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Appeals court to Lindsey Graham: Time to testify in election probe

Lindsey Graham has fought tooth and nail to avoid testifying in Georgia's election probe. His efforts clearly aren't going well.


It was nearly four months ago when a special grand jury hearing evidence in an investigation into possible 2020 election interference in Georgia issued subpoenas to several people close to Donald Trump — including Republican Sen. Lindsey Graham. As regular readers may recall, almost immediately thereafter, the South Carolinian’s lawyers said Graham didn’t intend to honor the legal summons.

What followed was a series of court cases in which the GOP lawmaker fought tooth and nail to avoid testifying in the case. As NBC News reported, Graham’s efforts keep failing.

A federal appeals court on Thursday ruled that Sen. Lindsey Graham, R-S.C., must testify before a Georgia grand jury examining possible election interference in the state two years ago. The ruling is a win for Fulton County District Attorney Fani Willis.

In case anyone needs a refresher, Graham’s perspective is of great interest for a reason. About a week after the 2020 presidential race was called, Brad Raffensperger, Georgia’s Republican secretary of state, accused the senator of contacting him directly to question the validity of legally cast ballots. Graham soon after conceded that the two men spoke, but he called the underlying allegation “ridiculous.”

But Raffensperger held firm, telling CNN in November 2020 that the “implication” of Graham’s message was “Look hard and see how many ballots you could throw out.”

With this in mind, it was hardly a shock when the Fulton County District Attorney’s office, investigating possible election interference, said it wanted to hear Graham’s side of the story.

The Republicans’ lawyers have leaned heavily on the Constitution’s speech and debate clause, which, generally speaking, is intended to extend specific legal protections to sitting lawmakers: Whatever they say as part of their legislative duties can’t be used as the basis for lawsuits.

A federal district court rejected the argument in August, saying investigators in Georgia have legitimate reasons to ask whether there was “any coordination either before or after the calls with the Trump campaign’s post-election efforts in Georgia.” The same court added that Graham could be asked about his public statements regarding the election, and any efforts to “cajole” or “exhort” election officials in the state.

So, the senator took his case to the 11th Circuit Court of Appeals, where a three-judge panel unanimously agreed that Graham’s argument falls short. From NBC News’ report:

“Senator Graham has failed to demonstrate that he is likely to succeed on the merits of his appeal,” and a stay blocking from his testifying should be lifted, the appeals court ruled. The judges agreed with a lower court’s ruling that Graham’s view of those constitutional protections were too broad, and that he should be able to answer some key questions from the grand jury, including whether he consulted with Trump’s campaign before making the calls.

“Senator Graham has failed to demonstrate that this approach will violate his rights under the Speech and Debate Clause. Even assuming that the Clause protects informal legislative investigations, the district court’s approach ensures that Senator Graham will not be questioned about such investigations,” the ruling said.

Just as notably, the appellate panel agreed that “there is significant dispute about whether his phone calls with Georgia election officials were legislative investigations at all.”

In other words, Graham’s argument isn’t legally sound — and it might not even be true.

Two of the three judges who ruled in this case were appointed by Trump. Graham voted to confirm both of them to the bench.

Graham’s attorneys have emphasized that the senator is not a target of the investigation in Georgia, but rather, “simply a witness.” That may very well be true, and I’ve seen no evidence to the contrary. It does raise questions, however, about why the senator has fought so vehemently against cooperating.