Amicus Briefs August 5, 2022

Opposition to United States Senator Lindsey Graham’s Expedited Motion To Quash Subpoena – Fulton County Special Grand Jury Investigation into Election Interference (GA)

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
Issue Areas
Summary

On Thursday, August 4, 2022, a group of former federal prosecutors filed an amicus brief in the United States District Court for the Northern District of Georgia opposing U.S. Senator Lindsey Graham’s motion to quash the subpoena issued to him as part of an on-going Fulton County special grand jury investigation. The special grand jury, convened by District Attorney Fani Willis, is investigating measures taken by former President Donald Trump and his allies to influence the 2020 presidential election in Georgia. The brief was signed by Donald B. Ayer, John Farmer, Renato Mariotti, Sarah R. Saldaña, William F. Weld, and Shan Wu. The States United Democracy Center, Kaplan Hecker & Fink LLP, and Jonathan L. Williams, P.A., served as co-counsel on the brief.  

Senator Graham argues that he should not have to testify in front of the special grand jury because his actions (related to two phone calls he made to Georgia Secretary of State Brad Raffensperger regarding the state’s election process) are covered by legislative privilege, which provides immunity from having to testify over certain legislative acts. However, the former federal prosecutors, who have years of experience with subpoenas and claims of privilege, argue that the subpoena seeks information about Senator Graham’s actions that does not fall within the privilege.  

Legislative privilege does not apply to all actions taken by legislators—or even all actions related to the legislative process—and does not apply to Senator Graham’s specific actions relevant to the special grand jury investigation. This is because Senator Graham’s actions include statements that Secretary Raffensperger and others interpreted to be attempting to influence the Secretary in the administration of his duties, public statements by Senator Graham about his calls with Georgia officials, and communications with the Trump Campaign and others. 

The brief also highlights that the District Attorney’s subpoena is narrowly targeted, and seeks specific evidence from Senator Graham that is relevant to an ongoing criminal investigation. 

The brief urges the Court to deny the motion to quash, and send the matter back to the state court that is overseeing the special grand jury investigation. 

Latest Update

The federal district court judge asked both parties to respond to arguments made in the amicus brief. The court then denied the motion to quash. But after a remand from the 11th circuit appellate court, the district court partially quashed the subpoena, differentiating between topics on which Senator Graham can and cannot be questioned. In doing so, the district court recognized that there are many areas on which Senator Graham can be questioned that are not subject to privilege. The matter is now once again pending before the appellate court. 

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