While some of Senator Graham’s arguments to get out of testifying might have flown, he seems to have screwed himself with his public disputing of other witnesses’ characterizations of the Georgia phone calls.
Republican Senator Lindsey Graham cannot get out of the Fulton County grand jury subpoena, a federal judge ruled Monday morning, because the court finds the DA has shown “extraordinary circumstances” and a special need for Senator Graham’s testimony, due in part to Graham’s own denials of other witnesses’ accounts of the phone calls.
U.S. District Court Judge Leigh Martin May’s reasoning should send a chill through Trump World, because some of the reasoning is based on the Republican Senator’s own public statements about the 2020 election: “… his public statements following the 2020 election—is of great significance to the issue presently before the Court” and his public disputing of other witnesses’ “characterizations of the nature of the calls and what was said and implied.”
Public denials on TV can actually be used by a DA to make the point that the person who made the comments must have special knowledge.
The South Carolina Republican was trying to get out of the entire subpoena to appear as a witness before the August 23, 2022 Special Purpose Grand Jury, claiming he is shielded completely by the “speech or debate clause,” next the “doctrine of sovereign immunity protects him from testifying,” and lastly, Graham is a “high-ranking government official” and as such, shouldn’t be forced to testify about an attempt he witnessed to force state and local officials to break the law.
The Grand Jury is empaneled for the purpose of “investigating the facts and circumstances relating directly or indirectly to possible attempts to disrupt the lawful administration of the 2020 elections in the State of Georgia.”
The court denied his motion (my bold):
“After due consideration, and with the benefit of a hearing, the Court DENIES the Motion. In sum, the Court finds that there are considerable areas of potential grand jury inquiry falling outside the Speech or Debate Clause’s protections. Additionally, sovereign immunity fails to shield Senator Graham from testifying before the Special Purpose Grand Jury. Finally, though Senator Graham argues that he is exempt from testifying as a high- ranking government official, the Court finds that the District Attorney has shown extraordinary circumstances and a special need for Senator Graham’s testimony on issues relating to alleged attempts to influence or disrupt the lawful administration of Georgia’s 2022 elections.”
The court pointed out that Graham was trying to make this all about the two phone calls he allegedly made to Republican Secretary of State Brad Raffensberger after the 2020 election results came in, which he claims he did in his job as a legislator (searching for a reason to challenge the results). But no, the Judge writes that is not the only reason his testimony is required, and he knows this because it’s in the summons.
The jury is “entitled” to hear Graham testify about “any coordination either before or after the calls with the Trump campaign’s post-election efforts in Georgia.”
That’s law and order for you. And indeed, some of Graham’s arguments might hold water later because they are not settled law, but the point about his own special knowledge due to his public comments is a strong hurdle to overcome. It gets better (for America).
That’s not all, Sir. “… there are other areas of relevant inquiry on which Senator Graham has knowledge and may be questioned, including his public statements after the election, as well as conversations or interactions he had with the Trump Campaign or other third parties that are relevant to the grand jury’s investigation into attempts to disrupt the lawful administration of Georgia’s 2020 elections.”
Just in case anyone missed it, it is repeated: “The fact that Senator Graham may be questioned on topics outside the two phone calls—including (1) his potential communications and coordination with the Trump Campaign and its post-election efforts in Georgia; (2) his knowledge
of other groups or individuals involved with efforts to influence the results of Georgia’s 2020 election; and (3) his public statements following the 2020 election—is of great significance to the issue presently before the Court.”
The Court went on to deny that the Speech or Debate Clause applied here, because basically his actions were political, not related to his job.
“… the Supreme Court has recognized that there are any number of activities a member of Congress might engage in that unquestionably fall outside the scope of protected legislative activity because they are, in fact, ‘political in nature rather than legislative’.”
Graham’s arguments continued to get knocked down, with the judge not finding support “for Senator Graham’s suggestion that the doctrine of sovereign immunity applies to him in this case.”
And lastly, Graham’s attempt to get out of testifying because he is a high ranking official was denied because it doesn’t apply if the government can show “extraordinary circumstances” or a “special need” for calling that witness, which in this case the court finds they have because… Graham has denied other witnesses’ accounts, and this has apparently special knowledge that he must share:
First, Senator Graham has unique personal knowledge about the substance and circumstances of the phone calls with Georgia election officials, as well as the logistics of setting them up and his actions afterward. And though other Georgia election officials were allegedly present on these calls and have made public statements about the substance of those conversations, Senator Graham has largely (and indeed publicly) disputed their characterizations of the nature of the calls and what was said and implied. Accordingly, Senator Graham’s potential testimony on these issues—in addition to his knowledge about topics outside of the calls such as his alleged coordination with the Trump Campaign before and after the calls are unique to Senator Graham, and Senator Graham has not suggested that anyone else from his office can speak to these issues or has unique personal knowledge of them.
Politico reports that Graham will appeal. So while this is a win for justice right now, some of Graham’s arguments might get him out of certain testimony. But it’s hard to see him avoiding testifying all together.
Ms. Jones is the co-founder/ editor-in-chief of PoliticusUSA and a member of the White House press pool.
Sarah hosts Politicus News and co-hosts Politicus Radio. Her analysis has been featured on several national radio, television news programs and talk shows, and print outlets including Stateside with David Shuster, as well as The Washington Post, The Atlantic Wire, CNN, MSNBC, The Week, The Hollywood Reporter, and more.
Sarah is a member of the Society of Professional Journalists.