Amicus Briefs October 27, 2022

Opposition to United States Senator Lindsey Graham’s Emergency Motion to Stay—Fulton County Special Grand Jury Investigation into Election Interference (GA)

UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT, UNITED STATES SUPREME COURT
Issue Areas
Summary

Appellate Court Proceedings

On Friday, October 7, 2022, a group of former federal prosecutors filed an amicus brief in the United States Court of Appeals for the Eleventh Circuit opposing U.S. Senator Lindsey Graham’s emergency motion to stay a district court order, which had allowed questioning of Senator Graham to continue as part of an ongoing Fulton County special grand jury investigation. The States United Democracy Center and Kaplan Hecker & Fink LLP served as co-counsel on the brief. 

The special grand jury is investigating attempts by former President Donald Trump and his allies to influence the 2020 presidential election in Georgia. Senator Graham argues that he should not have to testify in front of the special grand jury because his actions 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. 

The district court below had initially rejected Senator Graham’s novel immunity theories, denied his motion to quash, and remanded the matter back to the state court. On limited remand, the district court prohibited questioning about “investigatory fact-finding that allegedly took place” during Senator Graham’s phone calls to Georgia Secretary of State Brad Raffensperger, but allowed questioning on many other aspects of Senator Graham’s actions with regard to the 2020 elections in the state to continue.

The former federal prosecutors argue that the district court’s decision is correct: Senator Graham is not categorically immune from testifying about non-legislative activity, and the appellate court should deny Senator Graham’s motion for a stay.

U.S. Supreme Court Proceedings

Following Senator Graham’s emergency petition to the U.S. Supreme Court, the former federal prosecutors, again represented by States United and Kaplan Hecker, filed an amicus brief opposing the Senator’s petition on October 27, 2022. 

The former federal prosecutors argued once again that, as the lower courts found, Senator Graham’s arguments are not convincing. In addition to not being immunized from testifying by legislative privilege, principles of sovereign immunity do not apply here. Moreover, further delay of the Senator’s testimony before the special grand jury would “undermine vital public interests in criminal law enforcement and ensuring election integrity.”

Latest Update

On October 20, 2022, a panel of the Eleventh Circuit unanimously denied Senator Graham’s stay motion and upheld the district court’s reasoning. The appellate court also lifted the temporary stay of the district court’s order, so that the special grand jury can once again seek Senator Graham’s testimony. The next day, Senator Graham filed an emergency petition for a stay in the U.S. Supreme Court.

Following Senator Graham’s emergency petition to the U.S. Supreme Court, the former federal prosecutors, again represented by States United and Kaplan Hecker, filed an amicus brief opposing the Senator’s petition on October 27, 2022. 

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