“The justice’s order was an “administrative stay” that will almost certainly not be the Supreme Court’s last word on the matter.
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WASHINGTON — Justice Clarence Thomas on Monday temporarily shieldedSenator Lindsey Graham, Republican of South Carolina, from having to answer questions from a special grand jury in Georgia investigating efforts to overturn former President Donald J. Trump’s election loss in the state.
Justice Thomas’s brief order was an “administrative stay,” meant to give the court some breathing room to weigh the senator’s emergency application asking the Supreme Court to bar the grand jury from questioning him based on the Constitution’s speech or debate clause and on the doctrine of sovereign immunity.
On Saturday, Justice Thomas ordered prosecutors to respond to the application by Thursday. Such a request for a response is almost always a sign that the full court will weigh in on the matter.
Prosecutors appear to be particularly interested in any efforts Mr. Graham may have made to urge officials in Georgia, including its secretary of state, Brad Raffensperger, to address allegations of voting irregularities before Congress was to vote in January 2021 to certify that President Biden was the legitimate winner of the presidential election.
Mr. Graham’s lawyers said that he was reviewing election-related issues in his role as chairman of the Senate Judiciary Committee at the time.
On Thursday, a unanimous three-judge panel of the U.S. Court of Appeals for the 11th Circuit, in Atlanta, refused to block a trial judge’s ruling that Mr. Graham could be required to answer some but not all questions from the grand jury.
The panel, which included two judges appointed by President Donald J. Trump, drew a distinction between Mr. Graham’s activities in investigating supposed irregularities in the 2020 election and some of his other statements and conduct. Though the lower courts are divided over whether “an informal investigation by an individual legislator acting without committee authorization is ever protected legislative activity under the speech and debate clause,” the panel said, it would assume that the clause applied to such inquiries.
But some other questions, the panel said, were fair game. “Activities that fall outside the clause’s scope include, for example, ‘cajoling’ executive officials and delivering speeches outside of Congress.”
The panel said it would not block questioning of Mr. Graham about “communications and coordination with the Trump campaign regarding its postelection efforts in Georgia, public statements regarding the 2020 election, and efforts to ‘cajole’ or ‘exhort’ Georgia election officials.”
Even so, the panel said, Mr. Graham “may still seek to assert his speech and debate clause privilege if there is a dispute about whether a concrete question implicates his fact-finding relating to certification” of the vote.
In his emergency application, Mr. Graham said that all of his activities were related to his legislative obligations and that the proposed questions were a “backdoor” attempt to examine them.
“Without a stay, Senator Lindsey Graham will soon be questioned by a local Georgia prosecutor and her ad hoc investigative body about his protected ‘speech or debate’ related to the 2020 election,” Mr. Graham’s lawyers wrote in their application. “This will occur despite the Constitution’s command that senators ‘shall not be questioned’ about ‘any speech or debate.’”