Supreme Court Refuses To Block Fulton County Grand Jury Subpoena To Sen. Lindsey Graham

Sen. Graham Can Still Raise Objections To Particular Questions

Earlier today, the Supreme Court denied the emergency application of Senator Lindsey Graham (R-SC) for an injunction pending his appeal of the 11th Circuit’s ruling that he is required to appear before the Grand Jury convened by Fulton County, Georgia DA Fani Willis to investigate the attempt by FPOTUS to overturn the 2020 Presidential election results in Georgia.

In an unsigned order (with no dissents), the Supreme Court held that there was no basis for a stay pending appeal, because the lower courts had assumed that Sen. Graham’s assertion that his “informal investigative fact-finding” in conversations with Georgia Secretary of State Brad Raffensperger were part of his “legislative activity protected by the Speech or Debate Clause” of the Constitution and held that he “may not be questioned about such activities.” The Supreme Court further held that Senator Graham “may return to the District Court should disputes arise regarding the application of the Speech or Debate Clause immunity to specific questions.” On that basis, the Supreme Court held that “a stay or injunction is not necessary to safeguard the Senator’s Speech or Debate Clause immunity.”

What happens next?

Senator Graham will be required to physically appear in the Fulton County Grand Jury room, to face questions from the District Attorney’s office.

Will Senator Graham have to answer the questions?

It depends.

1. Under his Speech or Debate immunity, Senator Graham would not have to answer any questions that fall within the “informal investigative fact-finding” that he claims he was doing regarding the results and process of the Georgia 2020 Presidential election. This would allow him to avoid answering questions about questions that he posed to Secretary of State Raffensperger and his staff.
   
   As the District Court wrote in its order: “ [T]o the extent Senator Graham was merely asking questions about Georgia’s then-existing election procedures and allegations of voter fraud in the leadup to his certification vote, such questions are shielded from inquiry under the Speech or Debate Clause. In other words, Senator Graham cannot be asked about the portions of the calls that were legislative fact-finding.”

2. Under his Fifth Amendment immunity, Senator Graham would not have to answer any questions that might be used in any criminal prosecution of him with regard to his actions in Georgia in the aftermath of the 2020 Presidential Election. The Fifth Amendment provides broad protection. As the Supreme Court held in Hoffman v. United States in 1950, the “privilege afforded not only extends to answers that would in themselves support a conviction under a federal criminal statute but likewise embraces those which would furnish a link in the chain of evidence needed to prosecute the claimant for a federal crime.” (emphasis added).

It is hard for me to imagine a question that could be posed to Sen. Graham that would not fall into one of those two categories.

So what was the purpose of Sen. Graham taking this all the way to the Supreme Court?

Most likely, Senator Graham brought his appeal to the Supreme Court in order to delay the proceedings. If that was his goal, he has succeeded.

Will the public know what happens when Senator Graham is brought before the Grand Jury?

Probably not. Grand jury proceedings in Georgia are secret. The only way that the proceedings would become public would be if there was a dispute about a claim of privilege put forward by Sen. Graham during his testimony.