With Georgia DA’s Get-Trump Grand Jury On Hold, Lindsey Graham And The First Amendment Are Still In The Crosshairs

Margot ClevelandAugust 22, 2022

Sunday morning, the 11th Circuit Court of Appeals temporarily froze efforts by the Fulton County district attorney’s office to haul South Carolina Sen. Lindsey Graham to Georgia for questioning before a grand jury. However, a complete halt to the abuse of the grand jury process by the Democrat Fulton County prosecutor is needed to protect important First Amendment interests.

How It Happened

In July, news broke that the Democrat prosecutor for Fulton County, Georgia, Fani Willis, had subpoenaed to testify before her “special purpose grand jury” a slew of lawyers representing Donald Trump, as well as high-level Republicans at both the state and national levels, including Graham. Upon learning of the subpoena, Graham immediately filed a motion to quash, arguing that the Speech or Debate Clause of the Constitution, sovereign immunity, and the “high-ranking official” doctrine prevented the county district attorney from questioning him before a Georgia grand jury.

Last week, federal Judge Leigh Martin May, a Barack Obama appointee, denied Graham’s motion to quash, concluding neither sovereign immunity nor the “high-ranking official” doctrine protected Graham, and that it was too early to tell whether the DA’s questioning of the South Carolina senator would run afoul of the Speech or Debate Clause.

The Speech or Debate Clause of the Constitution provides that “for any Speech or Debate in either House, [members] shall not be questioned in any other Place.” This clause applies not merely to “speech” and “debate” in the literal sense, but to all “legislative acts.” Thus, in seeking to quash the subpoena, Graham argued that the two telephone conversations he had with Georgia Secretary of State Brad Raffensperger on which Willis’s subpoena focused, qualified as “legislative acts” because “his questioning of the secretary of state on reported irregularities in Georgia’s election were ‘integral’ to the ‘functioning of the legislative process.’”

In rejecting that argument, the federal court concluded that “the grand jury would not necessarily be precluded from all inquiries about the calls unless every aspect of the calls was determined to fall within the sphere of legitimate legislative activity.” But at this stage of the proceedings and without knowing the specific questions to which Graham objected, the court concluded it was premature to address whether the conversation fell within the protection of the Speech or Debate Clause.

The federal court further ruled that the Fulton County district attorney had the right to question Graham on other issues “in addition to his knowledge about topics outside of the calls, such as his alleged coordination with the Trump Campaign before and after the calls…” Such information is “within the investigative purview of the grand jury,” Judge Martin May concluded because the special purpose grand jury was convened for the purpose of “investigating the facts and circumstances relating directly or indirectly to possible attempts to disrupt the lawful administration of the 2020 elections in the State of Georgia.”

With the subpoena requiring him to appear before the special purpose grand jury on Tuesday, Graham’s legal team immediately prepared to appeal the denial of the motion to quash. Initially, the Fulton County prosecutor’s office told Graham’s attorneys that “we don’t object to moving the date pending resolution of appeal,” but then reneged on its commitment and opposed any delay. This course reversal forced Graham’s lawyers to seek a stay of the court’s ruling, first in the district court, which denied the motion, and then in the 11th Circuit Court of Appeals, which granted the stay on Sunday.

In staying the Fulton County prosecutor’s subpoena, the federal appellate court also reversed in part the lower court’s order rejecting Graham’s request for a “partial-quashal.” While Graham’s legal team had maintained that the Speech or Debate Clause prevented Willis from requiring the South Carolina senator to even appear in Fulton County, as a backstop Graham argued that if the federal trial court “refused to quash the subpoena in its entirety, the Court should enter an order potentially modifying the subpoena or prescribing areas of inquiry that are barred.” Judge Martin May refused to consider Graham’s request for a “partial-quashal” that would limit the grand jury questioning.

The federal appellate court’s Sunday morning order not only temporarily stayed the subpoena pending the appellate court’s resolution of Graham’s motion to stay pending appeal, but also sent the case back to the district court, directing the court “to determine whether [Graham] is entitled to a partial quashal or modification of the subpoena to appear before the special purpose grand jury based on any protections afforded by the Speech or Debate Clause of the United States Constitution.” Following the resolution of that question by Judge Martin May, the case will return to the 11th Circuit, according to yesterday’s order.

That the 11th Circuit Court of Appeals not only issued the temporary stay of Graham’s subpoena but also remanded the case, directing the trial court to address the limits of the Speech or Debate Clause, proves significant because it indicates a federal court is finally taking seriously the constitutional protection afforded a United States senator now under attack by a Georgia county prosecutor.

Willis’s disregard for the Speech or Debate Clause represents the least offensive part of the Fulton County prosecutor’s witch hunt. By targeting political opponents with a sham investigation that promises a fishing expedition inquiring into legal and legitimate Republican strategies, the Democrat district attorney runs headlong into the First Amendment. However, because pre-Trump our country has never seen such a blatant abuse of power and weaponizing of the grand jury system, precedent provides scant support to stop Willis and other Democrats.

On the contrary, case law makes clear that the “grand jury’s investigative powers are necessarily broad, in keeping with the principle that the public ‘has a right to every man’s evidence,’” with courts stressing that this “fundamental maxim” “traces back to 1742.” Decisions further stress that a “grand jury has not merely the right, but indeed the duty, ‘to inquire into the existence of possible criminal conduct.’” And thus “it may investigate ‘merely on suspicion that the law is being violated, or even because it wants assurance that it is not.’” Or as one federal appellate court said, “a grand jury’s investigation is not fully carried out until every available clue has been run down and all witnesses examined in every proper way to find if a crime has been committed.”

