A federal appeals court on Sunday agreed to temporarily stay a lower court’s order requiring U.S. Sen. Lindsey Graham to testify before a special grand jury investigating possible illegal attempts to overturn then-President Donald Trump’s 2020 election defeat in Georgia.
The subpoena ordered the South Carolina Republican to appear before a special grand jury on Tuesday.
U.S. District Judge Lee Martin May last Monday denied Graham’s request to vacate his subpoena, and on Friday rejected his effort to delay her decision until he files an appeal. Graham’s attorneys then appealed to the 11th U.S. Circuit Court of Appeals.
On Sunday, a three-judge panel of the Court of Appeal ruled to temporarily suspend May’s refusal to quash the subpoena. The commission sent the case back to May to decide whether the subpoena should be partially quashed or modified because of protections granted to members of Congress by the U.S. Constitution.
Once May rules on the matter, the case will be sent back to the 11th Circuit Court for further review, according to the appeals court’s ruling.
Representatives for Graham did not immediately return messages Sunday seeking comment on the appeals decision. Fulton County District Attorney spokeswoman Fannie Willis declined to comment.
Willis began the investigation early last year, which was prompted by a Jan. 2, 2021, phone call between Trump and Georgia Secretary of State Brad Raffensperger. During that conversation, Trump suggested that Raffensperger could “find” the votes needed to overturn his slim loss in the state.
Willis and her team said they wanted to ask Graham about two phone calls he made to Raffensperger and his staff shortly after the 2020 general election. During those calls, Graham asked about “reviewing certain absentee ballots filed in Georgia to explore the possibility of a more favorable outcome for former President Donald Trump,” Willis wrote in the motion to compel him to testify.
Graham also “referred to allegations of widespread voter fraud in the November 2020 Georgia election, consistent with public statements made by prominent Trump campaign affiliates,” she wrote.
Election officials in Republican and Democratic states across the country, the courts and even Trump’s attorney general have found no evidence of voter fraud sufficient to affect the outcome of the election.
During a hearing earlier this month on Graham’s motion to quash his subpoena, Willis’ team said Graham would be able to provide insight into the extent of any concerted effort to influence the outcome of the 2020 general election in Georgia.
The Speech or Debate Clause of the US Constitution protects members of Congress from questions about official legislation. The 11th Circuit ordered May to determine whether Graham is “entitled to a partial vacating or modification of the subpoena” as a result.
Graham’s lawyers argued that the calls were made as part of his legislative duties, and the provision gives him complete immunity from having to testify in the case.
In her order last week, May said the clause does not protect actions that are political rather than legislative. Even if she were to agree that the calls “consisted entirely of legislative fact-finding” and were therefore protected, “there would still remain significant areas of potential testimony related to the grand jury investigation about which Senator Graham could be questioned , which in no way would fall under the protection clause,” she wrote.