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In her written decision on Monday, US District Judge Leigh Martin May sent the case to the Superior Court of Fulton County to hear further proceedings on the US Constitution’s “Speech or Debate” clause, the centerpiece that Graham’s attorneys argued immunized the South Carolina senator from having to testify in this case.
“Because the record must be more fully developed before the Court can address the applicability of the ‘Speech or Debate’ clause to specific questions or lines of inquiry, and because Senator Graham’s only request in removing the subpoena to this Court was to quash the subpoena in its entirety, the Case is REMANDED to the Superior Court of Fulton County for further proceedings,” May wrote in the ruling.
The South Carolina Republican is scheduled to appear as a witness in Atlanta in front of the special grand jury on August 23.
Fulton County District Attorney Fani Willis, who is leading the investigation into Trump and his allies, has said in court filings that the grand jury needed to hear from Graham about at least two calls Graham made to Georgia Secretary of State Brad Raffensperger and his staff in the wake of the 2020 election.
In Graham’s filing to block the subpoena, his attorneys have said the senator’s calls to Georgia officials were legislative activity and that his activities are protected under the Constitution’s speech and debate clause.
“Senator Graham did not inject himself into Georgia’s electoral process, and never tried to alter the outcome of any election. The conversation was about absentee ballots and Georgia’s procedures,” Graham’s attorneys said in a court filing last month. His contact with Georgia officials “is legislative activity falling under Senator Graham’s fact-finding and oversight responsibility as the then-Chairman of the Senate Judiciary Committee and a sitting United States Senator required to determine whether to certify electoral votes before a joint session of Congress.”
Raffensperger told CNN in November 2020 that Graham — a South Carolina Republican who was then-chairman of the Senate Judiciary Committee — hinted that Raffensperger should try to discard some Georgia ballots during a statewide audit.
“He asked if the ballots could be matched back to the voters,” Raffensperger told CNN’s Wolf Blitzer on “The Situation Room” at the time. “And then he, I got the sense it implied that then you could throw those out for any, if you look at the counties with the highest frequent error of signatures. So that’s the impression that I got.
“It was just an implication of, ‘Look hard and see how many ballots you could throw out,'” Raffensperger added.
Asked if he was trying to pressure the secretary of state to toss legal ballots, Graham told CNN at the time, “That’s ridiculous.” Graham said he was trying to figure out how signatures were verified on mail-in ballots for a variety of battleground states.
This story has been updated with additional background information.
