ATLANTA (CN) — A federal judge on Thursday again ruled that U.S. Senator Lindsey Graham must testify before a special grand jury investigating potential criminal efforts to overturn Georgia's 2020 election results.
This is the second time that U.S. District Judge Leigh May rejected the South Carolina Republican’s request to quash his subpoena entirely.
However, this time May agreed with Graham’s attorneys that prosecutors cannot ask him questions about his “investigatory fact-finding on the telephone calls to Georgia election officials, including how such information related to his decision to certify the results of the 2020 presidential election.”
The Fulton County District Attorney’s Office has said that Graham is a necessary witness in the investigation because of phone calls he made to Georgia Secretary of State Brad Raffensperger and his staff following the 2020 presidential election, during which Graham allegedly asked about reexamining certain absentee ballots "to explore a more favorable outcome" for Trump.
Attorneys for Graham argue that the senator's call were only to ask questions to personally inform himself about allegations of voter fraud in Georgia for his upcoming certification decision.
“Given that the Electoral Count Act designates the responsibility of certification to the members of Congress, the Court finds that a member of Congress could, pursuant to this duty, engage in individual investigatory efforts to understand a state’s voting procedures so as to inform his or her eventual decision to certify the results of a presidential election,” wrote May, a Barack Obama appointee.
She ruled that this area of inquiry constitutes legislative activity, which Congress members are shielded from testifying about under the U.S. Constitution’s speech or debate clause.
But such protections do not guard Graham from questioning about “any alleged efforts to encourage Secretary Raffensperger or others to throw out ballots or otherwise alter Georgia’s election practices and procedures," the ruling states.
Any inquiry from the grand jurors into Graham’s alleged communications and coordination with members of the Trump campaign and their post-election activity in Georgia, as well as any related public statements he made, will be permitted.
Raffensperger, who has already testified, has publicly stated that he has a different interpretation of Graham’s motive behind the calls. The fellow Republican told reporters in November 2020 that Graham called and “implied for us to audit the envelopes, and then throw out the ballots for counties who [have] the highest frequency error of signatures.”
But prosecutors allege that Graham not only spread election fraud disinformation during appearances on Fox News, but has told reporters that Raffensperger's statements about the calls were false.
“In this way, and contrary to Senator Graham’s framing of the 'objective facts,' the public dispute regarding these calls is not reducible to a mere disagreement over Senator Graham’s 'real' motivations; instead, there is a fundamental factual dispute as to the very nature and substance of the phone calls and what Senator Graham actually stated and suggested on the calls,” May wrote.
The judge sided with arguments from the district attorney’s office that the scope of the probe is much broader than just the context of Graham’s statements, extending to whether there were "multi-state, coordinated efforts” to influence the results of Georgia’s 2020 election and elsewhere.
Graham was originally supposed to testify on Aug. 23, per the judge’s initial order the week prior. But a delay was ordered by the 11th Circuit, which sided with the senator and instructed the lower court to consider granting a partial quashal of his subpoena or modifications to it, to clarify the scope of the district attorney's questioning.
Although his appearance is becoming more inescapable, it is still not imminent as the case now returns to the Atlanta-based federal appeals court, where a three-judge panel will consider Graham’s challenge again following May’s new ruling.
The 23-person grand jury is already expected to be seated through at least the end of the year, as the judge overseeing it on Wednesday postponed Republican Governor Brian Kemp’s appearance until after the state’s November elections.
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