Graham had asked a federal judge to quash a subpoena, arguing he was performing “legislative acts” when he twice called Georgia Secretary of State Brad Raffensperger after the election. Attorneys for Fulton County District Attorney Fani Willis argued in court that Graham was actually calling to “explore the possibility of a more favorable outcome” for Trump.
U.S. District Judge Leigh Martin May wrote in her order Monday that Graham’s position as a senator does not protect him from the special grand jury in Fulton County. “Individuals on the calls publicly suggested that Senator Graham was not merely engaged in legislative fact-finding, but instead suggested or implied that Georgia election officials changed their procedures or otherwise potentially changed the state’s results,” he wrote. May. May ordered Graham to appear as a witness before a special grand jury on August 23. “[T]the Court finds that the District Attorney has shown exceptional circumstances and a special need for Senator Graham’s testimony,” the judge wrote. May’s order includes 11 pages devoted to Graham’s argument that the Constitution’s speech or debate clause protects senators from being compelled to testify. He wrote that “the Supreme Court has expressly rejected a sweeping interpretation of the Speech or Debate Clause to include conduct merely “related” to the legislative process.” “The Supreme Court has recognized that there are any number of activities that a member of Congress can engage in that arguably do not fall within the scope of protected legislative activity because they are in fact ‘political in nature rather than legislative,’” May wrote. Graham’s office said in a statement Monday that it will appeal the decision. “Senator Graham did his due diligence before voting to certify the Election Counting Act – where he voted to certify the election,” Graham’s office said. “Although the district court recognized that Speech or Debate may protect some of Senator Graham’s activities, it nevertheless ignored the constitutional text and binding Supreme Court precedent.” The Fulton County District Attorney declined to comment on the ruling. Graham’s lawyers argued in their motion to quash the subpoena that he “engaged in essentially legislative fact-finding — both to help him shape election-related legislation, including in his role as then-chairman of the Judiciary Committee, and to to help inform the vote of certify the election.”
President Joe Biden won Georgia by less than 12,000 votes, or a margin of 0.5 percent. Graham has acknowledged the phone calls in the past and denied any allegations of wrongdoing, telling “Face the Nation” in January that he “asked how the system worked when it came to vote-by-mail and voting.” Graham is among Trump allies subpoenaed since May by a Fulton County grand jury, which also heard from Georgia state officials who rejected the former president’s efforts to overturn the election. Former New York Mayor Rudy Giuliani, who was Trump’s personal attorney after the election, is scheduled to appear before a special grand jury on Wednesday. Giuliani had asked the judge overseeing the special jury to postpone his appearance because he underwent heart stent surgery earlier this summer and cited a New York doctor who said Giuliani has not been cleared for air travel. The judge, Robert McBurney, denied the request and suggested that Giuliani go to Atlanta for his deposition “on the train or the bus or Uber, whatever it was.” The decisions ordering Graham and Giuliani come as Trump comes under increasing scrutiny from a series of high-profile investigations. On Friday, a New York judge blocked an attempt to dismiss tax fraud charges against Trump’s company and its former CFO. Two days earlier, Trump invoked the Fifth Amendment hundreds of times while attending a court-ordered deposition in a sweeping political fraud investigation led by New York Attorney General Letitia James. The filing came two days after the FBI searched Trump’s Mar-a-Lago residence for top-secret documents allegedly improperly removed from the White House. Federal agents in that case are investigating Trump for possibly violating three criminal laws, including the Espionage Act.

Graham Cates

Graham Cates is an investigative reporter covering criminal justice, privacy and information security issues for CBS News Digital. Contact Graham at [email protected] or [email protected]