UPDATE: Senator Graham Asks SCOTUS to Block Subpoena Pending Appeal in GA Election Investigation

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

Senator Lindsey Graham on Friday asked Justice Thomas (as Eleventh Circuit Justice) and the Supreme Court to stay a district court order requiring him to comply with a subpoena issued by Fulton County Prosecutor Fani Willis to testify before a special grand jury in the investigation into attempts to disrupt the 2020 elections in Georgia.

Senator Graham argues that the subpoena violates the Speech and Debate Clause and sovereign immunity.

UPDATE: Justice Thomas stayed the district court order without referring the matter to the full Court, "pending further order of the undersigned or of the Court." The ruling means that Senator Graham won't have to testify, at least yet, while his appeal of the district court order moves forward.

The case started when Senator Graham called Georgia election officials after the 2020 elections. Willis subpoenaed Graham to testify before the special grand jury about the calls, and Graham sought to quash the subpoena in federal court, arguing that the subpoena violated the Speech and Debate Clause. (That Clause says that members of Congress "shall not be questioned in any other place" for "any Speech or Debate in either House.") After some back and forth, the district court partially quashed the subpoena: it ruled that the Clause protected Graham against compelled testimony over legitimate inquiries he made about the election related to his decision "to certify the results of the 2020 presidential election," but that the Clause did not protect him from testimony over any non-investigatory conduct. (In so ruling, the court said that Graham's investigations into the election were part of his "Speech or Debate in either House," that is, part of his job as a senator, but that his non-investigatory conduct was not.) The Eleventh Circuit denied Graham's emergency application to halt the district court's order.

Graham then filed for emergency relief at the Supreme Court. As to the Speech and Debate Clause, Graham argues that his phone calls were protected, because they were part of his investigation as a senator to determine whether to certify the 2020 election. He also says that the calls led to his co-sponsoring legislation to amend the Electoral Count Act. He argues that the district court's order requires courts to assess his motives in making the calls in order to determine whether they're protected by the Speech and Debate Clause, but that the Clause "forbids inquiry into acts which are purportedly or apparently legislative, even to determine if they are legislative in fact."

In other words, he says that the courts have to take his word for it that his "apparently legislative" acts are, in fact, legislative acts. (He claims that there's a circuit split on the question, and that the D.C. Circuit most recently ruled that courts lack authority to inquire into a member's motives.)

(For more on the Speech and Debate Clause, check out this Congressional Research Service report.)

As to sovereign immunity, Graham argues that he is immune because the subpoena was issued to him as a senator (and representative of the U.S. government), not a citizen.

Graham contends that if the Court doesn't stay the district court order pending appeal, he'll be forced to testify in violation of the Speech and Debate Clause and sovereign immunity--an irreparable harm.

Justice Thomas asked for a response by Thursday. The Court's ruling should follow shortly.