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Georgia prosecutor asks high court to force Graham to testify in election probe

A grand jury investigating efforts to overturn the 2020 election is looking at a phone call between the Republican senator and Georgia’s top election official.

WASHINGTON (CN) — A Georgia district attorney asked the Supreme Court on Thursday to force Republican Senator Lindsey Graham to testify in a probe into efforts to flip election results in the Peach State in favor of former President Donald Trump.

A grand jury is interested in calls made between the South Carolina senator and Georgia Secretary of State Brad Raffensperger. According to Raffensperger’s recollection of the call, Graham suggested large numbers of mail-in ballots from the 2020 election could be discarded or invalidated. Graham allegedly also discussed potential court challenges to defend Trump. On the same day as the call between Raffensperger and Graham, attorney Lin Wood filed a lawsuit challenging Georgia’s signature verification procedures and Trump tweeted about the subject. 

Graham denies Raffensperger’s account and claims the call concerned an upcoming runoff election. 

“Despite Senator Graham’s attempts to portray himself and the future of the Speech or Debate Clause as imperiled by the prospect of his questioning, the record and the orders of the lower courts demonstrate that his arguments lack adequate factual or legal support to carry his heavy burden before Your Honor,” Fulton County District Attorney Fani Willis wrote in the grand jury’s brief to the Supreme Court.

The grand jury subpoenaed Graham seeking his testimony on the phone call. A district court threw out Graham’s attempt to quash the subpoena and denied his emergency motion for a stay. The 11th Circuit also denied a stay in the case, ordering Graham to testify. Instead, Graham appealed to the high court. The court issued an administrative stay on Monday, offering temporary relief to the senator while the court finishes briefing in the case. 

Noting previous stay denials, Willis claims Graham is unlikely to prevail in the Supreme Court and would not be harmed if a stay was denied. Graham has already been granted immunity from questions about his legislative activities while his appeal processes. 

The district attorney argues Graham’s speech or debate clause defense fails because the Constitution only protects activities connected to actual legislative acts of the member of Congress. 

“Senator Graham now asks that Your Honor depart from established precedent and find that his telephone calls to Georgia’s Secretary of State are, on their face, ‘manifestly legislative acts,’” Willis wrote. “The Senator continues to maintain that ‘every objective fact,’ stripped of any considerations of motive, demonstrates that the phone calls were entirely legislative. Put simply, this is because he apparently asked about Georgia’s voting procedures and ultimately would vote on the certification of the 2020 election and propose amendments to the Electoral Count Act.” 

However, the district court already found that calls between Raffensperger and Graham were not “manifestly legislative on their face.” 

The application currently sits before Justice Clarence Thomas, who handles cases from the 11th Circuit. Thomas could answer the application himself or refer the matter to the entire court. It is not clear when the court will respond. 

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