Appeals Court Delays Graham’s Testimony Before Fulton County Grand Jury

WASHINGTON, DC - AUGUST 05: U.S. Sen. Lindsey Graham (R-SC) attends a press conference at the U.S. Capitol on August 05, 2022 in Washington, DC. The group of Republican Senators held the press conference to speak out... WASHINGTON, DC - AUGUST 05: U.S. Sen. Lindsey Graham (R-SC) attends a press conference at the U.S. Capitol on August 05, 2022 in Washington, DC. The group of Republican Senators held the press conference to speak out against the Democrats' tax and spending policies. (Photo by Kevin Dietsch/Getty Images) MORE LESS

A federal appeals court on Sunday delayed Sen. Lindsey Graham’s (R-SC) testimony before a special grand jury in Fulton County that was initially scheduled for Tuesday, following an appeal by Graham’s lawyers that pushed back at a district court judge’s rejection of a motion to quash his subpoena.

On Sunday, the 11th Circuit Court of Appeals ruled that Graham does not have to comply with the subpoena from the grand jury until his attorneys and Fulton County district attorney Fani Willis outline arguments about what types of questions the GOP senator can be asked in light of constitutional protections he has as a sitting member of Congress.

“This case is remanded to the district court for the limited purpose of allowing the district court to determine whether Appellant is entitled to a partial quashal or modification of the subpoena to appear before the special purpose grand jury based on any protections afforded by the Speech or Debate Clause of the United States Constitution,” the appeals court said in a two-page order.

The appeals court order follows a federal judge’s rejection last week of Graham’s attempt to quash the grand jury’s subpoena. In a 22-page ruling, U.S. District Judge Leigh Martin May ruled that the Fulton County district attorney demonstrated “extraordinary circumstances and a special need for Senator Graham’s testimony on issues related to alleged attempts to influence or disrupt the lawful administration of Georgia’s 2020 elections.” May said there are “considerable areas” of the grand jury’s investigation that are exempt from the protections of the Constitution’s Speech or Debate clause, an argument that Graham’s lawyers pushed to shield him from having to testify as a sitting member of Congress.

On Friday, Graham’s lawyers appealed May’s ruling, asking the 11th Circuit to issue an emergency stay of May’s order to temporarily block Graham from testifying. The three-judge panel consists of two appointees of former President Trump and one appointee of former President Clinton.

Willis, who is leading the special grand jury’s investigation, previously indicated in court filings that the grand jury is interested in Graham’s calls to Georgia secretary of state Brad Raffensperger (R), who refused to do then-President Trump’s bidding of overturning election results in the battleground state. In her subpoena to Graham, the Fulton County district attorney cites at least one phone call where Graham allegedly urged Raffensperger to toss out some legally cast ballots.

When Graham attempted to quash the subpoena last month, his lawyers argued in a motion that his calls to Georgia officials fall under legislative activity and his “fact-finding and oversight responsibility” as the then-Senate Judiciary Committee chair and as a sitting senator, and therefore the Speech or Debate clause protects his activities.

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