Criminal Justice & the Rule of Law Democracy & Elections

Lindsey Graham Can’t Ignore a Fulton County Subpoena

Anna Bower
Monday, August 15, 2022, 6:23 PM

A federal court is poised to decide whether to quash the Fulton County subpoena to the South Carolina senator.

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Editor’s note: This afternoon, Judge Leigh Martin May issued an order denying the motion by Sen. Lindsey Graham, R-S.C., to quash the subpoena. The order follows an oral argument that took place last Wednesday at the Richard B. Russell federal courthouse in Atlanta, Georgia. The following is a dispatch from that argument. 

Barely 24 hours after a Fulton County court played “Where in the World Is Rudy Giuliani with District Attorney Fani Willis and attorneys for the former New York mayor, a federal court in Georgia—in the same investigation—is getting set to play “Where in the World Is Lindsey Graham.”

If, that is, Graham’s lawyers ever show up. 

Unbeknownst to the judge, they are in a standoff of sorts—with me.

By “standoff,” I mean that the three of us are literally standing around, in one of those extravagant shows of Southern politeness, staring at one another expectantly, waiting for someone—anyone other than ourselves—to go first and move past the elevator doors that just pinged open on the ground floor of the Richard B. Russell federal courthouse in Atlanta. 

The genteel posturing of Bart Daniel and Matt Abee, attorneys with the South Carolina contingent of Graham’s ever-expanding legal team, finally ends when Daniel is rude enough to actually enter the elevator, after which we all crowd in and begin our ascent toward our shared destination: the 21st floor, where the senator from South Carolina is set to argue that he too can stiff a subpoena from Willis.

Like in the Giuliani case, the impasse between the senator and the district attorney’s office has been simmering since earlier this summer, when Willis subpoenaed Graham to appear before a special purpose grand jury as a part of her investigation into potential criminal interference in Georgia’s 2020 presidential election. Unlike with Giuliani, who has reportedly received a target letter from Willis’s office, the extent of Willis’s interest in Graham remains unclear. 

The subpoena appears to focus on two phone calls Graham made to Georgia Secretary of State Brad Raffensperger in the weeks following the November 2020 election. At the time, Raffensperger said that Graham had asked if he had the power to reject absentee ballots, which Raffensperger interpreted as a suggestion to toss out valid votes.

Now, in courtroom 2107, Graham’s legal team is set to argue a motion to quash the subpoena before Judge Leigh Martin May of the U.S. District Court for the Northern District of Georgia. The matter has been removed to federal court because Graham’s arguments are rooted in federal constitutional law, specifically his claim that the subpoena would offend the Constitution’s Speech or Debate Clause, which requires that “for any Speech or Debate in either House, [senators and representatives] shall not be questioned in any other Place.

As the South Carolina lawyers take their seats on the leftmost side of the room, the rest of Graham’s legal team trickles in to join them. First to arrive is Brian Lea, a partner at Jones Day. Then there’s his partner, Don McGahn, the former White House counsel and most recent addition to Graham’s team for the Georgia investigation.

In typical fashion, a throng of representatives from the Fulton County district attorney’s office stream in all at once. Three of them—Nathan Wade, Don Wakeford, and Will Wooten—take their place on the right side of the room, while the rest fan out among the audience.

A few minutes after 2 p.m., Judge May breezes into the courtroom. As a first order of business, she wants to address a few preliminary issues to “make sure that we’re all on the same page.” First, May announces that there appears to be no disagreement that the case was properly removed to federal court. Second, May says that there appears to be no disagreement that Graham bears the burden of proof to show that the subpoena should be quashed under the Speech or Debate Clause. Finally, she suggests that, if the court decides to reject the motion to quash, then she will remand the matter to superior court and any issues related to privileges or immunities will have to be worked out on a question-by-question basis.

With housekeeping issues behind her, May offers a polite warning before we begin in earnest: She’s going to ask questions—lots of them. That’s no surprise to regulars in the northern district of Georgia, who know May to be an especially studious and inquisitive judge. She tends to treat motions hearings like oral arguments, peppering counsel with focused questions and knotty hypotheticals as she scribbles on a stack of notes.

But the parties here today are hardly repeat players in courtroom 2107, and May knows it. “I do caution everyone not to get too wrapped up in what the questions are,” she says. “It’s just me working through the process.”

With that, Graham’s counsel, Brian Lea, makes his way to the podium. Immediately, he’s on defense, telling May that he objects to two of the three issues she raised at the outset. First, he objects to the presumption that Graham bears the burden of proof on the Speech or Debate issue. Second, he opposes her proposed procedure regarding what happens next if the subpoena is not quashed.

Before diving into those issues, Lea explains that Graham has three independent paths to defeat the subpoena: the Speech or Debate Clause of the U.S. Constitution; sovereign immunity, which shields federal government officials from suit in certain proceedings; and the “high-ranking official” doctrine, which precludes the forced testimony of high-ranking officials absent “extraordinary” circumstances.

