Prosecutors argue Graham should have to testify before grand jury in Georgia 2020 investigation

By Jason Morris and Nick Valencia, CNN

The Fulton County district attorney’s office is pushing back on Sen. Lindsey Graham’s ongoing efforts to quash a grand jury subpoena, saying his testimony is “essential” and could reveal more information about efforts by former President Donald Trump and his allies to overturn the 2020 election in Georgia.

Graham, a South Carolina Republican, is asking the 11th Circuit US Court of Appeals to put on hold a lower federal court order that Graham must testify to the grand jury, with the questions limited in scope.

The litigation over the subpoena has been on-going for months, with Graham initially moving to quash the motion in July. Prosecutors say that, after three failed attempts to quash his subpoena, Graham is repeating the same arguments. They are asking for the matter to be remanded back to a Fulton County Superior Court, which oversees the grand jury investigation.

“The Senator’s position, which would allow him to dictate when and where he will be immune from questioning or liability, renders him precisely the sort of unaccountable ‘super-citizen’ which the United States Supreme Court has taken care to avoid,” the Fulton County district attorney’s office said in the court filing with the 11th Circuit on Friday.

Graham’s attorneys argue that the lower court ruling did not offer enough protection from being questioned about his role as a US senator.

They say that his calls to Georgia officials after the election were legislative activity directly related to his committee responsibilities as the then-chairman of the Senate Judiciary Committee, and that his actions should be protected by the US Constitution’s Speech or Debate Clause.

Atlanta-based federal Judge Leigh Martin May, who denied Graham’s motion to quash his subpoena this summer, wrote in her decision that there were “considerable areas of inquiry” that were not legislative in nature that he should have to testify about.

Fulton County District Attorney Fani Willis, who is leading the investigation into 2020 election interference, wrote in previous court filings that she wants to question the senator about his phone calls to election officials.

Willis is particularly interested in a call Graham made to Georgia Secretary of State Brad Raffensperger when — according to Raffensperger — Graham hinted that Raffensperger should discard some Georgia ballots during the state’s audit.

Fulton County prosecutors on Friday said Graham’s claim that the call was intended to inform his vote on certifying the 2020 election amounts to “litigation-prompted hindsight” and “a product of lawyering, not legislating.”

Graham has repeatedly denied accusations of applying any pressure to Georgia officials. Even if he were to lose this appeal, he signaled he would take the case to the Supreme Court.

“I’ll go as far as I need to take it,” Graham told CNN last month. “I’m committed to standing up for the institution as I see it.”

The 11th Circuit will rule on Graham’s emergency motion. The appeals court has set Tuesday as deadline for his legal team to file an opening brief on the merits of the appeal.

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