Appeals court temporarily pauses order requiring Graham to appear before Atlanta-area grand jury

[BumRushDaShow]

Last edited Sun Aug 21, 2022, 12:48 PM - Edit history (1)

Source: CNN

(CNN) A federal appeals court on Sunday temporarily paused a district court's order requiring that Republican Sen. Lindsey Graham of South Carolina appear before a grand jury probing plots to illegally influence the 2020 election results in Georgia. The 11th US Circuit Court of Appeals sent the proceedings around the Fulton County grand jury subpoena back to the district court judge with the instruction that the judge consider whether the subpoena should be partially quashed or modified in accordance with the Constitution's speech and debate clause.

The constitutional provision shields lawmakers from certain law enforcement actions in some scenarios. Graham had pointed to it in his challenge to the subpoena, which demanded he testify on Tuesday in front of the special grand jury in Fulton County in the Atlanta area. The appeals court panel -- made up of Circuit Judges Charles Wilson, Kevin Newsom and Britt Grant -- said in its order that the district court could expedite the briefing around modifying the subpoena in a manner that the judge "deems appropriate."

The appeals court said that after that question is resolved, the matter will return back before the appeals court for further consideration. US District Judge Leigh Martin May ruled last week that Graham had to testify before the Fulton County grand jury investigating former President Donald Trump's efforts to overturn the 2020 presidential election in Georgia. Graham has been attempting to quash the subpoena since it was issued in July, including asking May to put her ruling on hold, which she declined to on Friday, and also filing an emergency request with the 11th Circuit.

Fulton County District Attorney Fani Willis, a Democrat leading the investigation, said in court filings that the grand jury needed to hear from Graham about at least two calls he placed in the wake of the 2020 election to Georgia Secretary of State Brad Raffensperger and his staff. Raffensperger, a Republican, told CNN in 2020 that Graham hinted that he should try to discard some Georgia ballots during a statewide audit.

Read more: https://www.cnn.com/2022/08/21/politics/lindsey-graham-appearance-fulton-county-paused/

---

Short article initially now updated.

Original article -

(CNN) A federal appeals court on Sunday temporarily paused a district court's order requiring that Republican Sen. Lindsey Graham of South Carolina appear before a grand jury probing plots to illegally influence the 2020 election results in Georgia.

The 11th US Circuit Court of Appeals sent the proceedings around the Fulton County grand jury subpoena back to the district court judge with the instruction that the judge consider whether the subpoena should be partially quashed or modified in accordance with the Constitution's Speech or Debate Clause.

The constitutional provision shields lawmakers from certain law enforcement actions in some scenarios. Graham had pointed to it in his challenge to the Fulton County subpoena, which demanded he testify on Tuesday.

The appeals court panel -- made up of Circuit Judges Charles Wilson, Kevin Newsom and Britt Grant -- said in its order that the district court could expedite the briefing around modifying the subpoena in a manner that the judge "deems appropriate." The appeals court said that after that question is resolved, the matter will return back before the appeals court for further consideration.

As a note - when congress members are doing "official legislative business" related to their Committees (whether as members or as a Chair), they are quick to whip out their letterheads and send their inquiries in writing, so this is all bullshit.

[dweller]

1. WTF ?

Such bullshit
Any one else would have to be there to testify

😡

✌🏻

[oldsoftie]

12. I certainly agree. What are you scared of Lindsey? Truth?

[vlyons]

19. my thought exactly

nt

[TheRickles]

2. CNN article (basically this OP) doesn't explain the Speech or Debate Clause either.

Any con law experts out there to shed some light? Thanks.

[BumRushDaShow]

8. It's from a section in the Constitution

Article I

(snip)

Section 6.

The Senators and Representatives shall receive a compensation for their services, to be ascertained by law, and paid out of the treasury of the United States. They shall in all cases, except treason, felony and breach of the peace, be privileged from arrest during their attendance at the session of their respective Houses, and in going to and returning from the same; and for any speech or debate in either House, they shall not be questioned in any other place.

No Senator or Representative shall, during the time for which he was elected, be appointed to any civil office under the authority of the United States, which shall have been created, or the emoluments whereof shall have been increased during such time: and no person holding any office under the United States, shall be a member of either House during his continuance in office.

(snip)

https://www.law.cornell.edu/constitution/articlei

IMHO him claiming that is bullshit especially given what was going on around the election and trying to overturn results, should have been or is a felony and he certainly wasn't giving a speech on the Senate floor related to what this grand jury is looking to clarify - he was literally calling up people to get them to throw out ballots.

