Justice Clarence Thomas put a temporary hold on the subpoena that required Senator Lindsey Graham (R-S.C.) to testify in front of a Georgia special grand jury looking into potential election interference in the state.
The hold keeps Graham from being forced to testify until the Supreme Court can rule on his petition. Thomas asked for a response from the prosecution by Thursday.
Prosecutors want to question Graham about calls he made to Georgia election officials shortly after the 2020 presidential election. Graham’s lawyers claim that the calls are protected under the Speech or Debate clause, which shields lawmakers for actions they take while acting as legislators. They further point out that Graham was the chairman of the Senate Judiciary Committee at the time and part of his responsibilities included reviewing election-related issues.
The three-judge panel for the US Court of Appeals for the 11th Circuit upheld a lower district court’s ruling that Graham could be compelled to testify as long as prosecutors did not ask him about portions of the calls that were related to legislative fact-finding, but could question him about post-election coordination with the Trump campaign, public statements and any alleged efforts to influence Georgia election officials.
Prosecutors say that Graham has unique knowledge about the Trump campaign and its alleged “multistate, coordinated efforts to influence the results of the election in Georgia and elsewhere.”
The now-delayed subpoena asked that Graham appear before the grand jury on November 17. In the emergency stay request, Graham’s lawyer Donald F. McGahn told the court that “Sen. Graham will suffer the precise injury he is appealing to prevent: being questioned in state court about his legislative activity and official acts,” because any appeal would have been reviewed after the November 17 deadline.
Justice Thomas, who wrote the one-sentence order that delayed the subpoena, ruled on the emergency stay because he is the Supreme Court Justice designated to hear emergency requests from the 11th Circuit. Emergency order stays are not an indication of how the court, or even the judge issuing them, is likely to rule.
A spokesperson for Fulton County District Attorney Fani Willis, who issued the subpoena, declined to comment on the order “pending the filing of prosecutors’ response to the Supreme Court.”