The U.S. Court of Appeals for the 11th Circuit on Sunday temporarily put his appearance on hold, asking a lower court to consider whether Graham should be protected from answering some questions regarding his official duties as a U.S. senator.
The legal maneuvering is the latest sign of tension between prosecutors and high-profile witnesses in the Fulton County district attorney’s expansive criminal probe of alleged election interference by former president Donald Trump and his allies. After seeking repeated delays, Rudy Giuliani, Trump’s former lawyer, testified for six hours last week.
The panel has heard testimony from Georgia Secretary of State Brad Raffensperger (R) and his staff, Georgia Attorney General Christopher M. Carr (R), state lawmakers and local election workers. The state’s Republican governor, Brian Kemp, filed a 121-page motion last week seeking to kill a subpoena requiring his testimony.
Graham has called the Georgia inquiry “a fishing expedition” and argued that the constitution’s “speech or debate clause” protects lawmakers from answering questions regarding their official legislative duties. His lawyers say Graham has done nothing wrong and that they have been told Graham is a witness for the prosecution and not a target of the investigation.
Fulton County District Attorney Fani Willis (D) has expressed interest in questioning Graham regarding conversations he had in the wake of the 2020 election with Raffensperger, among other matters. In court documents, Willis has said that her inquiry is examining “the multistate, coordinated efforts to influence the results of the November 2020 election in Georgia and elsewhere.” The filing from her office Friday argued that delaying Graham’s appearance would “delay the revelation of an entire category of relevant witnesses,” pushing back the timeline of the investigation.
U.S. District Judge Leigh Martin May on Friday denied Graham’s request to postpone his testimony, as well as his request for an emergency hearing.
“Senator Graham’s arguments are entirely unpersuasive, and they do not even demonstrate a ‘substantial case on the merits,’” the judge wrote then, leading Graham’s lawyers to file an emergency appeal.
On Sunday, the appellate court ordered that the lower court review arguments regarding whether Graham is entitled to “a partial quashal or modification of the subpoena” requesting his testimony. Once that lower court review is complete, the appellate court said it would consider the matter.
While Graham continues efforts to kill his subpoena, a member of Congress who once raised similar objections, Rep. Jody Hice (R-Ga.), testified before the special grand jury for more than two hours last week, his lawyer said.
Like Graham, Hice had sought to kill a subpoena, citing constitutional protections of the speech or debate clause. Judge May also rejected Hice’s motion. Hice is a Trump ally who echoed false claims of widespread election fraud following the 2020 election and in his failed bid for Georgia secretary of state.
John Wagner and Matthew Brown contributed to this report.
