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Graham fights to quash subpoena in Trump election probe

A Georgia federal judge is expected to issue a ruling in the coming days on whether the Republican senator must testify before a special grand jury in two weeks or if he's protected by legislative immunity.

ATLANTA (CN) — Attorneys for U.S. Senator Lindsey Graham appeared before a federal judge Wednesday to challenge a subpoena filed by the Georgia prosecutor investigating whether former President Donald Trump and his allies illegally tried to interfere with the state's 2020 election results.

The South Carolina Republican was ordered in July to testify before a special grand jury on Aug. 23, due to phone calls he made with the the Georgia Secretary of State Brad Raffensperger in the weeks following the November 2020 election.

During these calls, Graham allegedly asked Raffensperger and members of his staff about reexamining certain absentee ballots cast "to explore a more favorable outcome" for Trump.

The grand jury summons states that Graham is a "necessary and material witness" to the investigation. The probe is spearheaded by Fulton County District Attorney Fani Willis.

Graham and his legal counsel argue that the speech and debate clause of the U.S. Constitution shields himself and other members of the U.S. House and Senate from being questioned in court about their legislative activities and the motivations behind them.

Willis and her team claim Graham was acting far outside of his official legislative duties when he questioned the head elections official of another state.

During Wednesday's hearing, Graham's attorney Brian Lea said that the senator was simply fact-finding and asking questions pertaining to the security of the electoral process and that his "motive is irrelevant." Lea referred to the subpoena as a "fishing expedition."

U.S. District Judge Leigh May, an Obama appointee, said that Graham receiving instructions from the Trump campaign and telling people what to do "are very different than information-gathering."

According to Lea, sovereign immunity also shields Graham from judicial proceedings and that high-ranking government officials cannot be ordered to testify unless there are extraordinary circumstances compelling them to do so.

"When you have someone with first-hand knowledge about something disputed, this does not fit into where this rule has been used in the past," May said.

Attorney McDonald Wakeford, representing the district attorney's office, told the judge that Graham is a necessary witness because there is a dispute over the context of the phone call.

In his brief, Wakeford refers to a statement Raffensperger gave to CBS News in November 2020, in which he said, “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 said that there's a "stumbling block" because the district attorney's scope appears to be broader than just Graham's phone calls and there aren't a lot of facts in the record outside of that to go by.

"Have you thought about how this will work?" the Judge asked Wakeford regarding what questions they seek to ask Graham before the special grand jury.

Wakeford said "there is the question of coordination" and the extent through other officials and the Trump campaign.

After questioning both sides and hearing their arguments, May said she intends to issue a ruling on Friday or Monday to either quash the subpoena entirely or partly, or remand the case back to Fulton County Superior Court to determine the extent of what questions will be allowed.

The Judge ordered Graham's legal team to submit another brief that discusses if it his burden or the DA's office's to prove that his actions were within his legislative capacity and why under the constitutional clause.

An amicus curiae brief was also filed by several former prosecutors in opposition to Graham's motion to quash the subpoena, writing that "his argument goes much too far."

Two Georgia Republicans who were also ordered to testify, Lieutenant Governor Geoff Duncan and state Senator William Ligon, challenged their subpoenas last month, claiming they also have legislative immunity.

Willis and her team argue that activities that seek to reverse certified election results are extrajudicial and not protected by the state's constitution.

Robert McBurney, the Fulton County Superior Court Judge overseeing the case, determined that Duncan and Ligon were required to testify, but that prosecutors and jurors couldn’t ask them about their communications regarding legislative work.

McBurney also ruled that Willis and her staff cannot question Georgia’s Republican nominee to succeed Duncan as lieutenant governor, state Senator Burt Jones, because Willis hosted a fundraiser for his Democratic rival, Charlie Bailey.

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