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Sen. Graham challenges 2020 Georgia election probe subpoena

Georgia Election Investigation, Lindsey Graham
Ting Shen/AP
Pool Bloomberg
FILE - Sen. Lindsey Graham, R-S.C., listens during a hearing on the fiscal year 2023 budget for the FBI in Washington, on May 25, 2022. Attorneys for Graham said in a court filing on July 13, he wasn't trying to interfere in Georgia's 2020 election when he called state officials to ask them to reexamine certain absentee ballots after President Donald Trump's narrow loss to Democrat Joe Biden. (Ting Shen/Pool Photo via AP, File)

U.S. Sen. Lindsey Graham is challenging a subpoena to testify before a special grand jury that's investigating whether then-President Donald Trump and others broke any laws when they tried to overturn Joe Biden's win in Georgia.

Graham, a Republican from South Carolina, received a subpoena that was issued on July 26 and orders him to appear before the special grand jury to testify on Aug. 23, his lawyers said in a court filing. Graham is seeking to have the challenge to the subpoena heard in federal court in Atlanta rather than before the Fulton County Superior Court judge who's overseeing the special grand jury.

The senator is one of the Trump allies who Fulton County District Attorney Fani Willis wants to question as part of her investigation into what she alleges was "a multi-state, coordinated plan by the Trump Campaign to influence the results of the November 2020 election in Georgia and elsewhere."

Graham had said repeatedly that he would fight the subpoena once he received it, which happened last week, according to his lawyers. He has denied meddling in Georgia's election.

In a court filing last month, Willis, a Democrat, wrote that Graham made at least two telephone calls to Georgia Secretary of State Brad Raffensperger and members of his staff in the weeks after Trump's loss to Biden, asking about reexamining certain absentee ballots "to explore the possibility of a more favorable outcome for former President Donald Trump."

When he made those calls, Graham "was engaged in quintessentially legislative factfinding — both to help him form election-related legislation, including in his role as then-Chair of the Judiciary Committee, and to help inform his vote to certify the election," his lawyers wrote in a court filing on Friday.

Graham's lawyers cite a provision of the U.S. Constitution that they say "provides absolute protection against inquiry into Senator Graham's legislative acts." They also argue "sovereign immunity" prevents a local prosecutor from summoning a U.S. senator "to face a state ad hoc investigatory body." And they assert that Willis has failed to demonstrate "the 'extraordinary circumstances' necessary to order a high-ranking federal official to testify."

Willis' office will respond in court and expects Graham to testify before the special grand jury, spokesperson Jeff DiSantis said.

Given that Graham has been summoned to testify on Aug. 23, his lawyers asked for expedited consideration of his motion to quash. The judge granted that request, setting a hearing for Aug. 10.

Graham had previously filed a federal court challenge in South Carolina to try to stop Willis' efforts to compel him to testify. Before a judge there could hold a hearing, he withdrew that case and agreed to file any challenges to a subpoena in the investigation in either state superior court or federal court in Georgia, according to a court filing.

U.S. Rep. Jody Hice, a Georgia Republican, filed a federal court challenge similar to Graham's after he received a subpoena to testify before the special grand jury. After hearing arguments from his lawyers and from Willis' office, a federal judge last week declined to quash his subpoena.

U.S. District Judge Leigh Martin May, who is also assigned to hear Graham's challenge, sent the matter back to Fulton County Superior Court, saying that there are at least some questions that Hice may be compelled to answer. If disagreements arise over whether Hice is protected under federal law from answering certain questions, he can bring those issues back to her to settle, she said.

Willis has confirmed that the investigation's scope includes a Jan. 2, 2021, phone call between Trump and Raffensperger during which Trump urged Raffensperger to "find" enough votes to overturn his loss in the state.

"I just want to find 11,780 votes, which is one more than we have," Trump said during that call.

Trump has denied any wrongdoing and has repeatedly described his call to Raffensperger as "perfect."

Willis is also interested in false allegations of election fraud made by former New York mayor and Trump attorney Rudy Giuliani and others during Georgia legislative committee meetings in December 2020. Jacki Pick Deason, a Dallas-based lawyer and podcaster, spoke at one of those meetings on Dec. 3, 2020.

Willis is trying to compel Deason's testimony. Because she lives outside Georgia, Willis has to use a process that involves getting a judge in Texas to order her to appear. A judge in New York has already ordered Giuliani to testify next week.

In a court filing in Texas last week, Deason argued that she shouldn't be ordered to testify. She cited alleged flaws with the paperwork Willis filed seeking her testimony, argued that a summons to appear before a Georgia special grand jury is not recognized in Texas and said that the demand for her appearance is based on a false assertion that she was a lawyer for the Trump campaign. She also said that it would be an undue burden for her to travel to Atlanta on days when the special grand jury is meeting in August because of professional obligations and other commitments.


Associated Press writers Meg Kinnard in Columbia, S.C., and Jamie Stengle and Jake Bleiberg in Dallas contributed to this report.