Clarence Thomas temporarily pauses order requiring Lindsey Graham to testify to Georgia grand jury

Washington — Justice Clarence Thomas on Monday temporarily put on hold a lower court order that required Republican Sen. Lindsey Graham of South Carolina to testify before a Georgia grand jury investigating efforts to reverse the results of the 2020 presidential election.

Thomas, who oversees emergency matters from the U.S. Court of Appeals for the 11th Circuit, issued a stay of the federal district court’s order “pending further order of the undersigned or of the court.” Thomas on Saturday called for Fulton County, Georgia, investigators to respond to Graham’s emergency request for the court to block his testimony before the grand jury.

While Thomas can act on Graham’s application unilaterally, such matters are typically referred to the full court for its consideration.

Graham asked the Supreme Court to intervene in the dispute over the subpoena for his testimony before the Fulton County grand jury on Friday, arguing that absent action from the high court, he would soon be questioned by Fulton County District Attorney Fani Willis and her “ad hoc investigative body” about speech he said is protected by the Constitution’s Speech and Debate clause. 

The subpoena from Willis to Graham is part of an investigation she opened early last year after a phone call between former President Donald Trump and Georgia Secretary of State Brad Raffensperger was revealed. In an audio recording of the call, Trump was heard asking Raffensperger to “find” enough votes to make him the winner of the state’s presidential contest.

Willis issued the subpoena for Graham’s testimony this summer, which centered on phone calls he made to Raffensberger after the November election.

The subpoena initially required Graham to testify before the grand jury on Aug. 23, though the South Carolina senator asked a federal judge to quash the subpoena. Graham argued he was performing “legislative acts” when he called Raffensberger and therefore is shielded by the Speech and Debate Clause from having to testify.

U.S. District Judge Leigh Martin May ultimately ordered Graham to answer questions before the grand jury, while limiting the scope of the questioning. In her ruling, May agreed with Graham’s assertion that some of his “investigatory fact-finding” after the 2020 election was protected legislative activity. But May said in her September order that Graham could be questioned about “any alleged efforts to encourage Secretary Raffensperger or others to throw out ballots or otherwise alter Georgia’s election practices and procedures.”

“Likewise, the grand jury may inquire into Senator Graham’s alleged communications and coordination with the Trump Campaign and its post-election efforts in Georgia, as well as into Senator Graham’s public statements related to Georgia’s 2020 elections,” she said.

Graham appealed May’s decision to the 11th Circuit, which last week denied his emergency request to pause her order and paved the way for Graham to appear for questioning by Willis.

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