Graham also asked the court to block questioning from him on “other topics” suggested by outside groups that have addressed the subpoena dispute in friend-of-court briefings.
The lawsuit over the subpoena is back before U.S. District Judge Leigh Martin May of the Northern District of Georgia, after an appeals court on Sunday adjourned her ruling and Graham was ordered to appear before the grand jury.
May had previously rejected Graham’s request to outright quash the subpoena. The appeals court has since directed her to consider whether the subpoena should be partially quashed or amended in accordance with the Constitution’s Speech or Debate Clause, which shields lawmakers from some law enforcement actions when it relates to certain conduct that is part of the legislative duties of legislators.
Graham, however, has not scaled back his arguments in his latest briefing as to why he believes the entire scope of the subpoena should be seen as off-limits under the Constitution. He argued on Wednesday that Willis “should bear the burden of identifying the questions she wants to ask or, at the very least, the specific topics she wants to cover,” saying that “if there is any discussion of whether those subjects are allowed, she must provide evidence that those subjects are not protected by the clause.”
To judge otherwise is to allow the prosecutor to dodge the speech or debate clause by asking for an amorphous testimony and then, as a moving target, to bump into new or elaborated questions or problems at the senator; after all, the prosecutor is in the best position to know what she wants to ask (assuming this isn’t a disorganized fishing expedition)” Graham said.
“For that reason, if anyone proposes a further line of inquiry, Senator Graham will address it in his supplementary letter of reply.”
Graham said the behavior Willis has indicated that she is interested in questioning — including phone calls Graham had with election officials in Georgia about the state’s review of the ballots released in the 2020 presidential election — were part of an informal investigation that he performed as part of his duties as a US Senator.
The South Carolina Republican pointed to several examples of legislative activity he believes were related to the conduct in Georgia that the district attorney now wants to question him about. He cited research he did before voting to confirm Joe Biden’s election win, legislation he co-sponsored to amend the Election Count Act, and election-related hearings he chaired when he chaired the Senate Judiciary Committee.
“Since all the prosecutors have sought material central to this proprietary investigation and the motives behind it, complete destruction remains appropriate,” Graham’s briefing said. To the extent that the court disagrees, he wrote, the court must “at least partially quash or amend the subpoena to prohibit questions about the investigation and the motives behind it.”
Willis’s office has until next Monday to respond, and then Graham must have a response by August 31.