While this precedent makes clear that “the First Amendment generally does not offer protection from a duty to testify before the grand jury,” dicta recognizes that “harassment of a political dissident with no expectation that any evidence concerning the commission of a crime would be forthcoming would constitute an abuse” of the grand jury process. Further, case law suggests that where an “adequate showing of abuse of process” has been made, a court should hold an evidentiary hearing to determine if the grand jury process constitutes “political harassment.”

A Closer Look at the Grand Jury

Three significant facts—above and beyond the Speech or Debate Clause—should compel the federal courts to scrutinize the Fulton County prosecutor’s “special counsel grand jury” more closely and to provide a check on the Democrat DA.

First, Willis is not merely a Democrat targeting Republicans but obtained approval to launch the special purpose grand jury investigation from Chief Judge Christopher Brasher—the same judge who delayed Trump’s court challenge to the Georgia election results for a month when he failed to timely appoint a judge eligible to hear the case.

Willis is also not merely a Democrat in name only but represents a well-connected up-and-comer in the state party. And after launching her special counsel grand jury investigation into Trump, she headlined a fundraiser for a Democrat candidate for lieutenant governor, Charlie Bailey. This November, Bailey will face off against Georgia Republican Burt Jones for the No. 2 spot in the governor’s office. And low and behold, Willis also used the grand jury to target Jones, publicly branding him a target of the probe.

A state court judge put a stop to that farce, however, ruling that neither Willis nor her team of prosecutors could subpoena nor investigate Jones given the clear conflict of interest. But Willis continues to oversee the targeting of other Republicans such as Graham.

Second, while on paper the Fulton County special counsel grand jury appears focused on a legitimate inquiry, being authorized to “investigat[e] the facts and circumstances relating directly or indirectly to possible attempts to disrupt the lawful administration of the 2020 elections in the State of Georgia,” in court filings, Willis revealed her investigation rests on a lie.

As I detailed earlier this month, “Willis told a Georgia federal court that ‘a central focus’ of her investigation into the 2020 election ‘is former President Donald Trump’s January 2, 2021, telephone call to Georgia Secretary of State Brad Raffensperger requesting that the Secretary “find 11,780 votes” in the former President’s favor.’” And “with that opening paragraph, the Fulton County Democrat revealed the hoax of an investigation she is running,” because “Trump did not request that Raffensperger ‘find 11,780 votes.’ Period. It never happened.”

Because Willis continues to push a grand jury investigation premised on a provable lie, the courts should force Willis to justify the grand jury proceedings in total.

Third, the questioning by the Fulton County prosecutor’s special counsel grand jury implicates serious First Amendment rights, including the right to speech, to association, and to petition the government for redress. In seeking to question Graham (and presumably others), Willis maintains Graham has important knowledge “concerning ‘the Trump Campaign[] and other known and unknown individuals involved in the multi-state, coordinated efforts to influence the results of the November 2020 election in Georgia and elsewhere.’”

But this “important knowledge”—if it does not involve information gathering for Speech or Debate purposes—concerns political strategy. And allowing a Democrat prosecutor to ask Republicans about their legal attempts to “influence the results” of an election, through litigation or lobbying of election officials to enforce the law or investigate allegations of fraud or irregularities, reeks of “extensive interference with political groups’ internal operations and with their effectiveness,” which the courts have prohibited in other situations.

Further, while courts may not “lightly interfer[e]” with an investigative act, and “every reasonable indulgence of legality must be accorded” it, given the “substantial First Amendment interests” political parties have and the significant evidence that Willis’s investigation is a sham, the federal courts have an important role in checking this political witch hunt.

The Republican National Committee presented similar First Amendment arguments in opposing a subpoena issued by the House’s Jan. 6 Committee to a third party that possessed records related to communications of the RNC. That case currently awaits a decision by the D.C. Circuit, but the lower court’s analysis in that case proves informative. Further, the D.C. District Court’s conclusion that the Jan. 6 Committee’s interest “‘must reflect the seriousness of the actual burden’ imposed by the subpoena on the RNC’s First Amendment rights,” applies equally here.

While the Speech or Debate Clause provides—or should provide—some protection against a prosecutor running rogue, the weaponizing of the grand jury by state-level Democrats presents no less of a breach of the Rubicon than the Trump Mar-a-Lago raid. But because our country has never seen this scenario before, it is unclear whether First Amendment jurisprudence will be up to the task of countering the continuing abuse justified by a desire to destroy political enemy No. 1.

Margot Cleveland is The Federalist’s senior legal correspondent. She is also a contributor to National Review Online, the Washington Examiner, Aleteia, and Townhall.com, and has been published in the Wall Street Journal and USA Today.

Cleveland is a lawyer and a graduate of the Notre Dame Law School, where she earned the Hoynes Prize—the law school’s highest honor. She later served for nearly 25 years as a permanent law clerk for a federal appellate judge on the Seventh Circuit Court of Appeals. Cleveland is a former full-time university faculty member and now teaches as an adjunct from time to time.

As a stay-at-home homeschooling mom of a young son with cystic fibrosis, Cleveland frequently writes on cultural issues related to parenting and special-needs children. Cleveland is on Twitter at @ProfMJCleveland. The views expressed here are those of Cleveland in her private capacity.