Lindsey Graham Announces Crafty Plan To Claim Legislative Immunity For Efforts To Ratf*ck Georgia Ballots

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(Photo by Demetrius Freeman-Pool/Getty Images)

Earlier this week, multiple Trumpland lawyers got their tickets punched for the Georgia subpoena club when Fulton County District Attorney Fani Willis named them as material witnesses in the effort to overturn the vote in her state. Willis also invited South Carolina Senator Lindsey Graham to come in for a chat with the grand jury about “at least two telephone calls to Georgia Secretary of State Brad Raffensperger and members of his staff” regarding “certain absentee ballots cast in Georgia in order to explore the possibility of a more favorable outcome for former President Donald Trump.”

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The senator immediately put out a statement saying he’d refuse to cooperate.

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“This is all politics,” he fumed. “Fulton County is engaged in a fishing expedition and working in concert with the January 6 Committee in Washington. Any information from an interview or deposition with Senator Graham would be immediately shared with the January 6 Committee.”

Neither Graham nor his lawyers, Bart Daniel and Matt Austin of Nelson Mullins, offered proof for these allegations. And, as the senator surely knows, having practiced law since 1981, grand jury testimony is secret. But he’s not letting a little thing like objective reality get in the way of this rant.

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“As Chairman of the Senate Judiciary Committee, Senator Graham was well within his rights to discuss with state officials the processes and procedures around administering elections,” he blustered. “Should it stand, the subpoena issued today would erode the constitutional balance of power and the ability of a Member of Congress to do their job. Senator Graham plans to go to court, challenge the subpoena, and expects to prevail.”

Yes, well, about that …

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As Axios was first to report, Superior Court Judge Robert McBurney, who is overseeing the special grand jury and signed off on the subpoenas, issued a ruling on Wednesday that augurs poorly for Senator Graham’s hopes of speedily getting the subpoena quashed. Because before DA Willis subpoenaed Rudy ‘n’ the gang, she called several state lawmakers to testify. So Lt. Governor Geoff Duncan and state Senator William Ligon, who chaired a committee which held a hearing for Giuliani, Jenna Ellis, and John Eastman to air debunked election theories about “suitcases” of fraudulent ballots, have already moved to quash based on roughly the same legislative privilege theory Graham is arguing.

In his Order Denying the Motion to Quash, Judge McBurney cited to a provision of the Georgia Constitution which is broadly analogous to the Speech or Debate Clause, protecting legislators from liability “in any other place for anything spoken in either house or in any committee meeting of either house.” The court agreed that the state legislators were engaged in protected activity during Giuliani’s clown show hearing on December 3, 2020 and thus cannot be deposed about their preparations, speech, or impressions around it.

But the legislative privilege does not extend to conversations between legislators and private citizens.

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“[T]here is no ‘senator-constituent’ privilege — in particular when those communications are relevant to possible third-party crimes,” Judge McBurney wrote, adding that there is no expectation of privacy in the interaction and indeed it would be bad public policy to make communications between government officials and parties seeking to influence them undiscoverable.

But more importantly for Senator Graham, the court notes that this question was asked and answered by the Supreme Court in 1972 when it ruled that Alaska Senator Mike Gravel and his aide could not use the Speech or Debate Clause to get out of testifying to a grand jury about publishing the Pentagon Papers, since that involved potentially illegal conduct by third parties and was not part of his legislative duties.

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For the state witnesses, this means that they will have to testify about their contacts with Trump campaign surrogates seeking to overturn the results of the election, if not about the December 3 hearing itself. For Graham it means his huffing about the Speech or Debate clause is likely to get a chilly reception with the trial judge.

Because if conversations with third parties about vote tabulation are not part of the duties of elected officials in Georgia, it’s pretty hard to see how they can fall within the legislative ambit for a US Senator from South Carolina, even if he is head of the Judiciary Committee. Particularly when Secretary of State Brad Raffensperger and his deputy Gabe Sterling, who were on the the other side of those calls, both say that Graham wasn’t seeking to ensure the integrity of the tally so that he could fulfill his constitutional obligation to object to any defective slate of state electors. In fact the senator was trying to get them to toss out batches of mail-in-ballots so that Trump would “win” the state.

“He asked if the ballots could be matched back to the voters,” Raffensperger told CNN’s Wolf Blitzer, “And then he, I got the sense it implied that then you could throw those out for any, if you look at the counties with the highest frequent error of signatures. So that’s the impression that I got.”

“What I heard was basically discussions about absentee ballots and if a potentially … if there was a percentage of signatures that weren’t really, truly matching, is there some point we could get to, we could say somebody went to a courtroom could say well, let’s throw (out) all these ballots because we have no way of knowing because the ballots are separated,” Sterling confirmed.

To be clear, that’s a proposal to reject thousands of mail-in ballots because some small number of them may or may not have been “tainted” by signature match errors — and to do it in counties where Biden voters predominated. Rudy Giuliani demanded a similar haircut for ballots in Philadelphia and got laughed out of court.

And unlike Graham, Raffensperger and Sterling cowboyed up and testified to the Georgia grand jury and even appeared publicly before the January 6 Committee, during which they testified about the infamous call where the sitting president demanded that they “find 11,780 votes, which is one more than we have because we won the state.” What are the odds that the committee asked these state officials about their chat with the senator? Lordy, I bet there are tapes!

In any event, Senator Graham may yet get a lifeline from a higher court in Georgia or a sympathetic federal judge. But at the trial level, Judge McBurney seems pretty skeptical of any argument about legislative immunity for efforts to ratf*ck a state’s ballot count.

Georgia officials must testify in Trump investigation, judge rules [Axios]

Liz Dye lives in Baltimore where she writes about law and politics.

Topics

Crime, Election Law, Government, Lindsey Graham