This week, federal Judge Leigh Martin May established what journalist Kyle Cheney characterized as an expedited hearing schedule for coming weeks following a ruling by the 11th Circuit Court of Appeals for further deliberations over a subpoena demanding testimony from Sen. Lindsey Graham (R-S.C.).
That subpoena called for Graham’s testimony as part of the ongoing criminal investigation Fulton County District Attorney Fani Willis is leading into pro-Trump election interference in Georgia after the 2020 presidential race. The appeals court suspended a ruling mandating Graham’s testimony alongside its directions for further consideration of relevant issues. The court explained the district court was to “determine whether [Graham] is entitled to a partial quashal or modification of the subpoena to appear before the special purpose grand jury based on any protections afforded by the Speech or Debate Clause of the United States Constitution.” Quashal is a legal team that would mean the invalidation of the subpoena — by “quashing” it.
“Consistent with the Order from the Eleventh Circuit Court of Appeals, Senator Graham has until 9:00 AM on Wednesday, August 24, 2022, to file a Motion as to exactly which questions and/or categories of information he is requesting the Court to address in an Order to partially quash the subpoena,” May explained Monday. In other words, the issue at hand is evidently what specific areas of potential inquiry Graham wants rhetorically walled off.
Willis will have until August 29 at 9:00 a.m. to file a response, and Graham is permitted to file a reply after that filing, which is due by August 31 at the same time as the other materials. “The arguments should address whether, and to what extent, certain alleged conduct (including specific lines of inquiry on the telephone calls) is shielded from questioning under the Speech or Debate Clause,” the judge explained. May also said the filings should deal with whether informal actions by members of Congress that could be characterized as fact-finding and potentially relevant to their formal legislative work are protected under those Constitutional provisions.
Ahead of the appeals court’s decision to undo the lower court’s mandating of his questioning, Graham was originally set for testimony this Tuesday, so Graham’s defense barely made the cut before facing grand jury scrutiny. Graham is under investigation in Willis’s probe in connection to communications after the last election between the Senator and Georgia Secretary of State Brad Raffensperger, to whom Graham evidently raised the prospect of discarding entire counties’ caches of mail-in ballots from the 2020 elections: a move that would have, of course, meant dumping legally cast votes. Previously, May refused to temporarily suspend her previous ruling mandating Graham’s testimony, but she wasn’t the last word on the question — the appeals court was also set to decide on the arguments Graham presented.
May herself previously expressed doubt at the legitimacy of Graham’s idea that Constitutional protections found in the Speech or Debate Clause for legislative activities extended to his communications with Raffensperger. Accepting certain contentions from Graham would “allow any sitting senator to shield all manner of potential criminal conduct occurring during a phone call merely by asserting the purpose of the call was legislative fact-finding — no matter whether the call subsequently took a different turn,” May said. After May’s court finishes dealing with the arguments Graham and Willis will be presenting in coming weeks, the 11th Circuit Court of Appeals will further consider the matter. Willis previously expressed concerns about extended delays in successfully obtaining Graham’s testimony creating an impairment to the grand jury’s work. Interest in the Senator doesn’t stop with his own info; he could also provide details about further areas for investigation, which Willis can’t pursue without knowledge of them.