FULTON COUNTY, Ga. — UPDATE: The hearing was held Wednesday, with Judge Leigh Martin May asking Sen. Lindsey Graham's attorneys for a further briefing on the arguments - due by noon on Thursday. She'll then give the District Attorney's Office until Friday for a response, and she expects to issue a written decision by later Friday or Monday.
Original story below
A hearing is set for Wednesday to determine if South Carolina Sen. Lindsey Graham will need to comply with a subpoena in Fulton County for his testimony in the special grand jury examination of the efforts by former President Donald Trump and his allies to overturn Georgia's 2020 election results.
Fulton County Judge Robert C. I. McBurney ruled last month Graham would need to testify before the special grand jury. The Republican senator is now attempting to have his subpoena dismissed - or quashed - in federal court.
The hearing is due at the federal District Court in Atlanta at 2 p.m.
Graham is considered a witness in the special grand jury proceedings, not the subject or target of the investigation.
His order to testify relates to Dec. 2020 phone calls to Georgia Sec. of State Brad Raffensperger in which the South Carolina senator, according to the order, "questioned Secretary Raffensperger and his staff about reexamining certain absentee ballots cast in Georgia in order to explore the possibility of a more favorable outcome" for Trump.
The court order asserts Graham made at least two calls to Raffensperger after the election. One was reported in Nov. 2020 in The Washington Post, in which the senator allegedly asked Raffensperger whether he "had the power to toss all mail ballots" in certain counties if their signature match rates were worse.
The Fulton County District Attorney's Office has said in court filings it wants to "question Senator Graham about 'the substance of the telephone calls' he made in Nov. 2020, Dec. 2-3, and specifically about 'the circumstances leading to his telephone calls,' what the Senator 'sought and obtained from the conversation,' and 'any coordination' with President Trump — in short, 'the motivation, preparation, and/or aftermath of those calls.'"
Attorneys for Graham are looking to have his subpoena quashed based on three arguments:
- That the constitution's Speech or Debate Clause "provides absolute protection against inquiry into Senator Graham's legislative acts;"
- That "sovereign immunity prevents a local prosecutor from hauling a U.S. Senator to face a state ad hoc investigatory body;"
- That "even without those constitutional guarantees, the District Attorney has not met her burden for compelling this testimony, because she has not shown the 'extraordinary circumstances' necessary to order a high-ranking federal official to testify."
U.S. Rep Jody Hice, a Georgia Republican, made somewhat similar arguments in his attempt last month to have his own subpoena quashed.
Federal Judge Leigh Martin May denied his request to have the subpoena quashed outright, but did say that as an elected member of Congress he could object to certain questions. She said, though, he would have to appear before the special grand jury, hear questions, and object to them as they came.
“We successfully removed this matter to federal court and filed the motion to quash to put the Fulton County District Attorney’s Office on notice that the U.S. Constitution prevents them from asking Members of Congress certain questions as part of their 'fishing expedition,' and Judge May acknowledged boundaries in her ruling,” Chris Gober, counsel to Congressman Hice, said in a statement last month.
Judge May is also hearing the arguments in Graham's motion on Wednesday.