Fulton DA Fires Back Against Graham's Emergency Application for Stay

Steven D. Schwinn, University of Illinois Chicago School of Law

The Fulton County DA filed her Response in Opposition to Senator Lindsey Graham's emergency petition to Justice Thomas (as Eleventh Circuit justice) to stay the lower courts' rulings ordering him to testify before the special grand jury investigating possible criminal activity surrounding the 2020 general elections in Georgia.

Justice Thomas could rule on Senator Graham's petition himself, or he could refer it to the whole Court. Given the sensitivities, look for him to refer it to the whole Court. Either way, a ruling could come any time.

We previously posted on the Eleventh Circuit's ruling, Senator Graham's emergency petition, and Justice Thomas's temporary stay here.

DA Fani Willis argues that the lower courts got it right on Senator Graham's claim of immunity under the Speech and Debate Clause. She wrote that the lower courts properly concluded that Senator Graham's calls to Georgia Secretary of State Brad Raffensperger were not "manifestly legislative." She said that the courts' solution--that Senator Graham could be asked about aspects of his calls that did not relate to his legislative activities, but not aspects of the calls that did--was sound.

As to Senator Graham's claim of sovereign immunity, DA Willis said he simply has no support.

While the Senator states that the subpoena was issued to "Senator Graham" rather than "citizen Graham," that is simply not true. The Grand Jury is aware that it cannot question "Senator Graham" about his indisputably legislative actions, and a great deal of time and effort has been expended to determine precisely the safest way to question the Senator and avoid improper questioning. Any questions will be addressed to topics outside legislative duties as defined by this Court. Because the Senator's arguments do not have a foundation in the law, as the district court repeatedly held, sovereign immunity does not afford him a basis for success on the merits of his arguments.