Judge Says Lindsey Graham Can Be Questioned About Election Activity

ATLANTA — In a setback for Senator Lindsey Graham, a federal judge ruled on Thursday that prosecutors can ask him about certain elements of his November 2020 phone calls with Brad Raffensperger, the Georgia secretary of state. Mr. Raffensperger has said that in those calls, Mr. Graham suggested rejecting mail-in votes in the presidential election from counties with high rates of questionable signatures.

The order from U.S. District Judge Leigh Martin May must now be taken up for consideration by the 11th Circuit Court of Appeals. It is the latest twist in a protracted legal drama in which Mr. Graham has sought to avoid appearing before a special grand jury in Atlanta that is investigating efforts by Donald J. Trump and his allies to overturn Mr. Trump’s narrow loss in the state in 2020.

Mr. Graham’s phone calls to Mr. Raffensperger were followed, weeks later, by a call from Mr. Trump himself, who asked Mr. Raffensperger to “find” 11,780 votes to put him over the top.

Mr. Graham has argued that he should not have to comply at all with a subpoena to testify before the special grand jury. His lawyers raised issues of sovereign immunity and the fact that Mr. Graham is “a high-ranking government official.”

Judge May rejected those arguments in a ruling in mid-August. But a week later, the appellate court asked the judge to determine whether limits should be applied to Mr. Graham’s testimony, based on the U.S. Constitution’s Speech or Debate clause, which protects lawmakers from being questioned about their legitimate legislative functions.

The judge’s order on Thursday included some good news for Mr. Graham. It shielded the South Carolina Republican from having to answer questions about those aspects of the phone calls that amounted to “legislative fact-finding” on his part.

But Judge May rejected Mr. Graham’s argument that all questions about the calls should be barred.

Secretary Raffensperger, the judge wrote, “has stated publicly that he understood Senator Graham to be implying or otherwise suggesting that he (Secretary Raffensperger) should throw out ballots.”

She continued: “As the Court has previously stated, any such ‘cajoling,’ ‘exhorting,’ or pressuring of Secretary Raffensperger (or any other Georgia election officials) to throw out ballots or otherwise change Georgia’s election processes, including changing processes so as to alter the state’s results, is not protected legislative activity under the Speech or Debate Clause.”

The judge’s order will also allow questions about Mr. Graham’s “alleged communications and coordination with the Trump Campaign and its postelection efforts in Georgia, as well as into Senator Graham’s public statements related to Georgia’s 2020 elections.”

A spokesman for Mr. Graham said in a statement Thursday, “We are pleased that the district court recognized that Senator Graham’s testimony is protected by the Speech or Debate Clause. He will continue to defend the institutional interests of the Senate and the Constitution before the Eleventh Circuit.”

Mr. Graham — a former critic of Mr. Trump who later became a fan, confidante and golfing partner of the former president — has maintained that he did nothing wrong by calling Mr. Raffensperger a few days after the election, a time when other allies of Mr. Trump were making wild and unfounded claims about foreign interference in the election and were trying unsuccessfully to erect legal roadblocks to stop the certification of the Georgia vote.

Mr. Graham’s lawyers have argued that Mr. Graham made the calls because he needed to “run down allegations of irregularities in Georgia” before he voted to certify that Joseph R. Biden was the legitimate winner of the presidential election. They also said, among other things, that Mr. Graham was reviewing election-related issues in his role as chair of the Senate Judiciary Committee at the time.

The Georgia investigation is being led by District Attorney Fani T. Willis of Fulton County, a Democrat who has said she was looking into the possibility of a broad, multi-defendant racketeering or conspiracy case. At least 18 people have been identified as targets of the inquiry, meaning they could eventually be charged.

Mr. Graham has put together a high-powered legal team, which includes Don F. McGahn II, who was a White House counsel under Mr. Trump. The legal team has said that prosecutors have indicated to them that Mr. Graham is a witness, not a target, of the investigation. But other people tangled up in the Georgia inquiry have said they were told that they were merely witnesses, only to later be told they were targets facing possible indictment. Some legal observers have said that Mr. Graham runs a risk of potential criminal exposure in the matter.

A number of high-profile Trump supporters have unsuccessfully fought subpoenas in recent weeks, and have made appearances at the closed-door proceedings of the special grand jury looking into postelection interference. Among them are Rudolph W. Giuliani, Mr. Trump’s former personal lawyer, and John Eastman, a lawyer who developed strategies to block certification of the 2020 election. Mr. Giuliani appeared before the grand jury on Aug. 17, and Mr. Eastman did so on Wednesday.

Mr. Giuliani has been identified as a target of the investigation, and on Thursday, a lawyer for Mr. Eastman said that his client was most likely a target as well. Both men have denied that they broke any laws.

Mr. Raffensperger, in his memoir, said that Mr. Graham’s call to him, which came 10 days after Election Day, was baffling. “I didn’t understand why Senator Graham would interject himself into a neighboring state’s affairs,” he wrote.

Mr. Raffensperger, a Republican, said that Mr. Graham told him he was worried that some Georgia counties might have approved invalid absentee ballots, “and he seemed to imply that we could audit all signatures and throw out the ballots from counties that had the highest frequency of error rates,” Mr. Raffensperger wrote. “But no state can do that.”

Ms. Willis’s office has indicated in court documents that prosecutors wanted to learn more about Mr. Graham’s role in Mr. Trump’s postelection strategy, and about who he spoke to on the Trump campaign team before or after he called Mr. Raffensperger. This line of inquiry would track with an effort to build a multi-defendant case that there was a broad criminal effort to violate Georgia election law, whether Mr. Graham ends up being one of those defendants or not.

“These are going to be very uncomfortable inquiries for the senator,” said Norman Eisen, a lawyer who served as special counsel to the House Judiciary Committee during the first Trump impeachment. Ms. Willis, he said, “is allowed questioning that is nonlegislative, that is very important to the investigation,” including, he noted, questions about whether Mr. Graham asked that ballots be thrown out, or that Georgia’s election procedures or tallies be changed.

A spokesperson for the district attorney’s office declined on Thursday to comment on the judge’s order. Mr. Graham’s lawyers have been instructed to file a new brief with the appeals court by Oct. 11.