Lindsey Graham’s controversial call with Georgia’s secretary of state, explained

Amid Trump’s effort to challenge the election, Secretary of State Brad Raffensperger went public about a call from Graham.

By Andrew [e-mail] Nov 18, 2020, 9:40am EST


President Donald Trump is trying to overturn the results of the presidential election through lawsuits and bluster. And amid all this, a question has arisen about whether Sen. Lindsey Graham (R-SC), one of his close allies, tried to get Georgia’s secretary of state to throw out vast numbers of legally cast mail ballots — something that could theoretically flip a state Joe Biden won to Trump.

The Republican secretary of state, Brad Raffensperger, claims Graham came close to doing this in a call with him on Friday. He says Graham asked whether he had the power to throw out all mail ballots in counties where there were relatively high rates of rejection of mail ballots because their signatures did not match voters’ signatures on file.

“It sure looked like he was wanting to go down that road,” Raffensperger told the Washington Post’s Amy Gardner.

If Raffensperger’s interpretation of Graham’s meaning is accurate, it would be a boldfaced, undemocratic attempt from a Trump ally to overturn the election results. And some Democrats, like Rep. Hakeem Jeffries (D-NY), are calling on the Justice Department to investigate Graham’s actions.

(snip)

https://www.vox.com/2020/11/18/21571684/lindsey-graham-brad-raffensperger-georgia-ballots

[cstanleytech]

9. Well it does say that it only applies to being arrested.

This is not an arrest however it's merely a demand that he appear to testify at which point he can invoke the 5th just like anyone else.

[Trueblue Texan]

16. nor does it imply he can't be arrested when the ...

...Senate is NOT in session. I'm not a lawyer, but it doesn't give him cover for crimes he may have committed while doing the Senate's business. It merely says he can't be arrested for them WHILE he is attending session or traveling to an from sessions and cannot be held accountable for things he says during debate. It doesn't exempt him from a grand jury subpoena.

[TheRickles]

20. Thanks for these clarifications, BumRush and others.

They make it even clearer that Graham's claims are total BS. Not a surprise(!), but good to see the specifics.

[BumRushDaShow]

21. You're welcome - When I updated the OP for CNN's update

I noted that when they are doing "legislative business" related to their committees, they normally send stuff out on their official letterhead. So if Graham was so worried about GA's mail ballots, he could have sent an inquiry, in writing to Raffensperger asking how they handle the signature match issue (or whatever the hell he was complaining about) based on the state law/state Constitution. Instead he did some underhanded kind of quid pro quo thing suggesting GA focus on counties with high mail ballot rejections to ensure that more get thrown out, so the state vote tally could be flipped.

GA ended up doing something like 3 recounts IIRC.

[CaptainTruth]

29. "he certainly wasn't giving a speech on the Senate floor"

That was my first thought.

To me it seems like a heck of a stretch to make "any speech or debate in either House" apply to things he said outside of Congress, especially when potentially illegal acts are involved.

[BumRushDaShow]

32. I know it has been noted in this thread

that the courts tend to broaden their definition of what "speech and debate" might encompass. I was thinking as an example, when members of Congress go on a "fact-finding mission" (like what a set did to Taiwan recently after Speaker Pelosi's visit), where that might be considered something that could be covered if they make remarks about their reasons for travel and intentions for current/future legislative action. And in that case, they aren't literally on the floor of their chambers "giving s speech" or "debating an issue", whether on the floor or in Committee (or via submitted "remarks" for the legislative record).

However when they are giving "remarks", there is usually some kind of media coverage and/or a press release that describes their views and the circumstances, etc.

But in this case, a clandestine phone call to the GOP Secretary of State of a different state from the one he was Senator for and then that SOS having raised alarm bells regarding the intentions of that phone call, and making those concerns "public", should not be construed as Graham doing it for some kind of valid "legislative purpose". And this is moreso given they are of the same political party as a Democratic SOS might have balked regardless of intent, but a same-party individual, not so much.

From the Senate Judiciary's webpage, their jurisdiction is listed as follows - https://www.judiciary.senate.gov/about/jurisdiction

About

Jurisdiction

In addition to its critical role in providing oversight of the Department of Justice and the agencies under the Department's jurisdiction, including the Federal Bureau of Investigation, and the Department of Homeland Security, the Judiciary Committee plays an important role in the consideration of nominations and pending legislation.

