WASHINGTON — The Supreme Court on Tuesday refused to block a Georgia grand jury subpoena seeking testimony from Senator Lindsey Graham, Republican of South Carolina, about his activities in the aftermath of the 2020 presidential election.
The court’s order was a paragraph long and did not note any dissents. It said that Mr. Graham had been afforded substantial protections by lower courts, which had ruled that he did not have to testify on subjects related to his official duties.
“The lower courts assumed that the informal investigative fact-finding that Senator Graham assertedly engaged in constitutes legislative activity protected by the speech or debate clause” of the Constitution, the order said, “and they held that Senator Graham may not be questioned about such activities.”
But the Supreme Court’s order refused to stay rulings by lower courts that permitted questioning on other topics, and it noted that Mr. Graham remained free to object to questions that implicated his legislative activities.
“The lower courts also made clear 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,” the order said. “Accordingly, a stay or injunction is not necessary to safeguard the senator’s speech or debate clause immunity.”
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Fani T. Willis, the district attorney in Fulton County, Ga., seeks to question Mr. Graham about calls he made to Georgia’s secretary of state, Brad Raffensperger, about allegations of voting irregularities in November 2020. Mr. Graham’s lawyers said that he was reviewing election-related issues in his role as chairman of the Senate Judiciary Committee.
Lower courts had shielded Mr. Graham from some potential questions, saying that matters related to his legislative responsibilities were protected by the Constitution’s “speech or debate” clause. “For any speech or debate in either house,” the clause says of senators and representatives, “they shall not be questioned in any other place.”
But a unanimous three-judge panel of the U.S. Court of Appeals for the 11th Circuit, in Atlanta, ruled that Mr. Graham could be required to answer other questions from the grand jury.
The panel, which included two judges appointed by President Donald J. Trump, drew a distinction between Mr. Graham’s activities in investigating supposed irregularities in the 2020 election and some of his other statements and conduct. Though the lower courts are divided over whether “an informal investigation by an individual legislator acting without committee authorization is ever protected legislative activity under the speech and debate clause,” the panel said, it would assume that the clause applied to such inquiries made by Mr. Graham.
But other questions, the panel said, were fair game. “Activities that fall outside the clause’s scope include, for example, ‘cajoling’ executive officials and delivering speeches outside of Congress.”
The appeals court panel said it would not block questioning of Mr. Graham about “communications and coordination with the Trump campaign regarding its postelection efforts in Georgia, public statements regarding the 2020 election and efforts to ‘cajole’ or ‘exhort’ Georgia election officials.”
Mr. Graham, represented by Donald F. McGahn II, who served as White House counsel in the Trump administration, asked the Supreme Court to intervene, telling the justices that all of Mr. Graham’s work activities were related to his legislative obligations and that the proposed questions were a “backdoor” attempt to examine them.
Mr. McGahn wrote that after the phone calls to Mr. Raffensperger, Mr. Graham “relied on the information gained from the calls” to certify Joseph R. Biden Jr. “the legitimate president of the United States,” and to help sponsor legislation to amend federal elections law.
“Without a stay, Senator Lindsey Graham will soon be questioned by a local Georgia prosecutor and her ad hoc investigative body about his protected ‘speech or debate’ related to the 2020 election,” Mr. McGahn wrote in the filing. “This will occur despite the Constitution’s command that senators ‘shall not be questioned’ about ‘any speech or debate.’”
He added, “Without speculating about Senator Graham’s intent or motives, the district attorney cannot show that the senator’s actions here were anything but ‘legislative.’”