May starts by asking Lea why he disagrees with her proposed procedure if the court rejects Graham’s motion to quash. Why isn’t it appropriate to remand to superior court and deal with any privilege issues on a question-by-question basis? Lea emphasizes that Graham’s arguments are premised on immunities. And immunities, he tells May, provide a blanket right not to be questioned at all. A question-by-question approach would violate that absolute protection. “We shouldn’t be playing whack-a-mole with the district attorney,” he says. 

May tests the depths of Lea’s commitment to this all-or-nothing approach: “So, if I don’t quash the subpoena, you don’t intend to make any objections to various questions based on immunities?” Lea assures her that, yes, Graham will absolutely object to individual questions if the case bounces back to superior court. “My point is that we shouldn’t be pressed from that position,” he huffs.

Then Lea proposes an alternative to May’s “question-by-question” approach: On remand, the court could issue an order with instructions for the superior court judge, outlining subject matter that should be off-limits during Graham’s grand jury appearance. But May can’t understand why she would have the authority to include such instructions in her order, or how she could formulate a set of guidelines without knowing which questions the district attorney’s office wants to ask. Still, she promises to “consider all the alternatives.”

Moving on, May directs Lea’s attention to the burden of proof. Pointing to an Eleventh Circuit case, Bryant v. CEO of DeKalb County, May hints that it’s “pretty clear” Graham bears the burden of proving his conduct was legislative. Lea pushes back, citing a D.C. Circuit case, Rangel v. Boehner, for the proposition that the party invoking jurisdiction must rebut an assertion of immunity under the Speech or Debate Clause. Lea says that, since the district attorney invoked jurisdiction to question Graham, the state should shoulder the burden.

Next, Lea pivots to the substance of his Speech or Debate Clause argument. He needs to convince Judge May that Graham’s conduct was legislative. He starts by narrowly defining the scope of that conduct, suggesting that it all boils down to the two phone calls with Raffensperger. “Everybody acknowledges” that those phone calls were about the “electoral process,” “verification of absentee ballots,” and “security,” he says.  

Lea claims that the “only dispute” about the legislative nature of these phone calls relates to statements made by Raffensperger, who has suggested that Graham wanted him to throw out ballots. But that goes to the senator’s motive, Lea contends. Citing Supreme Court decisions in Eastland v. United States Servicemen’s Fund and Bogan v. Scott-Harris, he insists that motive is “irrelevant” to whether an act is legislative.

May jumps in to ask about the component parts of the calls. She suggests that Lea’s “strongest” argument involves the “information gathering” questions Graham asked Raffensperger. Those inquiries, she says, could be described as fact finding or information gathering by a legislator, which would be covered by the Speech or Debate privilege. But other parts of the calls, she continues, could be described as political or nonlegislative. May rattles off a list of examples: “who set up the call,” “what Senator Graham was telling people to do,” “what instructions he was getting from the Trump campaign.”

In response, Lea urges the court to look at the predominant purpose of the calls, which he characterizes as legislative. The state can’t “backdoor” into the calls by divvying them up into component parts, he insists. May’s not buying it: “Under your argument, Senator Graham could start a call and fact-find about the election. And then the call could start going sideways.”

After Lea parries a few more questions along these lines, May raises the issue of motive. She recognizes that Eastland directs the court not to inquire into motive after it determines that an act is legislative. But May distinguishes that from the logically prior question: how to determine if something is political or legislative in the first place. “In looking at what type of act something is, there’s got to be some examination of why it is done,” she explains.

As Lea presses the court to look at the “cold, hard facts,” May interrupts to grouse about the lack of facts in the record. She wants more information about why Graham made the Raffensperger calls. In response, Lea tells May that she “misconceives how to look at facts.” Repeating that the court should look only to the underlying facts of the calls, he again insists that the calls were about “how to verify absentee ballots” and “electoral integrity.”

May shoots back at this, pointing out that the subpoena and material witness certificate aren’t just about the calls. They also allude to communications with the Trump campaign, she notes. Why, then, should the court’s inquiry be limited to the substance of the Raffensperger calls? In reply, Lea returns to his “backdoor” argument: The district attorney can’t end-run the Speech or Debate Clause by seeking to probe communications that are ancillary to protected legislative acts.

Lea sounds deflated at this point, but he spots an opportunity to disparage the district attorney’s argument that the Speech or Debate privilege cannot be asserted to shield a lawmaker from testifying as a witness in a criminal investigation of a third party. Even if a so-called third-party criminal exception applied to the Speech or Debate Clause, he says, that wouldn’t be relevant here. Pointing to Georgia Court of Appeals precedent in Kenerly v. State, Lea contends that special purpose grand juries are merely civil investigations under state law.

As Lea expounds upon Georgia’s special purpose grand jury procedure, May interjects to ask how criminal conduct could also be a legislative act. Lea remarks that, while the blanket protection of the Speech or Debate privilege might “let some people off the hook,” that’s the balance the Supreme Court decided to strike.

Finally, Lea pivots to sovereign immunity. He spends less than two minutes on it, arguing that it would “offend the sovereign” to drag Graham in front of a grand jury for questioning. He says the “criminal exception” to sovereign immunity would not apply here because the special purpose grand jury is a civil investigative body under Georgia law. May, looking bored, tells him to move on.

