WASHINGTON — Justice Clarence Thomas issued an order Monday that temporarily shields Sen. Lindsey Graham from testifying about his phone calls to Georgia election officials after President Donald Trump’s narrow loss there in November 2020.
Thomas oversees appeals coming from the 11th Circuit Court based in Atlanta. Late last week, he had asked the Fulton County prosecutor to file a response by this Thursday so the full Supreme Court could weigh in on the issue.
Monday’s order suggests Thomas is seriously considering Graham’s plea. His wife, Ginni, is a conservative activist who has openly questioned the results of the 2020 presidential election.
Graham, R-S.C., is fighting off a subpoena seeking his testimony before a grand jury that is investigating whether Trump or his allies may have committed crimes by pressuring election officials to “find” enough votes that would change the outcome.
Graham insists he was acting as a Senate investigator when he placed his calls, and as such, is shielded by the Constitution. It says members of Congress may not be arrested “for any Speech or Debate in either House” and “not be questioned in any other place” for what they say or do there.
But a three-judge panel of the 11th Circuit that included two Trump appointees refused to shield Graham from testifying.
“Not ‘everything a Member of Congress may regularly do’ is a ‘legislative act within the protection of the Speech or Debate Clause’,” the appeals court said Thursday. “The clause has not been extended beyond the legislative sphere.”
But former White House counsel Donald McGahn, representing Graham, sent an appeal to Thomas and the Supreme Court urging the justices to intervene.
“Only this court can prevent the state-court questioning of Sen. Graham contrary to constitutional immunities,” he wrote.
McGahn and Graham played key roles in Trump’s nomination and the Senate’s confirmation of three members of the court: Justices Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett. Graham was chairman of the Judiciary Committee during part of Trump’s time in the White House.
It is not clear whether Monday’s order is significant.
University of Texas law professor Steve Vladeck, who closely follows emergency orders, wrote:
“To be clear, Justice Thomas issued an ‘administrative stay,’ which blocks the 11th Circuit ruling only temporarily while the full court decides whether to block it pending appeal,” he said in a tweet. “Such a ruling is not predictive of how the full court, or even Thomas, will vote on the stay.”
