The Georgia prosecutor leading an investigation into efforts by former President Donald Trump and his allies to overturn the 2020 election urged the Supreme Court on Thursday to clear the way for Republican Sen. Lindsey Graham’s testimony.
“The Fulton County Special Purpose Grand Jury seeks to question Senator Lindsey Graham about certain activities related to its ongoing investigation into possible criminal activity surrounding the 2020 general election in Georgia,” Fulton County District Attorney Fani Willis wrote in the new filing.
She emphasized that Graham’s efforts to delay his testimony would be “inevitably prejudicial to the administration of the grand jury investigation” and would “harm the public interest in the timely and effective resolution” of it.
The filing came in response to the South Carolina senator’s emergency request last week asking the courts to halt the testimony while the legal challenges play out. Graham has argued that he should not comply with the subpoena because his testimony is barred by the Constitution’s Speech or Debate Clause, which protects lawmakers from certain law enforcement actions for conduct related to their legislative duties.
If Graham prevails, critics fear it will encourage other members of Congress to make similar claims in an effort to shield speech that falls outside the protections of the Speech or Debate Clause. The clause reads that “for any speech or debate in either house,” members of Congress “shall not be questioned in any other place.”
Willis has indicated she wants to question Graham about calls he made to Georgia election officials after the 2020 election. Lawyers for the senator characterize the calls as “investigative phone calls” made in furtherance of a legitimate legislative activity intended to inform him about his upcoming certification decision.
On Monday, Judge Clarence Thomas, who oversees the lower courts involved in the case, temporarily blocked the testimony. Thomas’ move was an administrative stay, most likely issued to give the Supreme Court justices more time to consider the dispute. Thomas’ order also signaled that he would ultimately vote on the matter. His critics believe he should recuse himself from cases related to the last election because of the political activities of his wife, Virginia “Ginni” Thomas.
In the new filing, Willis claimed that people who participated in the calls have publicly indicated their understanding that Graham suggested or implied in the calls that Georgia Secretary of State Brad Raffensperger should throw out certain ballots or adopt procedures that would change the results of the state’s choice.
Lower courts had said that to the extent Graham made the calls to Georgia election officials as part of the fact-finding for congressional certification of President Joe Biden’s victory, that could be unconstitutional.
But the 11th Circuit US Circuit Court of Appeals said that “communications and coordination with the Trump campaign regarding its post-election efforts in Georgia, public statements regarding the 2020 election and efforts to ‘cajole’ or ‘exhort’ Georgia election officials” are not legislative activities protected by the Speech or Debate Clause.
Willis is leading a special grand jury investigation into Trump-aligned efforts to manipulate the results of the 2020 election in Georgia. Her investigation recently secured testimony from former U.S. Sen. Kelly Loeffler of Georgia and former White House counsel Pat Cipollone, CNN reported last week.