Executive nominations for positions in the Department of Justice, Office of National Drug Control Policy, the United States Parole Commission, the United States Sentencing Commission, and the State Justice Institute, as well as select nominations for the Department of Homeland Security and the Department of Commerce are referred to the Senate Judiciary Committee.

The Judiciary Committee is also charged with the consideration of all Article III judicial nominations. These include Supreme Court nominations, appellate court nominations, and district court nominations. The Committee also considers nominations to the Court of International Trade.

In addition to its role in conducting oversight and consideration of nominations, the Senate Judiciary Committee also considers legislation, resolutions, messages, petitions, memorials and other matters, as provided for in the Standing Rules of the Senate. These areas include:

Apportionment of Representatives

Bankruptcy, mutiny, espionage, and counterfeiting

Civil liberties

Constitutional amendments

Federal courts and judges

Government information

Holidays and celebrations

Immigration and naturalization

Interstate compacts generally

Judicial proceedings, civil and criminal, generally

Local courts in territories and possessions

Measures relating to claims against the United States

National penitentiaries

Patent Office

Patents, copyrights, and trademarks

Protection of trade and commerce against unlawful restraints and monopolies

Revision and codification of the statutes of the United States

State and territorial boundary lines

IMHO the closest "jurisdictional" function related to this issue might be the first - the reapportionment of Representatives since 2020 was a census year with reapportionment underway. However the ACTUAL Senate Committee that has direct jurisdiction of federal elections is the Senate Committee on Rules and Administration - https://www.rules.senate.gov/about/purpose-and-jurisdiction

About

Purpose and Jurisdiction

(Taken from the Standing Rules of the Senate: Rule 25.1.n)

(1) Committee on Rules and Administration, to which committee shall be referred all proposed legislation, messages, petitions, memorials, and other matters relating to the following subjects:

(A) Administration of the Senate Office Buildings and the Senate wing of the Capitol, including the assignment of office space.

(B) Congressional organization relative to rules and procedures, and Senate rules and regulations, including floor and gallery rules.

(C) Corrupt practices.

(D) Credentials and qualifications of Members of the Senate, contested elections, and acceptance of incompatible offices.

(E) Federal elections generally, including the election of the President, Vice President, and Members of the Congress.

(F) Government Printing Office, and the printing and correction of the Congressional Record, as well as those matters provided for under rule XI.

(G) Meetings of the Congress and attendance of Members.

(H) Payment of money out of the contingent fund of the Senate or creating a charge upon the same (except that any resolution relating to substantive matter within the jurisdiction of any other standing committee of the Senate shall be first referred to such committee).

(I) Presidential succession.

(J) Purchase of books and manuscripts and erection of monuments to the memory of individuals.

(K) Senate Library and statuary, art, and pictures in the Capitol and Senate Office Buildings.

(L) Services to the Senate, including the Senate restaurant.

(M) United States Capitol and congressional office buildings, the Library of Congress, the Smithsonian Institution (and the incorporation of similar institutions), and the Botanic Gardens.

(2) Such committee shall also -

(A) make a continuing study of the organization and operation of the Congress of the United States and shall recommend improvements in such organization and operation with a view toward strengthening the Congress, simplifying its operations, improving its relationships with other branches of the United States Government, and enabling it better to meet its responsibilities under the Constitution of the United States; and

(B) identify any court proceeding or action which, in the opinion of the Committee, is of vital interest to the Congress as a constitutionally established institution of the Federal Government and call such proceeding or action to the attention of the Senate.

(C) develop, implement, and update as necessary a strategic planning process and a strategic plan for the functional and technical infrastructure support of the Senate and provide oversight over plans developed by Senate officers and others in accordance with the strategic planning process.

(for example, that Committee was involved in planning and implementation of the Inauguration)

Back during the election, the Chair at the time was Roy Blunt (not Lindsey Graham) and Blunt even had a hearing on "Election Preparations" in July 2020 - https://www.rules.senate.gov/news/press-releases/blunt-announces-rules-committee-hearing-on-2020-election-preparations and Graham was NOT a member of that Committee then (or now).

[TDale313]

3. There's never any accountability for these assholes ☹️

I know, it’s just a pause… but how the hell do they get to keep giving the courts the middle finger and get away with it?!?

