U.S. Supreme Court allows Graham questioning in Georgia election probe

Department of Justice Fiscal Year 2023 Budget Hearing
U.S. Senator Lindsey Graham (R-SC) asks questions to Attorney General Merrick Garland during a Senate Appropriations Subcommittee on Commerce, Justice, Science, and Related Agencies hearing to discuss the fiscal year 2023 budget of the Department of Justice at the Capitol in Washington, DC, U.S., April 26, 2022. Greg Nash/Pool via REUTERS/File Photo

WASHINGTON, Nov 1 (Reuters) - The U.S. Supreme Court on Tuesday declined to block Senator Lindsey Graham from having to testify before a grand jury in a criminal investigation of Donald Trump's efforts to overturn his 2020 election loss in the state of Georgia, handing a setback to a prominent ally of the former president.

The justices denied Graham's emergency request to put on hold a judge's order requiring him to appear as a witness before the grand jury in Fulton County while the Republican senator's appeal in the dispute proceeded. Graham, who represents South Carolina in the Senate, contends that as a member of Congress he is protected under the U.S. Constitution from questioning in the investigation.

There were no publicly noted dissents to the decision. The unsigned order said that the lower courts assumed that Graham, as a sitting senator, was immune from questioning under the Constitution's so-called Speech or Debate Clause for any fact-finding efforts in which he engaged and that he may legally contest any disputes arising from specific questions.

"Accordingly, a stay or injunction is not necessary to safeguard the Senator's Speech or Debate Clause immunity," the order said.

The order lifted a temporary block on the testimony issued on Oct. 24 by Justice Clarence Thomas pending a decision by the full court on how to proceed. Graham had appealed to the Supreme Court after the Atlanta-based 11th U.S. Circuit Court of Appeals on Oct. 20 rebuffed his attempt to avoid testifying as ordered by a judge while the litigation proceeds.

Graham is not a target in the investigation but has been subpoenaed to testify before a special grand jury formed as part of the probe led by Fulton County District Attorney, a Democrat, into possible coordinated attempts to illegally interfere in the outcome of the 2020 election. In Georgia, a special grand jury cannot return indictments but can recommend criminal prosecution.


Prosecutors sought Graham's testimony about phone calls he made to Georgia election officials in the weeks after Trump, a Republican, lost the election to Democrat Joe Biden. Graham during the calls questioned the officials - also Republicans - "about re-examining certain absentee ballots in order to explore the possibility of more favorable outcome for former President Donald Trump," prosecutors said in court documents.

Graham has "unique knowledge" regarding communications "involved in the multi-state, coordinated efforts to influence the results of the November 2020 election in Georgia and elsewhere," the prosecutors added.

Graham has said he is constitutionally immune from questioning because his calls to state officials were "made in the process of fulfilling his duties" as a senator and were aimed at fact-finding "to help inform his vote to certify the election."

Congress voted to certify the election results hours after pro-Trump rioters stormed the U.S. Capitol and attacked police in a bid to halt the process. Trump continues to appear at rallies repeating his false claims that the election was stolen from him through widespread voting fraud.

Graham was a rival to Trump for the 2016 Republican presidential nomination and a fierce critic, but later became a defender, close ally and occasional golfing buddy.

U.S. District Judge Leigh Martin May on Sept. 1 rejected Graham's bid to quash the subpoena but limited the scope of questioning, ruling that the senator is protected from having to discuss "investigatory fact-finding." May said Graham may be questioned about alleged efforts to encourage officials to throw out ballots or alleged communications with the Trump campaign.

The investigation was launched after Trump was recorded in a Jan. 2, 2021, phone call pressuring Georgia Secretary of State Brad Raffensperger to overturn the state's election results based on unfounded claims of voter fraud. During the phone call, Trump urged Raffensperger to "find" enough votes to overturn his Georgia loss to Biden.

The transcript of the call quotes Trump telling Raffensperger: "I just want to find 11,780 votes," which is the number Trump needed to win Georgia. Trump has denied wrongdoing in the phone call.

Legal experts have said Trump's phone calls may have violated at least three Georgia election laws: conspiracy to commit election fraud, criminal solicitation to commit election fraud and intentional interference with performance of election duties.

Reporting by Andrew Chung in Washington and Nate Raymond in Boston; Editing by Will Dunham

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