A unanimous three-judge panel of the U.S. Court of Appeals for the 11th Circuit last week turned down an attempt by Graham to block a subpoena from Fulton County District Attorney Fani Willis (D), in which the lawmaker claimed a sitting senator is shielded from testifying in such investigations.
A district court judge had said Graham must appear, but narrowed the range of questions that prosecutors can ask.
Without a stay of the lower courts’ rulings, Graham’s lawyer, Donald F. McGahn, told the Supreme Court, “Sen. Graham will suffer the precise injury he is appealing to prevent: being questioned in state court about his legislative activity and official acts.”
Thomas is the Supreme Court justice designated to hear emergency requests from the 11th Circuit. His one-sentence order said the lower court’s ruling “is hereby stayed pending further order of the undersigned or of the Court.” Such language usually indicates that the court does not want the action being challenged to occur before the court can act.
Willis said in a previous interview with The Washington Post that the grand jury will not be active until after the midterm elections on Nov. 7. A subpoena for Graham’s testimony orders him to appear on Nov. 17.
Jeff DeStantis, a spokesman for Willis, said “we will decline to comment” on the Thomas order, pending the filing of prosecutors’ response to the Supreme Court.
The Atlanta grand jury investigating alleged 2020 presidential election interference has already heard testimony from several Trump lawyers, including Rudy Giuliani, John Eastman and Boris Epshteyn. Willis also wants to question former White House chief of staff Mark Meadows.
Graham would be asked to testify about calls he made to Georgia election officials soon after Trump lost the election to Joe Biden. Prosecutors say Graham has “unique knowledge” about the Trump campaign and the “multistate, coordinated efforts to influence the results” of the election in Georgia and elsewhere.
But Graham has said his actions were legitimate legislative activity protected by the Constitution’s “speech or debate clause.” The senator’s lawyers have said that they have been informed that Graham is a witness in — and not a target of — the investigation.
Last month, a district court judge said prosecutors could not question Graham about portions of the calls that were legislative fact-finding. But the judge said Willis’s team could explore coordination with the Trump campaign in its post-election efforts in Georgia, public statements regarding the 2020 election and any efforts to “cajole” or “exhort” Georgia election officials.
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In its order Thursday, the 11th Circuit panel agreed with the lower court judge that those actions “could not qualify as legislative activities under any understanding of Supreme Court precedent.” Two of the three judges on the panel were nominated by Trump.
Graham may still assert his rights, the court noted, if there is a dispute about certain questions.
Tom Hamburger and Ann E. Marimow contributed to this report.