Georgia Prosecutor Urges Supreme Court to Allow Questioning of US Senator

Fulton County Georgia District Attorney Fani Willis in her office on Jan. 4, 2022. Ben Gray/AP Photo

A prosecutor in Georgia investigating possible crimes related to the 2020 presidential election is urging the U.S. Supreme Court to allow questioning of Sen. Lindsey Graham (R-S.C.).

Graham cannot show that he’s likely to suffer irreparable harm, Fulton County District Attorney Fani Willis, a Democrat, told the nation’s top court, pointing to rulings against Graham on the district and appeals court levels.

“In the course of several months of litigation, the district court has observed that Senator Graham has ’misconstrued‘ its holdings, ’plainly misrepresented‘ Supreme Court analysis, ’misunderstood’ or attempted to ‘avoid the objective facts,’ ‘dismissed’ inconvenient facts as ‘irrelevant,’ and advanced arguments ‘bereft of any meaningful support,’” Willis wrote in a brief to Supreme Court Justice Clarence Thomas. “The Eleventh Circuit then observed that the Senator has argued that he should be afforded legislative immunity for actions that ‘could not qualify as legislative activities under any understanding of Supreme Court precedent.’”

“The Senator has presented many of these same arguments in his application to Your Honor,” she added.

A special grand jury convened at the request of Willis to investigate possible crimes related to the election sent a subpoena earlier this year to Graham for his testimony. His challenges were largely denied by lower courts, prompting him to file an emergency application to the Supreme Court.

Thomas blocked the subpoena, at least temporarily, on Oct. 24 as he considers arguments from both sides.

Because the application cannot meet the threshold for a stay, Thomas should deny the request, Willis argued.

Sen. Lindsey Graham (R-S.C.) in Washington on May 25, 2022. Ting Shen/Pool/Getty Images

Graham’s position hinges on the U.S. Constitution’s Speech or Debate Clause, which says that members of Congress “shall not be questioned in any other Place” for any speech or debate they engage in, in either congressional chamber.

“The privilege protects only activities which are connected to actual legislative acts of the congressional member,” Willis said. While lower courts ruled Graham must answer questions, they also said some areas were off-limits because of the clause.

Portions of the calls Graham shared with Georgia Secretary of State Brad Raffensperger, a Republican, are an example because they don’t fall under the clause, the courts ruled. Willis urged Thomas not to diverge from the earlier rulings and claimed that the grand jury is in jeopardy of never questioning Graham if it does because it was empaneled to sit only until April 2023.

“Should Your Honor stay the application of the district court’s order until after all available appeals are exhausted, it is highly unlikely that the Grand Jury will be able to receive testimony in that timeframe, even if he is ultimately unsuccessful on appeal. And even if matters before the Eleventh Circuit were to move expeditiously, and then this Court were to deny certiorari with all due haste, there is essentially no possibility that the Grand Jury could receive Senator Graham’s testimony in time to pursue any investigative leads derived therefrom before the end of its term,” she said.

The filing met the Oct. 27 deadline set by Thomas when he received the application from Graham. There’s no set timeline for a ruling. Thomas can either decide the matter himself or refer it to the full court.