Fri. Sep 30th, 2022

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.

Last Monday, however, 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 the 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.”



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