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
Supreme Court Justice Clarence Thomas on Monday temporarily blocked a subpoena demanding Republican South Carolina Sen. Lindsey Graham testify from a Georgia grand jury investigating election interference by former President Donald Trump.
The subpoena suspension came three days after Graham’s attorneys asked Thomas to delay the senator’s appearance before the grand jury, which is investigating possible criminal interference in Georgia’s 2020 presidential election.
On Thursday, a panel of judges at the U.S. Court of Appeals for the 11th Circuit unanimously rejected a request by Graham to temporarily block the subpoena, which asks the senator to testify Nov. 17 at a courthouse in ‘Atlanta.
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 contacted state election officials and others in the wake of the election, which was won in that state and in nationwide by President Joe Biden.
Trump pressured state officials to take action that could have undone Biden’s victory, part of a similar effort in other swing states whose losses by Trump ensured his defeat in the Electoral College. In an early January 2021 phone call with Georgian Secretary of State Brad Raffensperger, Trump urged him to “find” enough votes to erase Biden’s margin of victory.
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 prosecutors more time to file briefs explaining whether or not the subpoena should be allowed.
Graham’s attorney, Donald McGahn, did not immediately respond to a request for comment.
A spokesperson for Fulton County District Attorney Fani Willis declined to comment, saying prosecutors would respond to Graham’s Supreme Court application on Thursday as directed by Thomas.
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 Raffensperger after Election Day 2020 was part of a legislative inquiry.
But the 11th Circuit panel, in its ruling 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.
Rep. Mark Pocan, D-Wisconsin, blasted Thomas on Twitter for blocking the subpoena, linking it to Judge Virginia “Ginni” Thomas’ wife, who had encouraged Trump White House officials and state lawmakers to reverse Biden’s victories in swing states.
“Disgusting. Any other judge in the country would recuse themselves,” Pocan tweeted, using the legal term for a judge refusing to take a case due to conflict of interest or other reasons.
Rep. Jan Schakowsky, a Democrat from Illinois, tweeted, “Another day, another conflict of interest for Judge Thomas has come to light.”
“Add that to the long list of inscrutable offenses he has committed. He has no business in the Supreme Court and no shame,” Schakowsky added.