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Editor’s note: On November 1, 2022, the Supreme Court rejected Graham’s request to block his testimony. The Court also emphasized, however, that Graham may seek relief in a lower court if he objects to “specific questions” posed by investigators. The story below was originally published October 28.
We’re about to get another window into just how far this Supreme Court is willing to go to protect Republican politicians — this time, one of former President Donald Trump’s allies.
At the beginning of this year, Fulton County District Attorney Fani Willis asked a Georgia court to convene a special grand jury “for the purpose of investigating the facts and circumstances relating directly or indirectly to possible attempts to disrupt the lawful administration of the 2020 elections in the State of Georgia.” The investigators wish to question Sen. Lindsey Graham (R-SC) about his alleged involvement in Trump’s efforts to toss out the results of the 2020 election and anoint himself for a second term.
Among other things, Willis wants Graham to testify about two phone calls between the senator and Georgia Secretary of State Brad Raffensperger, during which Graham allegedly “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 former President Donald Trump.”
Graham, however, thinks he should be immune from testifying
After a few rounds of litigation, a federal appeals court concluded that Graham does need to testify, although it limited some of the topics that Willis and her team may ask Graham about during that testimony. Notably, two of the three judges on the appeals court panel that ruled against Graham were appointed by Trump.
Not to be deterred, Graham asked the Supreme Court late last week to save him from having to testify. The case is called Graham v. Fulton County Special Purpose Grand Jury.
Graham’s strongest argument is that the Constitution’s speech and debate clause, which provides that members of Congress “shall not be questioned in any other Place” for “any Speech or Debate in either House,” shields him from being called to testify. The Supreme Court has long held that this clause protects lawmakers, not just from probes into their conduct during literal speeches and debates on the congressional floor, but also from “inquiry into acts that occur in the regular course of the legislative process and into the motivation for those acts.” So, to the extent that Willis wants to probe Graham’s official work as a legislator, Graham cannot be called to testify on those matters.
But, as the lower courts determined, many of the topics Willis wants to dig into have no relation to Graham’s official duties as a federal lawmaker. Among other things, Willis is investigating whether Graham pressured “Secretary Raffensperger or others to throw out ballots or otherwise alter Georgia’s election practices and procedures.” Accordingly, the lower courts determined that Graham may be required to testify about at least some aspects of his conversations with Raffensperger and others.
Now, however, Graham hopes that the Supreme Court — where Republican appointees control a supermajority of the Court’s seats — will give him much more sweeping immunity from Willis’s probe. Even if Graham ultimately loses his case before the Court, it’s likely going to be a long time before the Georgia investigators get any useful information from Graham.
The speech and debate clause sometimes protects lawmakers even when they are probing a paranoid conspiracy theory
Let’s get one of the oddest aspects of the Graham case out of the way first. Sen. Graham argues that he was investigating “allegations of voter fraud in Georgia” that might have informed his decision to vote for or against certifying President Joe Biden’s victory in the 2020 election. There is no evidence of voter fraud in Georgia that could have even plausibly impacted the result of the last presidential election, though Trump pushed false claims of fraud during his efforts to overturn that election.
Graham, in other words, seems to argue that he spoke to Raffensperger and others because he was trying to decide whether Trump’s Big Lie was actually true — and because, if Trump’s lies were, in fact, true, that would inform how Graham voted on certifying Biden’s victory.
Under current law, there is genuine uncertainty about whether a lawmaker is protected by the speech and debate clause when they conduct this kind of personal investigation into how they should vote — as opposed to an official congressional inquiry overseen by a congressional committee or by a house of Congress as a whole. The United States Court of Appeals for the 10th Circuit has ruled that “informal information gathering by individual members of Congress” is not protected by the speech and debate clause. But other courts have determined that “field investigations by a Senator or his staff” are protected.
The lower courts that heard the Graham case took the “more protective view” of the clause — that is, they held that, to the extent that Graham was gathering information on how he should cast a particular vote on the Senate floor, his actions are protected.
But wait! The thing that Graham claims that he was investigating — whether fraudsters somehow stole the 2020 election from Donald Trump — is absurd. Does the speech and debate clause really apply to such a daft investigation? Oddly enough, the answer to this question is yes.
The seminal case is Eastland v. United States Servicemen’s Fund (1975), which involved a Senate subcommittee’s investigation into alleged “subversive activities” by nonprofit groups that opposed the Vietnam War. Mississippi Sen. James Eastland almost certainly had illegitimate motives when he launched this investigation — there is considerable evidence that its real purpose was to shut down groups that opposed the war by exposing and publicly shaming their donors.
Nevertheless, the Supreme Court determined that Eastland’s probe was protected by the speech and debate clause. The entire purpose of that clause, the Court explained, “is to ‘prevent intimidation of legislators by the Executive and accountability before a possibly hostile judiciary,’” and that purpose would be defeated if judges could strip a lawmaker of speech and debate protections because they deemed that lawmaker’s investigation to be malicious or unfounded.
