What is the “speech or discussion” clause referred to in the Georgia survey?

ATLANTA (AP) — Sen. Lindsey Graham is clutching the Constitution’s “speech or debate” clause as a shield as he tries to avoid testifying before a special grand jury investigating whether former President Donald Trump and others tried to illegally influence his election 2020 in Georgia.

Fulton County District Attorney Fani Willis wants to question the South Carolina Republican about two phone calls he says he made to Georgia Secretary of State Brad Raffensperger and his staff in the weeks after the 2020 general election, as well as the circumstances and logistics around these calls. . Raffensperger said at the time that Graham asked him if he had the power to reject certain absentee ballots, a question he interpreted as a suggestion to throw out legal ballots.

Graham’s lawyers have argued that the calls were made as part of his legislative duties and that the speech or debate clause gives him absolute protection from having to testify.

The legal backlog has already delayed Graham’s deposition, which was set for Tuesday.


According to Article I of the Constitution, “for any Speech or Debate in either House,” US senators and members of the House “shall not be questioned in any other place.” Simply, the provision — “passed in the Constitutional Convention without debate and without opposition,” the U.S. Supreme Court wrote in a 1966 decision — is intended to shield members of Congress from questioning about official legislative acts.

In a 1968 decision regarding the conviction of a congressman under a conflict of interest statute, the Supreme Court wrote that the intent of the provision was “to prevent legislative intimidation and accountability to the other branches of government.”


The argument over whether Graham is protected by the clause in this case “is fundamentally about what kinds of acts are legislative versus what kinds of acts are not,” said Anthony Michael Kreiss, a constitutional law professor at the University of Georgia.

Actions such as speaking on the floor of the House or Senate, introducing legislation, working on a committee report and legislative fact-finding acts are clearly covered, he said. News interviews, publications unrelated to official duties, political activities and dealings with the executive branch are not covered, he said.


Graham argued that the calls to Raffensperger were related to his duties as a U.S. senator and as chairman of the Senate Judiciary Committee, so he should be completely protected from having to testify in this case. In court earlier this month, Graham’s attorney, Brian Lea, argued that the senator’s responsibility to decide whether to vote to certify Georgia’s election results, combined with voting on election-related legislation, made the calls part of his legislative duties.


Prosecutors argued that the calls are only the starting point. They also disputed the notion that the calls were solely about legislative issues, saying Graham was seeking to make changes to the way Georgia handles absentee ballots ahead of the January 2021 runoff election for the U.S. Senate.


Graham asked U.S. District Judge Lee Martin May to quash his subpoena and rule that he did not need to testify before the special grand jury. Last week, he refused to do so, meaning Graham was still due to appear on Tuesday.

May noted that the clause does not protect actions that are political rather than legislative. Even if he conceded that the subpoenas “consisted entirely of legislative fact-finding” and were thus protected, “there would still be important areas of potential testimony relevant to the grand jury investigation about which Senator Graham could be questioned who did not would in no way fall within the protections of the clause,” he wrote.


Graham appealed to the 11th U.S. Circuit Court of Appeals. A three-judge panel of the appeals court on Sunday issued an order temporarily putting May’s order that rejected Graham’s request to quash the subpoena on hold. That also temporarily put his appearance Tuesday before a special grand jury on hold.

The appeals court sent the case back to May, instructing her to determine whether Graham is “entitled to a partial annulment or modification of the subpoena” based on the speech or debate clause of the Constitution.

May on Monday ordered both sides to submit cases, with a final deadline of the middle of next week. It specifically asked them to “consider whether, and to what extent, certain alleged conduct (including specific lines of inquiry for phone calls) is protected from interrogation” by the clause.

And he asked them to discuss whether “informal inquiries” by members of Congress are protected by the clause, or whether it only applies to “investigative inquiries that come from a more official congressional source, such as an investigation authorized by a Senate subcommittee.”


It’s hard to say. If he finds that Graham is not entitled to any protections from the speech or debate clause for that matter, he could rule that any questions Willis’ team wants to ask are fair game, Professor Kreis said. But if he finds that certain lines of questioning would violate his privilege under the clause, he could set “narrow guidelines,” he said.

Once May rules on that narrow issue, the case will return to the 11th Circuit for further consideration.


Yes. U.S. Rep. Jody Hice, Republican of Georgia and a Trump ally, also filed a motion in federal court seeking to quash his subpoena. His case was also heard by Judge May. During a hearing, Hice’s lawyers agreed that there were some questions he could be asked before the special grand jury that would not be protected by any immunity.

May sent the case back to Fulton County Superior Court. He said at the time that if disputes arose over whether specific questions violated Hice’s federal immunities, he could bring the federal issues back to her for resolution. It was not immediately clear where that is.


Kinnard reported from Columbia, SC


Follow Brumback at http://twitter.com/katebrumback and Kinnard in http://twitter.com/MegKinnardAP.


More on investigations related to Donald Trump: https://apnews.com/hub/donald-trump

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