Graham Follows Through On Challenge To Fulton County DA Subpoena

Sen. Lindsey Graham (R-SC) followed through on an agreement he reached with Fulton County district attorney Fani Willis last week. Graham is now seeking to move his challenges to the legality of the subpoena Willis issued in her special grand jury’s investigation to district court in Georgia, Graham’s lawyers said in a court filing on Friday.

In the filing, Graham’s lawyers said he seeks to remove the proceeding from Fulton County Superior Court to the U.S. District Court for the Northern District of Georgia.

Graham’s lawyers indicated that he accepted service of Willis’ subpoena last Wednesday. The filing said Willis’ subpoena was issued on July 26 and requires Graham’s testimony before the special grand jury on Aug. 23. Graham’s lawyers are asking to expedite consideration of his motion to quash the subpoena now that he has been summoned to testify later this month.

Graham’s lawyers argue that the proceeding is within the jurisdiction of the U.S. District Court for the Northern District of Georgia. They said Graham seeks to quash the subpoena because he argues that he has “absolute legislative immunity and privilege” under the Constitution’s speech or debate clause.

“In defense against being forced to testify in front of a state-court investigative body, Senator Graham raises constitutional issues that the Framers thought were ‘indispensably necessary’ to a functioning Republic — namely, that legislators ‘should enjoy the fullest liberty of speech, and that [they] should be protected from the resentment of every one, however powerful, to whom the exercise of that liberty may occasion offense,’” Graham’s lawyers wrote.

Graham’s lawyers also said he asserts the defense of federal sovereign immunity in challenging the subpoena.

“He raises the lack of extraordinary circumstances necessitating the testimony of a high-ranking government official,” Graham’s lawyers wrote. “In cases of this kind, Congress did not leave its Members to litigate federal and constitutional defenses in state court, but instead gave them the right of removal.”

Graham’s filing was signed by Atlanta-based counsel Brian Lea. However, the filing also notes that former Trump White House counsel Don McGahn’s application for pro hac vice in the case is “forthcoming.” McGahn currently works for the law firm Jones Day, and the filing indicates that Robert Luther, who also works for the same firm, is seeking to join the case as well.

The filing by Graham’s lawyers comes a week after the Trump ally reached an agreement with the Fulton County district attorney to move potential disputes to her subpoena to Georgia, following Graham’s previous request that a federal judge in South Carolina quash the subpoena.

Last month, a county judge in Georgia ruled that Graham must testify before the special grand jury in Willis’ investigation into former President Trump’s efforts to subvert the 2020 election results in Georgia. In addition to Graham, the grand jury subpoenaed several members of Trump’s legal team, who boosted efforts to steal a second term for Trump.

Graham is not the only GOP congressman who was subpoenaed in Willis’ investigation. Last week, a court filing revealed that the Fulton County DA issued a subpoena in June to Rep. Jody Hice (R-GA), who was part of a group of Trump allies who objected to certifying Joe Biden’s electoral victory on Jan. 6. Hice filed a motion to quash the subpoena shortly after receiving the subpoena.