[PSPS]

4. The 11th circuit is the second most MAGA court, mostly trump appointees

Two of the three behind this "decision" are trump appointees and should have recused.

[JohnSJ]

5. of course. This is so f**king depressing. Women who steals Speaker Pelosi's laptop gets house

arrest, and is allowed to go to a faire.

I am very skeptical that anything will be done to trump. The SC will insure that.

Constitution's Speech or Debate Clause for trying to overturn an election, my ass. Here is what that clause states:

"They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place."

I guess involvement in trying to overturn an election is ok?

[Novara]

6. Oh for fuck's sake

This is the "speech and debate" clause:

Article I, Section 6, Clause 1:

The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.

Emphasis mine. From: https://constitution.congress.gov/browse/essay/artI-S6-C1-3/ALDE_00001048/#:~:text=They%20shall%20in%20all%20Cases,questioned%20in%20any%20other%20Place.

Election interference IS a felony:

18 U.S. Code § 595 - Interference by administrative employees of Federal, State, or Territorial Governments
U.S. Code

Whoever, being a person employed in any administrative position by the United States, or by any department or agency thereof, or by the District of Columbia or any agency or instrumentality thereof, or by any State, Territory, or Possession of the United States, or any political subdivision, municipality, or agency thereof, or agency of such political subdivision or municipality (including any corporation owned or controlled by any State, Territory, or Possession of the United States or by any such political subdivision, municipality, or agency), in connection with any activity which is financed in whole or in part by loans or grants made by the United States, or any department or agency thereof, uses his official authority for the purpose of interfering with, or affecting, the nomination or the election of any candidate for the office of President, Vice President, Presidential elector, Member of the Senate, Member of the House of Representatives, Delegate from the District of Columbia, or Resident Commissioner, shall be fined under this title or imprisoned not more than one year, or both.

This section shall not prohibit or make unlawful any act by any officer or employee of any educational or research institution, establishment, agency, or system which is supported in whole or in part by any state or political subdivision thereof, or by the District of Columbia or by any Territory or Possession of the United States; or by any recognized religious, philanthropic or cultural organization.

(June 25, 1948, ch. 645, 62 Stat. 720; Pub. L. 91–405, title II, § 204(d)(6), Sept. 22, 1970, 84 Stat. 853; Pub. L. 103–322, title XXXIII, § 330016(1)(H), (L), Sept. 13, 1994, 108 Stat. 2147.)

Emphasis mine. From: https://www.law.cornell.edu/uscode/text/18/595

In order to investigate whether he is guilty of such an offense, an investigation must be conducted. Seems to me, since he is accused - and may be found guilty - of this felony, the speech and debate clause does not apply.

Lawyers, correct me if I'm wrong, please.

[sarcasmo]

7. Today in Republicans who are above the law.

[Traildogbob]

10. The damn oceans rising

Is not the threat that will end us. It’s the damn rising shit filled sewer that is neck deep inland right now that seems to be rising an inch every day here in MurKKKa. The stench is sickening. And one third of the country think it is cologne. I live in a county that has had a paper mill for many decades. The stench was acceptable to those union workers that now worship anti union GQP. They always said that Stench was ”The smell of money”. They accepted it along with state leading cancer deaths. That’s todays GQP. The stench of shit filled sewer is “The smell of money”. And fuck anybody that dies from it.

[bullimiami]

11. Ruling in 3 words. Considered. Doesn't apply.

Do these rw “justices” ever read the actual laws??

[Evolve Dammit]

13. 45 will walk too. No faith anymore. But don't steal a candy bar.

[Ford_Prefect]

14. If they charge him as IMO they should he would have to respond since it would be a felony.

He's exploiting the immunity from interference which Congress and Senate members have often used to avoid legal entanglements.

Does it apply during a recess? That was what I wanted someone judicial to discuss. It does not seem unreasonable that he could be available during a recess and that the current recess would be adequate.

The other question I wanted answered was whether the State of Georgia has sufficient authority to demand his testimony. I believe that they do. It also seems they could compel him to testify as a material witness.

[Backseat Driver]

15. How do judges now ensure that:

Words have majority meanings (depending on who hears them, re-speaks them, writes them in acceptable print or cursive, who owns those encrypted codes of digital text, or feels any certain way about those words so conveyed? What is "appropriate" to a judge's decision making? Does it change in appropriateness depending...? Learn the ropes of individualized "signature language parsing" in the chaotic digital age of the enforcement of weasling words and their meanings here:

https://www.codecademy.com/learn/language-parsing



I'm so tired of the ensuing investigative chaos...

