Having lost a bid to avoid testifying to a grand jury investigation of efforts to overturn the 2020 election in Georgia, South Carolina Senator Lindsey Graham has been given a last-minute break.
On Sunday night, a judge of the 11th Circuit court of appeals issued a temporary stay on the Republican lawmaker’s testimony, scheduled for Tuesday, so that a lower court could resolve the arguments raised by Mr Graham’s emergency motion to enjoin the grand jury’s attempt to secure his testimony.
At issue is a phone call Mr Graham made to Secretary of State Brad Raffensperger in the days following the election.
According to Mr Raffensperger, the senator asked him whether he had the authority to throw out all mail-in ballots counted in certain counties, indulging one of the foundational falsehoods in Mr Trump’s effort to delegitimise Joe Biden’s victory.
Mr Raffensperger, who resisted the effort to overturn the election (and has since defeated a Trump-backed primary challenger to run for re-election), described the call in public at the time. His colleague Gabriel Sterling, who oversees the state’s voting systems, listened in on the call and said that it “might have gone a little to the edge of” what would be considered acceptable.
Mr Graham has admitted making the call, but denied he was specifically pressuring Mr Raffensperger and others to actually throw ballots out. Instead, he claims that he was asking about strengthening voter ID laws ahead of the runoff elections scheduled for the following January.
As he fights the subpoena calling him to testify about his actions, the latest development has seen an appeals judge send the case back to a district court “to determine whether [Mr Graham] is entitled to a partial quashal or modification of the subpoena to appear before the special purpose grand jury”.
Mr Graham’s appeal hinges on the constitution’s Speech and Debate Clause, which he claims means the infamous phone call is protected as part of his legislative duties as a Senator. The latest judgment acknowledges this defence and orders that its implications be determined in the district court.
But as Brookings Institution fellow Norm Eisen has pointed out, it also strongly implies that even if Mr Graham’s claim is upheld, the result will not necessarily fully exempt him from testifying to prosecutors; instead, it will just as likely mean that the scope of the questions they can ask him will be narrowed.
The prosecutors convening the grand jury have lately been calling Trump team heavyweights to testify in the case. They succeeded in securing the in-person testimony of Rudy Giuliani even after he dubiously claimed he could not attend because he had not been medically cleared to fly.
And scheduled to testify this week is Mr Giuliani’s erstwhile colleague Jenna Ellis, who worked alongside him on the ill-fated campaign of “stop the steal” lawsuits that failed in courts across the US in November and December 2020.