A federal appeals court on Thursday ruled that Sen. Lindsey Graham, R-S.C., must testify before a Georgia grand jury examining possible election interference in the state two years ago.
The ruling is a win for Fulton County District Attorney Fani Willis and comes the same day NBC News confirmed that Trump White House counsel Pat Cipollone testified before the grand jury. Cipollone's appearance was first reported by CNN.
Graham has fought tooth-and-nail to avoid testifying. He filed suit in federal court seeking to quash a subpoena seeking details about phone calls he made to top election officials in Georgia amid complaints from then-President Donald Trump that there had been widespread voter fraud in the 2020 election.
Graham contended he shouldn't have to answer questions about the calls, which are now part of Willis's criminal investigation into possible election interference in the state, because he made them in his capacity as chair of the Senate Judiciary Committee at the time.
In a unanimous ruling Thursday, a three judge panel of the 11th Circuit U.S. Court of Appeals disagreed with Graham's argument that his actions were protected under the U.S. Constitution's speech and debate clause.
"Senator Graham has failed to demonstrate that he is likely to succeed on the merits of his appeal," and a stay blocking from his testifying should be lifted, the appeals court ruled.
The judges agreed with a lower court's ruling that Graham's view of those constitutional protections were too broad, and that he should be able to answer some key questions from the grand jury, including whether he consulted with Trump's campaign before making the calls.
"Senator Graham has failed to demonstrate that this approach will violate his rights under the Speech and Debate Clause. Even assuming that the Clause protects informal legislative investigations, the district court’s approach ensures that Senator Graham will not be questioned about such investigations," the ruling said.
It also sided with the lower court's finding that "there is significant dispute about whether his phone calls with Georgia election officials were legislative investigations at all."
An attorney for Graham did not immediately respond to a request for comment. Graham’s lawyers have previously indicated that if they lost in the 11th Circuit, they would appeal to the Supreme Court.
A spokesman for Willis declined to comment on the ruling.
Willis has said publicly she’s investigating a pair of post-election phone calls Graham made to Georgia Secretary of State Brad Raffensperger, a Republican, and his staff. Raffensperger has said Graham pressed him about whether he had the power to reject certain absentee ballots, which Raffensperger interpreted as a suggestion to toss out legally cast votes. Graham has denied that was his intention.
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,” according to the subpoena seeking his testimony.
Graham has been fighting the subpoena since it was issued in July, turning to federal court after an unsuccessful bid to challenge it in state court.
U.S. District Court Judge Leigh Martin May ruled against Graham in August, and said investigators could ask him about the circumstances of the calls, including whether there was “any coordination either before or after the calls with the Trump campaign’s post-election efforts in Georgia.”
She also ruled they could ask him about his public statements regarding the election in Georgia, and any efforts to “cajole” or “exhort” election officials in the state.
The appeals court agreed that "the three enumerated categories set out by the district court could not qualify as legislative activities under any understanding of Supreme Court precedent," and investigators could ask Graham about them.
The Fulton County grand jury is currently in a “quiet period” through Election Day, Nov. 8.
A source familiar with the matter told NBC News that prosecutors from Willis' office have secured grand jury testimony from former top White House lawyer Cipollone as part of their investigation.
Cipollone previously testified before the House committee investigating the Jan. 6 riot that, during White House meetings at the end of Trump's presidency, he forcefully pushed back on efforts by others to subvert the 2020 election results.
