Federal Appeals Court Halts Graham Testimony Before Atlanta Grand Jury

ATLANTA — A federal appeals court temporarily blocked Senator Lindsey Graham, Republican of South Carolina, on Sunday from testifying in the investigation into efforts by President Donald J. Trump and his allies to overturn the 2020 presidential election results in Georgia. The appeals court instructed a lower court to determine whether Mr. Graham should be exempt from answering certain kinds of questions, given his status as a federal lawmaker.

The ruling by the U.S. Court of Appeals for the 11th Circuit gives a temporary reprieve to Mr. Graham, who has been fighting prosecutors’ efforts to bring him before a special grand jury. After a protracted bout of legal sparring, Mr. Graham, at the end of last week, appeared to have failed in his efforts to remain above the matter and had been expected to testify behind closed doors on Tuesday in a downtown Atlanta courthouse.

Mr. Graham has argued, among other things, that he should be exempt from testifying under the U.S. Constitution’s speech and debate clause, which prohibits asking lawmakers about their legitimate legislative functions. The appeals court laid out further steps on Sunday that must be taken before Mr. Graham gives any testimony.

First, the court ruled, a Federal District Court must determine whether Mr. Graham is “entitled to a partial quashal or modification of the subpoena to appear before the special purpose grand jury” based on the speech and debate clause issue. After that, the appeals court said, it will take up the issue “for further consideration.”

Lawyers for Mr. Graham have said that he was informed by Fulton County prosecutors that he was a witness, not a target, in the case.

Even so, prosecutors want Mr. Graham’s testimony for a number of reasons. Among them are two phone calls that he made just after the 2020 election to Brad Raffensperger, Georgia’s secretary of state, in which Mr. Graham inquired about ways to help Mr. Trump by invalidating certain mail-in votes.

They also want him to answer other questions about what they have called “the multistate, coordinated efforts to influence the results of the November 2020 election in Georgia and elsewhere.” Prosecutors have said in court documents that they expect Mr. Graham’s testimony “to reveal additional sources of information” related to their investigation.

This month, Mr. Graham called the effort to make him testify “ridiculous” and a “weaponization of the law.”

“We will go as far as we need to go and do whatever needs to be done to make sure that people like me can do their jobs without fear of some county prosecutor coming after you,” he said.

The speech and debate clause appears in Article 1, Section 6 of the U.S. Constitution, and states that members of Congress “shall not be questioned in any other place” for “any speech or debate in either house.” The framers of the Constitution wrote it with the idea of protecting the independence of the legislative branch from other branches, and were influenced by the evolution of an independent parliament in England.

In essence, the intention of the clause is to shield members of Congress “from having to worry that anything they say in the course of legislative activities will implicate them in a lawsuit,” according to an analysis by John R. Vile, a political science professor at Middle Tennessee State University.

The U.S. Supreme Court has ruled that the clause extends to “purely legislative activities,” but not to political activities.

The clause has been invoked in a number of criminal cases in recent years involving legislators, including former Representative Chris Collins, Republican of New York, who claimed that federal prosecutors had violated the clause in a securities fraud case against him. But a judge ruled that the Justice Department had not violated the clause in securing certain congressional materials, and Mr. Collins pleaded guilty to criminal charges in 2019.

Senator Robert Menendez, Democrat of New Jersey, also invoked the clause when he fought a corruption case that resulted in a mistrial, leading the Justice Department to eventually drop the criminal charges in 2018.

Last Monday, U.S. District Judge Leigh Martin May ordered Mr. Graham to testify, writing that prosecutors had shown that there was “a special need for Mr. Graham’s testimony on issues relating to alleged attempts to influence or disrupt the lawful administration of Georgia’s 2022 elections.”

Mr. Graham appealed his case to the 11th Circuit and argued to Judge May that he should not have to testify until the appeals process was concluded. The prosecutor leading the investigation, District Attorney Fani T. Willis of Fulton County, pushed back. In a court filing, she said that the resolution of Mr. Graham’s appeal might not come for months, hampering her efforts to flesh out a broader investigation in a timely fashion. Ms. Willis has said that the case could result in racketeering or conspiracy charges involving multiple defendants.

Judge May has thus far been skeptical about Mr. Graham’s claim that he should not have to testify at all, writing that “there are multiple topics upon which Senator Graham could face questioning that in no way implicate protected legislative activity under the speech or debate clause.”

These topics, she wrote, include acts that are “political in nature rather than legislative,” and that would encompass any coordination with the Trump campaign; efforts to “cajole” or “exhort” Georgia election officials to change election results or processes; and any public statements or speeches Mr. Graham made outside of Congress about the 2020 elections.

She also warned against an overbroad application of the speech and debate clause. Doing so, she said, “would allow any sitting senator to shield all manner of potential criminal conduct occurring during a phone call merely by asserting the purpose of the call was legislative fact-finding — no matter whether the call subsequently took a different turn.”

Even though Mr. Graham’s testimony in front of the special grand jury has been delayed, the appellate court seemed to signal that it may approve future questioning of Mr. Graham not covered by the speech and debate clause.

“So they don’t want the speech and debate-protected questions to be asked, but as to the rest of the subpoena, the rest of the questions, they are signaling that they will allow it,” said Norman Eisen, a lawyer who served as special counsel to the House Judiciary Committee during the first impeachment and trial of Mr. Trump. In an email on Sunday, he said: “Note that they are remanding to a district court judge who has already made her views clear that many of the questions that the D.A. wants to ask are permissible and not within the bounds of the speech and debate clause.”

In the Georgia investigation, the speech and debate clause was also invoked by Representative Jody Hice, Republican of Georgia and a Trump ally, as he sought to quash his own subpoena to appear before the special grand jury. In that matter, Judge May ruled that Mr. Hice must testify, while noting that some questions may be off limits.

Language similar to that of the speech and debate clause exists in the Georgia Constitution, and Lt. Gov. Geoff Duncan and former State Senator William Ligon invoked that language earlier this summer as they sought to avoid appearing before the special grand jury. But in early July, Superior Court Judge Robert C.I. McBurney of Fulton County took a position similar to Judge May’s, ruling that the men must testify but should not be made to answer questions prohibited by the state immunity clause.

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