Associate Justice Clarence Thomas during the official group photo at the Supreme Court in Washington, DC, U.S., Friday, October 7, 2022.
Eric Lee | Bloomberg | Getty Images
On Monday, Supreme Court Justice Clarence Thomas was temporarily blocked a subpoena demanding the testimony of Republican South Carolina Senator Lindsey Graham of a Georgian grand jury investigating the former president’s election interference donald trump.
The suspension of the subpoena came three days after Graham’s lawyers asked Thomas to delay the senator’s appearance before the grand jury, which is investigating possible criminal interference in Georgia’s 2020 presidential election.
Thursday, a panel of judges from the 11th Circuit US Court of Appeals unanimously rejected a request by Graham to temporarily block the assignment. The appeals panel said Graham had failed to prove he was likely to succeed in an appeal challenging the legality of the request for his testimony. Last month, a Federal district judge upheld the legality of the grand jury subpoena.
The grand jury is specifically investigating the actions of Trump and his allies, including Graham, who reached out to state election officials and others in the wake of the election, which was won in that state and nationally by the president Joe Biden.
Trump pressured state officials to take action that could have undone Biden’s victory, as part of a similar effort in other swing states whose losses by Trump ensured his defeat in the Electoral College.
Thomas, who is responsible for emergency requests such as Graham’s issued by the 11th Circuit, issued the stay of the subpoena on his own, without referring the matter to the full Supreme Court.
The conservative judge said the subpoena would be delayed pending a further order from Thomas or the Supreme Court. Two days before issuing the stay, Thomas told prosecutors in Fulton County, Georgia, who are presenting evidence to the grand jury, to respond by Thursday to Graham’s request to stay the subpoena.
The stay will give Graham’s attorneys and prosecutor more time to file briefs explaining whether or not the subpoena should be allowed.
Graham’s attorney, Donald McGahn, and a spokesperson for Fulton County prosecutor, Fani Willis, did not immediately respond to CNBC’s requests for comment.
Graham argued that the subpoena violates the Speech and Debate Clause of the U.S. Constitution, which protects members of Congress from legal risk for their comments related to legislative business.
He claims his call to Georgian Secretary of State Brad Raffensperger after Election Day 2020 was part of a legislative inquiry.
But the 11th Circuit panel, in its decision last week, said a federal district court judge ordered that a Fulton County prosecutor cannot question Graham about parts of the appeal that may be qualified as legislative activity.
“As the court has determined, there is a significant dispute as to whether his telephone calls with Georgia election officials were legislative investigations,” the appeals court ruling said.