Freezing Senator’s Subpoena, Justice Thomas Wades Into Constitutional Controversy

He stays an order requiring that Senator Graham testify before a grand jury in Georgia.

AP/Josh Reynolds, file
Senator Graham at Boston, June 13, 2022. AP/Josh Reynolds, file

The decision by Justice Clarence Thomas to stay a lower court order that Senator Graham testify before a grand jury breathes new life into the lawmaker’s bid to evade a subpoena and tees up a constitutional clash before the high court.

The unsigned order freezes a ruling of the riders of the United States Court of Appeals for the 11th Circuit, who rejected Mr. Graham’s invocation of the national parchment’s speech and debate clause in connection with a summons in connection with a Georgia-based probe into interference in the 2020 election.

That clause, found in Article 1, Section 6, promises in reference to lawmakers that “for any Speech or Debate in either House, they shall not be questioned in any other Place.” Mr. Graham maintains that his conversations with Peachtree State officials transpired under this legally protective umbrella.

The Supreme Court has ruled that the speech and debate clause abides as long as the lawmaker is “acting in the sphere of legitimate legislative activity.” Judge Leigh Martin May held that this standard merited a “partial squashal” of Mr. Graham’s subpoena. 

This means that prosecutors will not be able to ask Mr. Graham about conversation topics deemed “legislative.” Discussions relating to efforts to “throw out votes” and “alleged communications and coordination with the Trump Campaign” would be fair game, however, as they do not relate to Mr. Graham’s day job.

Mr. Graham’s attorneys argued that compelling his testimony would cause “constitutional immunities” to be forfeited “the moment the local Georgia prosecutor questions him.” Mr. Graham has promised to “go as far as we need to go and do whatever needs to be done” to vindicate those senatorial privileges.

In affirming Judge May’s decision, the riders of the 11th Circuit acknowledged that “there is significant dispute about whether his phone calls with Georgia election officials were legislative investigations at all.” Mr. Graham swears to “take this as far as we need to take it.”

On that basis, the appellate court held back from voiding the subpoena in its entirety. Now, Justice Thomas, and potentially his colleagues, will decide if Judge May was too parsimonious in her reading of the clause. More briefing has been ordered for this week, indicating a percolating appetite for the case. 


The New York Sun

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