ATLANTA — Six days after major news organizations declared Donald Trump the loser of the 2020 presidential election, his allies were applying a desperate full-court press in an effort to turn his defeat around, particularly in Georgia.
Pro-Trump lawyer Sidney Powell went on television claiming there was abundant evidence of foreign election meddling that never ultimately materialized. Another lawyer, Lin Wood, filed a lawsuit seeking to block the certification of Georgia’s election results.
That same day, Nov. 13, 2020, Sen. Lindsey Graham, R-S.C., one of Trump’s most ardent supporters, made a phone call that left Brad Raffensperger, Georgia’s Republican secretary of state, immediately alarmed. Graham, he said, had asked if there was a legal way, using the state courts, to toss out all mail-in votes from counties with high rates of questionable signatures.
The call would eventually trigger an ethics complaint, demands from the left for Graham’s resignation and a legal drama that is only culminating now, nearly two years later, as the veteran lawmaker fights to avoid testifying before an Atlanta special grand jury that is investigating election interference by Trump and his supporters.
Graham has put together a high-powered legal team, which includes Don McGahn, a White House counsel under Trump. While Graham’s lawyers say they have been told that he is only a witness — not a target of the investigation — that could change as new evidence arises in the case, which is being led by Fani Willis, district attorney of Fulton County, Georgia. Her efforts to compel Graham to testify have been aided by legal filings from a number of high-profile, outside attorneys, including William Weld, a Trump critic and former Republican governor of Massachusetts.
Underscoring the risks for Graham, lawyers for 11 people who have been designated as targets who could face charges in the case have said they were previously told their clients were only “witnesses, not subjects or targets,” according to court filings.
On Sunday, the 11th U.S. Circuit Court of Appeals temporarily blocked Graham from testifying and directed a lower court to determine whether he was entitled to a modification of the subpoena based on constitutional protections afforded to members of Congress. After that, the appeals court said, it will take up the issue “for further consideration.” The matter is now back before Leigh Martin May, a U.S. District Court judge who already rejected Graham’s attempt to entirely avoid testifying; she asked the sides to wrap up their latest round of legal filings by next Wednesday. It seems increasingly likely that Graham will testify next month.
Willis has said that she is weighing a broad array of criminal charges in her investigation, including racketeering and conspiracy. She has already informed at least 18 people that they are targets, including Rudy Giuliani, Trump’s former personal lawyer. Giuliani fought to avoid testifying in person but was forced to appear before the grand jury last week.
Regarding Graham, Willis’ office is seeking to learn more about his role in Trump’s post-election strategy, and who he spoke to on the Trump campaign team before or after he called Raffensperger. While Trump assailed Raffensperger on Twitter as a “so-called Republican” on the same day as that call, Graham told CNN that the former president did not encourage him to place the call.
Graham has insisted that he did nothing improper, and his lawyers have argued that a sitting senator should not have to answer questions about his conduct in a state court.
“We will go as far as we need to go and do whatever needs to be done to make sure that people like me can do their jobs without fear of some county prosecutor coming after you,” Graham said recently.
That Graham finds himself sparring with the district attorney because of his involvement with Trump might have seemed unlikely before the 2016 election, when he called Trump “unfit for office” and “a race-baiting, xenophobic religious bigot.” But he swiftly became a key ally of Trump and spent the days after the 2020 election railing against its legitimacy. “If Republicans don’t challenge and change the U.S. election system, there will never be another Republican president elected again,” he told Fox News on Nov. 9, 2020. Democrats win, he said, “because they cheat.” (A spokesperson for Graham, Kevin Bishop, noted that the senator ultimately voted to certify the election of Joe Biden.)
At the time he made the call to Raffensperger, Graham was chairman of the Senate Judiciary Committee, and he has said that he was acting in his official capacity. His legal team did not respond to requests from The New York Times to provide evidence to suggest that the committee was conducting an official inquiry.
May has rejected arguments that Graham was acting solely in his Senate capacity, and said that by Graham’s account of the Raffensperger call, he was trying to influence state election rules rather than solely explore federal remedies. Indeed, in a television interview a few days after the call, Graham said he suggested to Raffensperger new state procedures for verifying signatures on mail-in ballots and creating an appeal process. (He also said at the time that he made similar calls to Doug Ducey, the Republican governor of Arizona, another state Trump narrowly lost.)
Raffensperger’s account of his conversation with Graham — and his inference that Graham wanted to explore tossing mail-in votes from counties with high rates of questionable signatures — has been backed up by one of the secretary of state’s aides who was also on the call. Even so, Graham made no overt request to discard ballots, according to another Raffensperger aide, Gabriel Sterling. Graham has said that it is “ridiculous” to suggest he was asking for votes to be thrown out.
During a hearing in federal court this month, Brian C. Lea, one of Graham’s lawyers, said: “We have one phone call, and that phone call has been described by everybody. Everybody acknowledges that it is about electoral process and about verification of absentee ballots, how you ensure security.”
He said the “only dispute” was brought about by Raffensperger’s account that it was implied that legal ballots should be thrown out. “Strip away the implication that Secretary of State Raffensperger claims to have picked up, all you have is a conversation about electoral process.” Legal precedent, he argued, meant that “motive is irrelevant.”
But May told Graham’s lawyers that it was critical to understand why the call was made.
“You keep saying that it’s improper for the court to look at motive, but how can I classify an act as political or legislative without knowing why the act was done?”
Michael J. Moore, a former U.S. attorney in Georgia, said Graham “should be afraid of being wrapped up in any conspiracy indictment.”
“I wouldn’t even want to show up as an unindicted co-conspirator in the case she is trying to build,” he added, referring to Willis. “I don’t know that her RICO efforts will survive appeals,” he said, but Graham “still wouldn’t want to be in it.”