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Federal judge orders Graham to testify in Georgia election probe

The judge ruled the Republican senator from South Carolina is not protected by legislative immunity and must appear before a special grand jury next week.

ATLANTA (CN) — A federal judge refused Monday to quash an Atlanta-area prosecutor’s subpoena of U.S. Senator Lindsey Graham, meaning he will have to appear next week before a special grand jury investigating whether former President Donald Trump and his allies illegally attempted to overturn Georgia's 2020 election results.

Last week, attorneys for the South Carolina Republican argued before U.S. District Judge Leigh May that the speech and debate clause of the U.S. Constitution shields Graham and other members of the U.S. House and Senate from being questioned in court about their legislative activities and the motivations behind them.

"Though Senator Graham argues that he is exempt from testifying as a high-ranking government official, the Court finds that the District Attorney has shown extraordinary circumstances and a special need for Senator Graham’s testimony on issues relating to alleged attempts to influence or disrupt the lawful administration of Georgia’s 2022 elections," May, an Obama appointee, wrote in Monday's order.

Fulton County District Attorney Fani Willis launched the investigation last year and was granted a special grand jury, for which she has issued subpoenas for testimony from seven Trump advisers and associates. 

According to Graham’s subpoena, Willis wants to question him about phone calls he made to Georgia Secretary of State Brad Raffensperger and his staff following the Nov. 3, 2020, election, during which Graham allegedly asked about reexamining certain absentee ballots cast "to explore a more favorable outcome" for Trump.

Graham asserted that these phone calls constituted protected legislative activity and were made solely for information gathering purposes about election integrity and election law, but May rejected his argument.

“Contrary to Senator Graham’s assertions that there exists no ‘conflict of legally material fact’ as to the purpose and substance of the calls, there has been public disagreement and dispute among the calls’ participants as to the nature and meaning of Senator Graham’s statements and inquiries therein,” the judge wrote.

At last Wednesday’s hearing, the district attorney’s office argued that Raffensperger has a different interpretation of the calls, as he told reporters in November 2020, “Senator Graham implied for us to audit the envelopes and then throw out the ballots for counties who have the highest frequency error of signatures.”

May sided with Willis’ argument that the purpose of the investigation is much broader than the phone call and investigators will also ask Graham about other public statements and conversations to determine if there was “any coordination either before or after the calls with the Trump campaign’s post-election efforts in Georgia.”

The U.S.  Supreme Court has previously recognized that federal lawmakers’ actions fall outside of the constitutional protections when they become “political in nature rather than legislative,” according to the judge’s order.

In regard to Graham’s argument that his position as a U.S. senator grants him sovereign immunity, May wrote that the law does not give federal officials “complete immunity based solely on their status.”

When asked about his efforts to fight his subpoena during a news conference in Columbia, South Carolina, last week, Graham said, "I was chairman of the Senate Judiciary Committee and had to vote on certifying an election.”

“This is ridiculous. This weaponization of the law needs to stop. So I will use the courts. 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,” Graham told reporters.

Graham is scheduled to give his testimony before the special grand jury in Atlanta on Aug. 23 but is likely to appeal May’s ruling to the 11th Circuit. For now, the case falls back in the hands of Fulton County Superior Court Judge Robert McBurney, who is overseeing the grand jury investigation.

Lieutenant Governor Geoff Duncan and state Senator William Ligon’s attempts to quash their subpoenas were also rejected last month.

Two attorneys who represented Trump following the 2020 election who were also subpoenaed are scheduled to appear for out-of-state hearings this week.

A federal judge in Colorado will decide Tuesday if attorney Jenna Ellis must come to Atlanta to testify, and one in Santa Fe, New Mexico will rule in the case of attorney John Eastman on Wednesday.

Trump’s former personal lawyer Rudy Giuliani has been ordered to appear before the special grand jury on Wednesday.

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