WASHINGTON — Judge Clarence Thomas on Monday temporarily shielded Sen. Lindsey Graham, a Republican of South Carolina, from having to answer questions from a special grand jury in Georgia investigating efforts to reverse the former’s election defeat. President Donald J. Trump in the state.
Judge Thomas’ brief order was an “administrative stay,” intended to give the court leeway to assess the senator’s urgent request for the Supreme Court to bar the grand jury from questioning him on the basis of the speech or debate clause of the Constitution and the doctrine of sovereign immunity.
On Saturday, Judge Thomas ordered prosecutors to respond to the request by Thursday. Such a request for a response is almost always a sign that the full court will rule on the case.
Prosecutors appear particularly interested in any efforts Mr Graham might have made to urge Georgia officials, including his Secretary of State, Brad Raffensperger, to address allegations of voting irregularities before Congress votes in January. 2021 to certify that President Biden was the legitimate winner of the presidential election.
Lawyers for Mr Graham said he was reviewing election-related issues as part of his role as chairman of the Senate Judiciary Committee at the time.
On Thursday, a unanimous three-judge panel at the United States Court of Appeals for the 11th Circuit in Atlanta declined to block a trial judge’s ruling that Mr Graham may be required to answer some but not all of the grand jury questions.
The panel, which included two judges appointed by President Donald J. Trump, drew a distinction between Mr. Graham’s activities in the investigation of alleged irregularities in the 2020 election and some of his other statements and conduct. Although the lower courts are divided on whether “an informal inquiry by an individual legislator acting without the authorization of a committee is protected legislative activity under the speech and debate clause,” he said. the panel, he would assume that the clause applies to such investigations.
But some other issues, the panel said, were fair game. “Activities that fall outside the scope of the clause include, for example, ‘cajoling’ executive officials and giving speeches outside of Congress.”
The panel said it would not block Mr. Graham’s questioning on “communications and coordination with the Trump campaign regarding his post-election efforts in Georgia, public statements regarding the 2020 election and efforts to” cajole” or “urge” Georgia election officials.
Even so, the panel said, Mr. Graham “may still seek to assert his speech and debate clause privilege if there is a dispute as to whether a concrete matter involves his finding of facts relating to certification. ” of the vote.
In his urgent request, Mr Graham said all of his activities were related to his legislative obligations and that the proposed questions were a “backdoor” attempt to address them.
“Without a suspended sentence, Senator Lindsey Graham will soon be questioned by a local Georgia prosecutor and her ad hoc investigative body about her ‘protected speech or debate’ related to the 2020 election,” Mr. Graham’s lawyers wrote in their query. “This will occur despite the Constitution’s commandment that senators ‘shall not be questioned’ on ‘any speech or debate’.”