ATLANTA (AP) — Prosecutors in Atlanta said they need a special grand jury talk to US Senator Lindsey Graham because he might be able to give you some insight into the extent of any coordinated effort to influence the results of the 2020 general election in Georgia.
Fulton County Senior Deputy District Attorney Donald Wakeford made that argument Wednesday during a federal court hearing on a request by Graham to vacate his citation. Graham’s attorney, Brian Lea, argued that Graham’s position as a senator shields him from having to appear before a special grand jury in the investigation into whether former President Donald Trump and his allies committed crimes as they sought to reverse their narrow election loss in Georgia.
Graham’s attorneys, including Don McGahn, who served as White House counsel under Trump, successfully moved the question of whether the subpoena should be vacated from Fulton County Superior Court to federal court.
US District Judge Leigh Martin May said she expects to rule on Friday but may take until Monday to decide whether Graham should testify.
Fulton County District Attorney Fani Willis opened her investigation early last year and a special grand jury with subpoena power sat down in May at her request. The special grand jury began hearing from witnesses, including Georgia Secretary of State Brad Raffensperger, in June.
Willis indicated early on that she was interested in a phone call between Graham and Raffensperger in November 2020, shortly after the elections. Raffensperger said at the time that Graham asked her if she had the power to reject certain absentee ballots and that she interpreted it as a suggestion to discard legally cast ballots.
Willis wrote in a court filing last month that Graham made at least two phone calls to Raffensperger and members of his staff in the weeks after the 2020 general election.
During those calls, he “questioned Secretary Raffensperger and his staff about re-examining certain absentee ballots cast in Georgia to explore the possibility of a more favorable outcome for former President Donald Trump.” Willis wrote.
Graham also “referenced allegations of widespread voter fraud in the November 2020 election in Georgia, consistent with public statements made by known Trump campaign affiliates,” he wrote.
Lea argued that the US Constitution provides absolute protection against Graham from being challenged on legislative acts. She also said that “sovereign immunity” protects a senator from being summoned by a state prosecutor and that Willis has not shown the extraordinary circumstances necessary to compel a high-ranking official to testify.
Graham had to decide whether to vote to certify Georgia’s votes and has since also proposed election-related legislation, so the phone calls were part of his legislative duties, Lea argued.
Wakeford said that while Willis’ team is interested in the phone calls, that’s just a starting point. He also disputed the idea that the phone calls were solely about legislative issues, saying Graham was trying to make some changes to the way Georgia handled absentee ballots ahead of the January 2021 runoff election.
May peppered both sides with questions during the two-hour hearing, but cautioned lawyers against reading too much into her cross-examination, explaining that this is how she makes sure she understands the issue.
If May doesn’t drop the subpoena entirely, Lea asked her to at least set guidelines for what Graham can be asked before the special grand jury. Wakeford asked him not to vacate the summons and to remand the matter to the Fulton County Superior Court. He said the two sides can negotiate what topics can be covered and any disputes based on federal principles can go back to May.
Wakeford’s proposal mirrors what May ordered when U.S. Representative Jody Hice defied her subpoena to testify before the special grand jury. But May said she wouldn’t necessarily do the same in this case, noting that Hice’s lawyers had agreed to those terms.
A group of six former federal prosecutors, including former Massachusetts Governor Bill Weld, filed a “friend of the court” brief Wednesday in the case opposing Graham’s motion to vacate his subpoena. They cite their collective decades of experience and knowledge on the issues the senator raises.
“The citation reflects a specific investigation looking for unique evidence that is highly relevant to an ongoing criminal investigation, rather than a fishing expedition or intrusion on legislative conduct,” their report says.
May instructed Graham’s attorneys to respond to that brief by noon Thursday and told Willis’ team to respond to Graham’s response by 9 am Friday.