A district court judge had said Graham should appear, but narrowed the range of questions prosecutors could ask.
Without a stay of lower court rulings, Graham’s attorney, Donald F. McGahn told the Supreme Court“Senator Graham will suffer the specific harm he is asking to be prevented: to be questioned in state court about his legislative activity and official acts.”
McGahn, a former attorney for Trump, asked Judge Clarence Thomas, the judge assigned to hear 11th Circuit emergency applications, for at least a temporary stay. He said Graham could be required to testify “in less than a month.”
Thomas could pursue the request on his own or refer the matter to the full court.
The Atlanta grand jury investigating alleged interference in the 2020 presidential election has already heard testimony from multiple Trump lawyers, including Rudy GiulaniJohn Eastman and Boris Epchteyn. Willis also wants to interview former White House chief of staff Mark Meadows.
Graham would be asked to testify about calls he made to Georgia election officials shortly after Trump lost the election to Joe Biden. Prosecutors say Graham has “unique knowledge” of the Trump campaign and “coordinated multistate efforts to influence the results” of elections in Georgia and elsewhere.
But Graham said his actions were legitimate legislative activity protected by the Constitution’s “speech or debate clause.” Lawyers for the senator said they were told Graham was a witness – not a target – in the investigation.
Last month, a district court judge said prosecutors could not question Graham about parts of calls they were legislative inquiries. But the judge said Willis’ team could explore possible coordination with the Trump campaign in its post-election efforts in Georgia; public statements regarding the 2020 election; and any effort to “cajole” or “urge” Georgian election officials.
In its order Thursday, the 11th Circuit panel agreed with the lower court judge that these actions “could not qualify as legislative activities under Supreme Court case law.” Two of the panel’s three judges were appointed by Trump.
Graham can still enforce his rights, the court noted, if there is a dispute over certain issues.
McGahn said the case should not proceed without Supreme Court intervention. Where Debate clause, ‘failing to invoke or apply the standard for a reprieve, and without even mentioning sovereign immunity – begs for review,’ he wrote.
McGahn said the district attorney can continue the investigation without Graham by interviewing “other witnesses who are not constitutionally immune from the United States.”