Supreme Court Justice Clarence Thomas raised a few eyebrows last week. Sen. Lindsey Graham was scheduled to testify in Georgia’s criminal investigation into alleged election interference, the South Carolina Republican had appealed to the high court, and the far-right justice gave the senator a temporary reprieve, pausing the process.
Many of Thomas’ critics assumed the worst, concluding that the jurist might’ve been aiding a political ally. Many legal experts, however, urged caution: As a matter of jurisdiction, Thomas handles emergency requests that arise out of Georgia, and the temporary hold did not necessarily mean the Supreme Court would ultimately side with Graham.
Those who cautioned against overreacting turned out to be right. NBC News reported this afternoon:
The Supreme Court on Tuesday rejected a request from Sen. Lindsey Graham, R-S.C., to quash a grand jury subpoena in a Georgia prosecutor’s probe into alleged interference in the 2020 presidential election. The decision is a victory for Fulton County District Attorney Fani Willis, whose office is investigating phone calls Graham made to Georgia election officials at a time when then-President Donald Trump was contesting the result.
For those who might benefit from a refresher, let’s circle back to our earlier coverage and review how we arrived at this point.
It was about four months ago when a special grand jury hearing evidence in an investigation into possible 2020 election interference in Georgia issued subpoenas to several people close to Donald Trump — including Graham.
His perspective was of great interest for a reason. About a week after the 2020 presidential race was called, Brad Raffensperger, Georgia’s Republican secretary of state, accused the senator of contacting him directly to question the validity of legally cast ballots. Graham soon after conceded that the two men spoke, but he called the underlying allegation “ridiculous.”
But Raffensperger held firm, telling CNN in November 2020 that the “implication” of Graham’s message was, “Look hard and see how many ballots you could throw out.”
With this in mind, it was hardly a shock when the Fulton County District Attorney’s office said it wanted to hear Graham’s side of the story.
From the outset, the South Carolinian’s lawyers said Graham didn’t intend to honor the legal summons. In the weeks and months that followed, the GOP senator and his lawyers went from one court to another, fighting tooth and nail to avoid testifying in the case. They’ve repeatedly failed.
The Republicans’ lawyers have leaned heavily on the Constitution’s speech and debate clause, which, generally speaking, is intended to extend specific legal protections to sitting lawmakers: Whatever they say as part of their legislative duties can’t be used as the basis for lawsuits.
A federal district court rejected the argument in August, saying investigators in Georgia have legitimate reasons to ask whether there was “any coordination either before or after the calls with the Trump campaign’s post-election efforts in Georgia.” The same court added that Graham could be asked about his public statements regarding the election, and any efforts to “cajole” or “exhort” election officials in the state. The senator then took his case to the 11th Circuit Court of Appeals, where a three-judge panel — which included two Trump appointees whom Graham voted to confirm — unanimously agreed that the senator’s argument fell short. Still desperate to avoid complying with the subpoena, Graham made one last appeal to the Supreme Court, which today turned the Republican down. For their part, Graham’s attorneys have emphasized that the senator is not a target of the investigation in Georgia, but rather, “simply a witness.” That may very well be true, and I’ve seen no evidence to the contrary. It does raise questions, however, about why the GOP lawmaker has fought so vehemently against cooperating. As things stand, Graham could face questioning as soon as Nov. 17. He’ll have the option of invoking his Fifth Amendment right against self-incrimination, though if he does, that would a highly provocative move. Watch this space.
Steve Benen is a producer for "The Rachel Maddow Show," the editor of MaddowBlog and an MS NOW political contributor. He's also the bestselling author of "Ministry of Truth: Democracy, Reality, and the Republicans' War on the Recent Past."
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