Lindsey Graham's Atlanta grand jury testimony in Trump criminal probe delayed for now by appeals court order

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Sen. Lindsey Graham, R-S.C., was delivered a small win on Sunday, as a panel of federal appeals court judges temporarily postponed his testimony in Atlanta before a Fulton County special grand jury related to an escalating criminal probe investigating whether former President Donald Trump or his associates broke any state law in their efforts to have the 2020 presidential election results overturned in Georgia. 

The temporary stay issued by the 11th US Circuit Court of Appeals on Sunday delayed the South Carolina Republican’s testimony – previously scheduled for this coming Tuesday – until a lower court weighs arguments about the types of questions that can and cannot be posed to Graham due to protections granted to members of Congress under the U.S. Constitution. 

U.S. District Judge Leigh Martin May had denied Graham's request on Aug. 15 to quash his subpoena and on Friday rejected his effort to put her decision on hold while he appealed. 

Graham's lawyers then appealed to the 11th U.S. Circuit Court of Appeals.

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Sen. Lindsey Graham, R-S.C., addresses business leaders during a congressional conversation sponsored by the South Carolina Chamber of Commerce, Thursday, Aug. 18, 2022, in Columbia, S.C.  (AP Photo/Meg Kinnard)

The three-judge panel – comprised of two Trump appointees and one appointee of former President Bill Clinton – issued the order temporarily pausing May's order declining to quash the subpoena.

The appeals court judges directed May to determine whether Graham, "is entitled to a partial quashal or modification of the subpoena to appear before the special purpose grand jury based on any protections afforded by the Speech or Debate Clause of the United States Constitution." The clause protects members of Congress from testifying about anything related to their official legislative business.

Once May decides that issue, the case will return to the 11th Circuit for further consideration. 

Fulton County District Attorney Fani Willis opened her investigation after the disclosure of a Jan. 2, 2021, phone call between Trump and Georgia Secretary of State Brad Raffensperger. On the call, Trump suggested that Raffensperger could "find" the exact number of votes that would be needed to flip the election results in Georgia. Trump has denied any wrongdoing. He has described the call as "perfect."

Willis and her team have said they want to ask Graham about two phone calls they say he made to Raffensperger and his staff shortly after the 2020 general election. During those calls, Graham asked about "reexamining certain absentee ballots cast in Georgia in order to explore the possibility of a more favorable outcome for former President Donald Trump," Willis wrote in a petition seeking to compel his testimony.

Fulton County Georgia District Attorney Fani Willis poses for a photo in her office in Atlanta on Jan. 4, 2022.  (AP Photo/Ben Gray, File)

Graham also "made reference to allegations of widespread voter fraud in the November 2020 election in Georgia, consistent with public statements made by known affiliates of the Trump Campaign," she wrote.

During a hearing earlier this month on Graham's motion to quash his subpoena, Willis' team argued that Graham may be able to provide insight into the extent of any coordinated efforts to influence the results of the 2020 general election in Georgia.

Recently filing petitions to compel the testimonies of seven Trump advisers and associates, Willis has been ramping up the now 18-month probe ahead of the November midterm elections anticipating an announcement by Trump that he would run for a second term in 2024 could put a wrench in her investigations. 

Lawyers for Republican Georgia Gov. Brian Kemp filed a motion on Wednesday to quash a subpoena for his testimony, accusing the office of Willis, a Democrat, of pursuing his testimony for "improper political purposes." Willis rejected that characterization, describing it as dishonest.

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Sunday’s decision regarding Graham comes days after former New York City Mayor and Trump attorney Rudy Giuliani, who also attempted to avoid testifying in the Georgia probe, faced hours of questioning last Wednesday before the Fulton County grand jury, saying afterward that he satisfied his court-ordered obligation.

His high-profile appearance came the week after the FBI raided Trump’s residence at Mar-a-Lago. 

The Associated Press contributed to this report.