The Supreme Court, without any publicly noted dissents, opened the way Tuesday for a state grand jury in Georgia to question U.S. Senator Lindsey Graham about whether he made efforts to help former President Donald Trump try to overturn the 2020 presidential election.
In a one-page order, the Court said that the South Carolina Republican did not need the constitutional protection he gets as a Senator when the grand jury quizzes him about his contacts with state election officials over how the election had been run there. Trump himself had made a telephone call to those officials, asking them to “find” just enough votes for him to win in Georgia, a crucial “swing” state in 2020.
The grand jury, the Supreme Court order noted, is under orders from two federal courts not to ask Graham about his role as a legislator. The Senator had argued that the mere fact of his appearance would violate his right under the Constitution’s “Speech or Debate Clause” not to be questioned anywhere about his legislative activities.
Further, the Justices’ order said, Graham has been assured by lower courts that he can return to them if any disputes arise about what he may be asked before the grand jury. That assurance, though, might open opportunities for the Senator to delay the hearings and interrupt a grand jury that is on a schedule to complete its probe by next April. The prospect of delays will likely depend upon how quickly the courts sort out any such disputes.
The state prosecutor leading the Georgia criminal investigation is gathering evidence that could lead to criminal charges against Trump under state election law; Graham is not at risk of being charged, the prosecutor – District Attorney Fani T. Willis – has said but his testimony is regarded as essential to the investigation.
Graham has been called by the grand jury to appear on November 17. He has fought through three levels of the federal courts to avoid appearing at all. He has argued that questioning of him, on any topic related to the 2020 election, would become a probe into his motive as a lawmaker and that, he asserted, would be unconstitutional.
Lower courts narrowed specifically the range of questions that could be put to Graham as a witness. He may be asked questions about (1) communications and coordination with the Trump campaign regarding what to do about the 2020 election results in Georgia, (2) public statements the Senator had made about the election, and (3) any efforts that the Senator may have been made to “cajole” or “exhort” Georgia election officials.
Those are not legislative matters, the lower courts had found, and the Supreme Court’s order Tuesday did not appear to have second-guessed that conclusion. With the assurances he has been given, Graham does not need to be kept out of appearing to “safeguard the Senator’s Speech or Debate Clause immunity,” the Court said.
While the Court was acting on only a preliminary plea by Graham to postpone his November 17 appearance, so that he could pursue court appeals in an effort to stay off the witness stand, the Justices appeared to have rejected as unpersuasive his lawyers’ claims that any appearance would be unlawful.
Graham’s request to the Supreme Court had been made to Justice Clarence Thomas, who handles emergency matters from the geographic area that includes Georgia. Thomas passed it along to the full Court, resulting in the Tuesday order.
The order made no mention of how the nine Justices had voted. If any were opposed to the order, they did not indicate that publicly.