[sdfernando]

17. He wasn't debating and he wasn't making a speach

case closed!

[Half-step]

18. garbage-people...

[EndlessWire]

22. I could swear I remember

hearing a recording of his phone call re the ballots. I thought at that time, look he's doing it, too.

I can't believe that an appellate court can't interpret these actions he took. It seems like they are passing the buck back to the lower court just to get out of taking a stance. While I have seen some legislation which doesn't mean what casual reading of the passages seems to mean, but must be interpreted in light of the cases, this legislation and rule is plain and simple on the face. Now, the appellate court will require the lower court to provide cites for the judgement they rendered, if they didn't already.

The lower court already said that the quash is not appropriate. Now, it seems like the upper court is telling the lower court to find something to modify, thereby passing that responsibility to the lower court judge, in order to "expedite" the modification or quash hearing. I suppose they can do that, but it seems like they are saying that something should be modified, but they are not giving the lower court any direction for that.

There is a trend in the judiciary to find this neutral territory no matter how egregious the wrongdoing, solely to appear nonpartisan, even when there is no such territory to be won. The black letter of the law applies, no matter how much they wish it didn't.

It's really disgusting.

[IcyPeas]

23. Graham: Trump a 'race-baiting, xenophobic religious bigot... Tell Trump to "go to hell"

C'mon Lindsey. you were right the first time. Why are you still fighting for him? Go spill your guts to the grand jury.

Here’s what you’re buying: He’s a race-baiting, xenophobic religious bigot. He doesn’t represent my party. He doesn’t represent the values that the men and women who wear the uniform are fighting for.

...

Sen. Lindsey Graham said it’s time for Republicans to rebuke presidential hopeful Donald Trump, urging his party to tell Trump to “go to hell.”

“You know how you make America great again? Tell Donald Trump to go to hell,” Graham said on CNN’s “New Day” on Tuesday, picking up on the GOP front-runner’s famous slogan, “make America great again.”

[onenote]

24. The Speech and Debate Clause has been interpreted broadly

Many of the comments here read the Speech and Debate clause narrowly. But the courts have long taken a broader view of the clause, interpreting it has having three components: an immunity component, an evidentiary privilege component, and a testimonial and non-disclosure privilege.

That doesn't mean Graham should prevail, in whole or in part (and I hope he doesn't prevail), but it does mean that, in the view of the appeals court (two Trump appointees and a Clinton appointee), the lower court should have parses his arguments with more specificity.

For those interested, the attached provides a good review of the clause and its history.

https://sgp.fas.org/crs/misc/R45043.pdf

[riversedge]

31. Thanks so much. I learn so much from folks here on DU.

[iluvtennis]

25. To me, Fani Willis has what she needs for Special Grand jury to recommend an indictment to Graham.

If I recall correctly, Georgia Sec of State indicated [ and likely has testified to grand jury] that Graham asked him to toss some ballots from Fulton County.

[Obvious85]

26. Lindsay is such a DISGUSTING HUMAN BEING

How can someone with NO INTEGRITY, NO BACKBONE, be voted into office. Gross

[Firestorm49]

27. Aw, poor little Lindsey. He's got the balls to aid in an attempt to overthrow the country,

but not man enough to account for his actions. How Republican!

[NullTuples]

28. Trump & the Federalist Society appointed 6 of the 11 judges

Obama, 3

Clinton & Bush Jr, 1 each.

This was part of Addison "Mitch" McConnell's effort to block hearings for 130+ federal judge seats during the Obama Administration.

https://ballotpedia.org/United_States_Court_of_Appeals_for_the_Eleventh_Circuit

[empedocles]

30. ty

[msfiddlestix]

33. Appeals Court review to determine "in a manner deems appropriate" ....

If this isn't evidence of a court stepping in to interfere with a High Crimes GJ hearing, protecting the privileged class,I don't know what is. Based on BIASED FEELINGS.

For those among us who are legal experts, let me be clear. This action taken by this appeals court demonstrates how our courts all too frequently, their inclination to make rulings favoring the privileged class. No matter how high or serious the crimaintality.

This is an example of their very biased "feelings" not constitutional law, which determines their rulings/decisions.

Over and over again we see this kind of thing occur repeatedly.