Graham had claimed his actions were legitimate legislative activity protected by the Constitution’s “speech or debate clause” and that he was protected from disclosing them to a grand jury.
But Tuesday’s unsigned order said lower courts already had protected him from questioning that related to his official duties.
“The lower courts assumed that the informal investigative fact-finding that Senator Graham assertedly engaged in constitutes legislative activity protected by the Speech or Debate Clause … and they held that Senator Graham may not be questioned about such activities,” the order said.
“The lower courts also made clear that Senator Graham may return to the District Court should disputes arise regarding the application of the Speech or Debate Clause immunity to specific questions. Accordingly, a stay or injunction is not necessary to safeguard the Senator’s Speech or Debate Clause immunity.”
The action dissolved a temporary stay that had been granted by Justice Clarence Thomas while the full court considered the issue.
The Fulton County special grand jury investigating alleged 2020 presidential election interference by Trump and his allies has called for the senator to testify by Nov. 17. Jurors already have heard testimony from several Trump lawyers, including Rudy Giuliani, John Eastman and Boris Epshteyn. A judge has also ruled that former White House chief of staff Mark Meadows must testify.
Fulton County District Attorney Fani Willis (D) wants to question Graham about calls he made to Georgia election officials soon after Trump lost the election to Joe Biden. Prosecutors say Graham has “unique knowledge” about the Trump campaign and the “multistate, coordinated efforts to influence the results” of the election in Georgia and elsewhere.
The senator’s lawyers have said that they have been informed that Graham is a witness in — and not a target of — the probe. Graham’s lawyer Donald F. McGahn told the Supreme Court that Graham is immunized by the Constitution and that without a stay, “Sen. Graham will suffer the precise injury he is appealing to prevent: being questioned in state court about his legislative activity and official acts.”
Last month, a district court judge said prosecutors could not question Graham about portions of his calls that were legislative fact-finding. But the judge said Willis’s team could explore coordination with the Trump campaign in its post-election efforts in Georgia, public statements regarding the 2020 election and any efforts to “cajole” or “exhort” Georgia election officials.
A three-judge panel of the U.S. Court of Appeals for the 11th Circuit agreed that those actions “could not qualify as legislative activities under any understanding of Supreme Court precedent.” Two of the judges were nominated by Trump.
Willis had warned the Supreme Court that if Graham is allowed to avoid testimony entirely, the grand jury “will be foreclosed indefinitely from pursuing unique information, analyzing any resulting evidence, or using the Senator’s testimony to explore additional routes of valid inquiry.” It is scheduled to conclude its work by April.
Tom Hamburger contributed to this report.