“Senator Graham has failed to demonstrate that this approach will violate his rights under the Speech and Debate Clause,” the order states, referring to the constitutional provision that protects lawmakers from being questioned about legislative activity.
Graham can ask the full appeals court to reconsider the order or ask the Supreme Court to intervene.
The Atlanta grand jury investigating alleged 2020 presidential election interference has already heard testimony from several Trump lawyers, including Rudy Giuliani, John Eastman and Boris Epshteyn. Willis has also sought testimony from former White House chief of staff Mark Meadows.
Willis 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 2020 election in Georgia and elsewhere.
Graham’s legal team has said in court filings that his actions were legitimate legislative activity protected by the Constitution’s “speech and debate clause.” The senator’s lawyers have said that they have been informed that Graham is a witness — and not a target of the investigation.
Last month, a District Court judge said prosecutors could not question Graham about portions of the calls that were legislative fact-finding. But the judge said Willis’s team could question the senator about possible 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.
In its order Thursday, the 11th Circuit agreed with the lower court judge that those actions “could not qualify as legislative activities under any understanding of Supreme Court precedent.”
“We thus find it unlikely that questions about them would violate the Speech and Debate Clause,” according to the six-page order from three judges, including two nominated by Trump.
Graham may still assert his rights, the court noted, if there is a dispute about certain questions.
The 11th Circuit noted that the Supreme Court has never considered whether an informal investigation by a lawmaker “acting without committee authorization is ever protected legislative activity under the Speech and Debate Clause.”
The district attorney’s office and a spokesman for Graham did not immediately respond to a request for comment.