So the fact that Graham claims he was conducting a truly ridiculous investigation does not diminish the protections he enjoys under the speech and debate clause. But it’s also very unlikely that all of his actions are protected by this clause.
It’s highly doubtful that most of Graham’s alleged actions are protected by the Constitution
Although the speech and debate clause prevents the judiciary from interfering with at least some actions by a sitting member of Congress, its protections are not absolute. The fact that a lawmaker is trying to decide how to vote on legislation targeting auto theft should not empower them to “investigate” this subject matter by stealing a car.
Indeed, as the Court said in Gravel v. United States (1972), “that Senators generally perform certain acts in their official capacity as Senators does not necessarily make all such acts legislative in nature.” Members of Congress, for example, frequently try to “cajole” and “exhort” executive branch officials to take certain actions or make certain policies. But Gravel held that “such conduct, though generally done, is not protected legislative activity.”
The broader rule that emerges from Gravel is that lawmakers enjoy some protection that goes beyond “pure speech or debate in either House, but ‘only when necessary to prevent indirect impairment of such deliberations.’” A lawmaker’s actions are protected if they are “an integral part of the deliberative and communicative processes” that lawmakers use to perform their legislative duties.
In United States v. Brewster (1972), moreover, the Court listed some activities that are common parts of a lawmaker’s official duties, but that are not “legislative” in nature and thus are not protected. These include “a wide range of legitimate ‘errands’ performed for constituents, the making of appointments with Government agencies, assistance in securing Government contracts, preparing so-called ‘news letters’ to constituents, news releases, and speeches delivered outside the Congress.” As Brewster explained, lawmakers are not protected when they perform actions that “are political in nature rather than legislative.”
Given this framework, there are some actions Graham might have taken in his conversations with Raffensperger and other people in Georgia that may be protected by the speech and debate clause. Suppose, for example, that Graham called up Raffensperger and said, “Hey, I’m concerned about all this talk about voter fraud, should I be worried about that when I vote to certify this election?” That sort of question clearly concerns Graham’s legislative duties, and thus is protected by speech and debate, under the more expansive (but still contested) reading of the clause.
But Graham allegedly did far more than ask about whether he should vote to certify the 2020 election. As a federal court explained, Graham is also accused of “suggesting or implying that Georgia Secretary of State Raffensperger should throw out ballots or otherwise adopt procedures that would alter the results of the state’s election.” If Graham did, indeed, apply such pressure to Raffensperger, that is akin to the kind of cajoling or exhortation of public officials that, under Gravel, is not protected speech and debate.
Similarly, Graham is accused of coordinating his alleged efforts with the Trump campaign. Again, to the extent that Graham spoke to campaign officials to investigate whether he should vote to certify the 2020 election, those conversations could be protected. But, to the extent that he was seeking to align his political strategy with Trump’s, his actions “are political in nature rather than legislative,” and thus unprotected.
The lower courts drew similar lines in determining which matters Graham could be required to testify about. They concluded, for example, that “to the extent Senator Graham was merely asking questions about Georgia’s then-existing election procedures and allegations of voter fraud in the leadup to his certification vote, such questions are shielded from inquiry under the Speech or Debate Clause.”
Conversely, the lower courts ruled that “to the extent Senator Graham suggested that Georgia election officials take certain actions or alter their procedures,” Graham must answer questions from Willis’s probe.
It’s likely to be a long time before Willis extracts any useful information from Graham
The lower courts’ decisions in Graham are nuanced and thoughtful. On the single most difficult legal question presented by the case — whether an individual lawmaker’s informal investigation can be protected by speech and debate — the lower courts ruled in Graham’s favor. And the framework adopted by these lower courts was signed off on by two Trump judges.
There is little need, in other words, for the Supreme Court to weigh in on this case. And it is entirely possible that it will not. Although the GOP-dominated Court was highly protective of Trump while he was in office, it’s shown much less desire to shut down probes into Trump’s personal conduct since he left office.
Should the justices decide to take up the Graham case, however, that could delay Willis’s probe for quite some time. In the worst-case scenario for Willis, the Court could rule that Graham is completely protected from having to testify on any matter. And even if the Court ultimately embraces the more thoughtful approach laid out by the lower courts, it could potentially delay Graham’s testimony for months while it considers the case.
Even if Willis’s probe is allowed to move forward, Graham’s lawyers still have plenty of tricks they can use to frustrate the investigation. Because the lower courts determined that Graham is immune from some questions Willis’s team might ask him, Graham’s lawyers are likely to raise a raft of objections to whatever questions Graham is asked — and there will most likely need to be additional litigation to determine which questions fall on the permissible side of the line.
But, assuming that the Supreme Court does not interfere, Graham will need to answer at least some questions about his alleged involvement with Trump’s efforts to overturn the 2020 election.
