How Lindsey Graham thinks he can avoid testifying in Georgia’s election probe

But Graham has fought testifying based on one particular part of the Constitution that he says protects him: the speech or debate clause. A federal appeals court put his testimony on hold while the argument is considered. But it’s failed for other lawmakers.

Here’s what to know about the speech or debate clause and how it could affect a major investigation into Trump’s election plot.

Why investigators want to talk to Graham

Shortly after it was clear Joe Biden won Georgia — and the election — Graham called up Georgia’s Republican secretary of state, Brad Raffensperger. Graham was a prominent election doubter, and he asked Raffensperger whether the secretary of state could throw out all mailed ballots in parts of Georgia, Raffensperger has said. The request by a sitting U.S. senator to throw out thousands of legally cast votes caught Raffensperger off guard.

Graham says he was asking because he was interested in how election officials gauged whether ballots were legitimate, and he denies he asked the secretary of state to throw out votes.

“It sure looked like he was wanting to go down that road,” Raffensperger told The Washington Post in an interview after the election.

Graham’s intentions on that call could make or break his argument about whether he has to testify.

Graham talked to Raffensperger again in December. Graham is a witness, not a target — meaning investigators want to know what he knows, but they aren’t considering charging him with a crime. (Giuliani, by contrast, is a target.)

The Georgia criminal investigation into Trump and his allies, explained

How Graham is fighting against testifying

He’s arguing he is constitutionally protected from investigations into his official duties as a U.S. senator.

Graham is right that there is a clause in the Constitution, called the speech or debate clause, that says a member of Congress can’t be prosecuted for what they say or do for their job.

The most clear-cut interpretation is that a lawmaker’s speech is protected when he or she is talking on the Senate floor, or say, in a committee hearing. That work is in the realm of the “legislative sphere” and thus protected, says Mike Stern, a former lawyer for the nonpartisan counsel’s office in the House of Representatives.

The intention behind this clause, says Georgetown University law professor Josh Chafetz, is “to prevent various sorts of harassment that would interfere with members of Congress performing their official duties.”

But there are gray areas to this, and Stern says Graham’s calls with Raffensperger could fall into that category.

Graham could claim he was talking to Raffensperger about election security because he was genuinely interested in this issue and wanted to gather facts to consider proposing legislation. (In fact, that is what he’s claiming.) That would probably be constitutionally protected speech, even if Raffensperger found the call political in nature.

But the burden of proof is on Graham to show he was focused on his legislative duties rather than helping out a political ally, Stern said.

From what we know publicly, Graham was by Trump’s side as the then-president tried to overturn his election loss. Graham asked the Justice Department to investigate a baseless voter fraud claim in Pennsylvania, he was in close contact with Trump leading up to the Jan. 6, 2021, attack on the U.S. Capitol, and he was the main senator defending Trump during his trial in the Senate for impeachment. In other words, Graham appeared to be a willing ally to Trump’s efforts to overturn his election loss.

Still, the whole point of this clause, Chafetz said, “is to prevent courts from poking their noses too far into congressional business.” That could bode well for Graham.

What happens if Graham loses his argument

Graham could be one of several Republican lawmakers to claim that his speech is protected and still be forced to testify in this investigation. Rep. Jody Hice (R-Ga.), who echoed Trump’s voter fraud claims and ran unsuccessfully for secretary of state as an election denier, also tried the speech-or-debate clause defense recently and lost.

It seems that the courts are trying to figure out whether there should at least be parameters around Graham testifying, Stern said. A federal district court judge said she was unconvinced by Graham’s defense and said he should testify. But Graham appealed to a higher court, the 11th Circuit. And on Sunday, that court agreed with Graham that it’s at least worth pausing his testimony to figure out what questions might be unconstitutional.

This is a unique case that combines a state prosecution with questions about federal lawmakers’ powers, so it could take a while to sort out whether Graham can testify, Stern said.

The most recent, high-profile example of a senator losing the speech-or-debate defense came in a 2017 corruption trial for Sen. Robert Menendez (D-N.J.).

One of the questions raised was whether Menendez improperly talked to government officials about millions in Medicare fees that a political donor of his owed. Menendez claimed he was inquiring about these fees for legislative purposes and thus his phone calls couldn’t be considered in court. Menendez lost that battle — but ultimately wasn’t convicted.