Next up is the high-ranking official doctrine. As Lea explains it, the doctrine prevents the compelled testimony of high-ranking officials absent “extraordinary circumstances.” Lea says the district attorney bears the burden of showing that Graham’s testimony is “essential” to their case and that the information they seek can’t be solicited from another source. “They certainly haven’t carried their burden,” Lea declares.

May isn’t convinced. In her view, the high-ranking official doctrine is set up to protect Graham from having to testify about mundane subject matter, like “how the mailroom worked.” There are obviously people lower down who could talk about that, she says. May distinguishes that scenario from the facts here, where Graham has first-hand knowledge of a conversation and there’s disputed recollections of what was said.

Now, after questioning Lea for more than an hour, May finally invites Donald Wakeford of the district attorney’s office to the hot seat. As Wakeford struts to the podium, May begins with a question about the scope of the subpoena. Is the district attorney’s office exclusively interested in the phone calls to Raffensperger, or is there more to the inquiry?

Wakeford provides a guarded response. He explains that the district attorney relied on the Raffensperger calls because they collectively presented the “easiest, most succinct way” to obtain a certificate of material witness. But the scope of the inquiry goes beyond the calls, he claims. He points to other matters alluded to in the certificate for material witness, including conversations with the Trump campaign and other parties, as well as “possible coordination” with those parties.

May, apparently unsatisfied by Wakeford’s response, gripes again about the underdeveloped record. “I’m left with a kind of amorphous idea that there may be additional subjects or knowledge that you have,” she says. Wakeford appeals to the principle of grand jury secrecy, explaining that the district attorney has sought to rely on information that is already in the public sphere. And, he adds, the information in the public sphere shows that “total quashal” is not appropriate.

As Wakeford walks through Graham’s public statements about the phone calls, May pipes up again to ask about the burden of proof. Predictably, Wakeford argues that the burden rests with the senator.  

Then Wakeford distinguishes between some acts, like a speech on the Senate floor, where it’s obvious that the conduct was legislative. But, he argues, this is a telephone call from a federal senator to a state executive officer, which is “far removed” from the legislative acts cited in the case law. May then wonders aloud if Graham could have been gathering information to figure out whether to vote to certify the election under the Electoral Count Act. Wakeford, in response, points to Graham’s public statements about why he voted to certify, which had “nothing to do” with his calls to Raffensperger. 

After May complains again about the sparse factual record, she directs Wakeford to move to the sovereign immunity issue. Hitting back against Lea’s argument that special purpose grand juries are merely “civil” grand juries, Wakeford launches into an extended discussion of Georgia’s special grand jury statute and related case law. Just because special purpose grand juries can’t indict, he says, does not render them civil investigations. “This is a criminal investigation and has been from the start,” he proclaims. 

Finally, Wakeford ends with the “high-ranking official” doctrine. Wakeford says that it’s clear the state needs Graham’s testimony because prosecutors already received a certificate of material witness from a state superior court judge, which requires a finding of materiality and necessity. Moreover, Wakeford argues, there’s no staffer for Graham who could provide information about the call. 

At this, May wonders aloud why the district attorney’s office needs Graham in the first place. “It sounds like you have a lot of information about these subjects,” she says. So why does the district attorney need him? In reply, Wakeford says the office needs Graham’s testimony because there is a dispute about what happened on the call. 

May interjects again: “And is that a possibility that the senator himself is subject to a potential criminal action?” Wakeford treads lightly here, stating that Graham “can provide information about the extent to which his call was coordinated” with other parties or activities to effect the administration of elections in Georgia. But his testimony is “not necessarily” to show that the call itself was a criminal act. 

As Wakeford walks back to his seat, Lea jumps back up to make a few points in reply. He stresses that the court has the authority to partially quash the subpoena if it finds that total quashal is not appropriate. Next, he’s back on the Speech or Debate Clause, arguing that state voting regulations are well within the jurisdiction of federal legislators. Finally, on the sovereign immunity issue, he again stresses that special purpose grand juries are civil investigations under established Georgia Court of Appeals precedent. 

Wakeford pops up from his seat to counter Lea’s claims. Unwilling to let Wakeford have the last word, Lea does the same. As I begin to wonder how long we’ll be stuck watching this game of “whack-a-mole,” Judge May moves to final remarks. She instructs the parties to submit further briefing on the burden-of-proof issue by the end of the week. 

With that, the proceedings are adjourned.

Anna Bower is Lawfare’s Legal Fellow and Courts Correspondent. Anna holds a Bachelor of Laws from the University of Cambridge and a Juris Doctorate from Harvard Law School. She joined Lawfare as a recipient of Harvard’s Sumner M. Redstone Fellowship in Public Service. Prior to law school, Anna worked as a judicial assistant for a Superior Court judge in the Northeastern Judicial Circuit of Georgia. She also previously worked as a Fulbright Fellow at Anadolu University in Eskişehir, Turkey. A native of Georgia, Anna is based in Atlanta and Washington, D.C.

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