ATLANTA — Six days after major news organizations declared Donald Trump the loser of the 2020 presidential election, his allies were applying a desperate press in an effort to overturn his defeat, particularly in Georgia.
Pro-Trump attorney Sidney Powell went on television arguing that there was ample evidence of foreign election meddling that never materialized. Another attorney, Lynn Wood, filed suit seeking to block the certification of Georgia’s election results.
That same day, November 13, 2020, Sen. Lindsey Graham, RSC, one of Trump’s staunchest supporters, made a phone call that immediately left Brad Raffensperger, Georgia’s Republican Secretary of State, worried. Graham, he said, had asked if there was a legal way, using state courts, to throw out all mail-in ballots from counties with high rates of questionable signatures.
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The call would eventually spark an ethics complaint, demands from the left for Graham’s resignation and a legal drama that is only coming to a head now, nearly two years later, as the veteran lawmaker struggles to avoid testifying before an Atlanta subcommittee investigating the election interference by Trump and his supporters.
Graham has assembled a powerful legal team, which includes Don McGahn, White House counsel under Trump. While Graham’s attorneys say they’ve been told he’s only a witness — not a target of the investigation — that could change as new evidence emerges in the case, which is being led by Fulton County, Georgia, district attorney Fannie Willis. Her efforts to compel Graham to testify were aided by legal filings from several high-profile, outside lawyers, including William Weld, a Trump critic and former Republican governor of Massachusetts.
Underscoring the risks for Graham, attorneys for 11 people named as targets who could face charges in the case said they had previously said their clients were only “witnesses, not subjects or targets,” according to court records.
On Sunday, the 11th U.S. Circuit Court of Appeals temporarily barred Graham from testifying and asked a lower court to determine whether he was entitled to a subpoena modification based on constitutional protections afforded to members of Congress. After that, the appeals court said, it will take up the matter “for further consideration.” The matter is now back before US District Court Judge Leigh Martin May, who already rejected Graham’s attempt to avoid testifying altogether. asked the sides to complete the final round of legal filings by next Wednesday. It looks increasingly likely that Graham will testify next month.
Willis said she is looking at a wide range of criminal charges in her investigation, including racketeering and conspiracy. He has already notified at least 18 people that they are targets, including Rudy Giuliani, Trump’s former personal lawyer. Giuliani fought to avoid testifying in person, but was forced to appear before a grand jury last week.
As for Graham, Willis’ office is seeking to learn more about his role in Trump’s post-election strategy and who he spoke to on the Trump campaign team before or after calling Raffensperger. While Trump attacked Raffensperger on Twitter as a “so-called Republican” the same day as that call, Graham told CNN that the former president did not encourage him to make the call.
Graham insisted he did nothing improper, and his lawyers argued that a sitting senator should not have to answer questions about his conduct in a state court.
“We’re going to go as far as it takes and do whatever it takes to make sure that people like me can do their jobs without fear of some county attorney coming after you,” Graham said recently.
That Graham was at odds with the attorney general over his involvement with Trump might have seemed unlikely before the 2016 election, when he called Trump “unfit for office” and “a race-baiting, xenophobic religious bigot.” But he quickly became a key Trump ally and spent the days after the 2020 election challenging his legitimacy. “If Republicans don’t challenge and change the US electoral system, another Republican president will never be elected,” he said on Fox News on November 9, 2020. Democrats are winning, he said, “because they cheat.” (A spokesman for Graham, Kevin Bishop, noted that the senator ultimately voted to certify Joe Biden’s election.)
At the time he made the call to Raffensperger, Graham was chairman of the Senate Judiciary Committee and said he was acting in his official capacity. His legal team did not respond to The New York Times’ requests to provide evidence suggesting the commission was conducting a formal investigation.
May has rejected arguments that Graham was acting solely in his Senate capacity and said that in Graham’s account of the Raffensperger call, he was trying to influence state election rules rather than solely exploring federal remedies. Indeed, in a television interview a few days after the call, Graham said he proposed to Raffensperger new state procedures for verifying signatures on mail-in ballots and creating an appeals process. (He also said at the time that he made similar calls to Doug Ducey, the Republican governor of Arizona, another state Trump narrowly lost.)
Raffensperger’s account of his conversation with Graham — and his conclusion that Graham wanted to explore mail-in ballots from counties with high rates of questionable signatures — is supported by one of the secretary of state’s aides who was also on the call. Even so, Graham did not make an overt request that ballots be thrown out, according to another Raffensperger aide, Gabriel Sterling. Graham said it was “ridiculous” to suggest he was asking for votes to be thrown away.
During a hearing in federal court this month, Brian C. Lea, one of Graham’s attorneys, said: “We have a phone call, and that phone call has been described by everybody. Everyone recognizes that this is an election process and absentee verification, how do you ensure security.”
He said the “only disagreement” was caused by Raffensperger’s account that it was implied that legal ballots should be thrown out. “Take away the innuendos that Secretary of State Raffensperger claims to have taken, all you have is a discussion of the electoral process.” Legal precedent, he argued, meant that “motive is irrelevant.”
But May told Graham’s lawyers it was crucial they understood why the call was made.
“You keep saying that it is not right for a court to look at motives, but how can I call an act political or legislative without knowing why the act was done?”
Knowing what happened surrounding the call could prove crucial to Willis, the Fulton County district attorney.
“The judge in her ruling and the DA in her testimony described many different issues beyond the content of the call that could affect the DA’s charging decision,” said Gwendolyn Keyes Fleming, a former district attorney for neighboring DeKalb County. “That includes whether there is sufficient evidence of a connection between anything Senator Graham did or said and allies of the former president — or even the former president himself — to establish some of the elements of a possible conspiracy or RICO charge.”
Fleming co-authored a 114-page Brookings Institution report on the case that found Trump “ran a substantial risk of potential state indictments based on multiple crimes.” The report called the proposal to exclude all ballots from certain counties “extreme and outlandish.”
Immediately after the call, three legal experts, including Walter Shaub, the former director of the US Office of Government Ethics, wrote to the chairman and vice chairman of the Senate ethics committee decrying Graham’s contact with Raffensperger, which took place while the Georgia election officials were conducting a manual count.
“Any call by a sitting chairman of the Senate Judiciary Committee to a state election official during an ongoing vote count is inherently coercive and indicates an attempt to influence the outcome,” they wrote. “The allegation that Senator Graham made a behind-the-scenes call to a member of his own political party, without a formal investigation having been launched, suggests that he hoped to act out of public view.”
The two other signatories to the complaint, University of Pennsylvania law professor Claire O. Finkelstein and University of Minnesota Richard W. Painter, said Wednesday that the ethics committee had not contacted them or Shaub about the complaint. , except to acknowledge that they had received it. Ethics committee staff did not return calls for comment.
Michael J. Moore, a former U.S. attorney in Georgia, said Graham “should be afraid of getting embroiled in any conspiracy charge.”
“I wouldn’t even want to appear as an unprosecuted co-conspirator in the case he’s trying to build,” he added, referring to Willis. “I don’t know that her RICO efforts will survive the appeals,” he said, but Graham “still wouldn’t want to be on it.”
For Graham, the case represents the latest chapter in his relationship with Trump. He was first a critic and then a fierce supporter, especially after the election. But on January 6, 2021, as blood and broken glass continued to be cleaned up from the US Capitol after a riot by a pro-Trump mob, he told the Senate: “Count me out” and “Enough is enough.” Two days later, he was jeered as a traitor by Trump supporters at Ronald Reagan National Airport in Washington. Within weeks, he was back at Trump’s golf course at Mar-a-Lago in Florida.
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