about whether a particular question or line of questioning crossed the line while Graham was on the stand, the Senator could challenge at that time. The appeals court refused to put its decision on hold, thus seeming to clear the way for Graham to appear on November 17.
The Senator, however, went directly to the Supreme Court on Friday, arguing that the questions the judge would allow are only questions about his motives, and that he should not have to appear before the special grand jury at all because it would violate his rights under the Speech or Debate Clause. His arguments appear to be a broad plea to expand the concept of the Brewster precedent, to keep lawmakers’ motives entirely out of any judicial inquiry.
The appeals court decision was not a final one on the constitutional dispute, so Graham’s plea to the Supreme Court asked only for an order to block any questioning of him by prosecutors until his challenge to the trial judge’s subpoena order had been challenged in an appeal, including potentially a full appeal to the Supreme Court.
In the meantime, Graham also asked the Justices to put the grand jury process on hold, at least so far as it applies to any summons to him to testify.
Because Georgia is located in the Eleventh Federal Circuit, Graham’s plea was filed with Justice Clarence Thomas, who handles preliminary or emergency matters arising in that Circuit. Thomas has the authority to act on his own, or to refer the dispute to the full nine-Justice Court. Thomas has told DA Willis to file a response by next Thursday afternoon. Nothing is expected to happen until that filing is in.