State prosecutors in Georgia are seeking to subpoena Senator Lindsey Graham of South Carolina to testify in a grand jury investigation of alleged efforts to unlawfully alter the outcome of the 2020 presidential election in Georgia. Prosecutors want to question Graham about telephone calls he made to Georgia election officials in the weeks following the November election. Graham has moved to quash the process issued by the Georgia judge supervising the grand jury on three grounds: (1) compelling his testimony would violate the Speech or Debate Clause; (2) sovereign immunity precludes state court process against a U.S. senator for acts occurring in his official capacity; and (3) requiring Graham to testify would unduly interfere with his legislative responsibilities in the Senate.
Today I do not want to focus on the merits of these legal arguments, but on the Senate’s role in this process. Although the Senate (unlike the House) does not have a rule providing explicit procedures for handling incoming subpoenas, Senate precedent and practice require authorization from the chamber before senators, officers or staff may comply with such subpoenas.
For example, on June 8, 2022, the Senate agreed to a resolution submitted by Majority Leader Schumer for himself and Minority Leader McConnell authorizing the former general counsel to the Secretary of the Senate to testify in a criminal case involving a January 6 defendant. The resolution recited the Senate’s longstanding (if debatable) position that “by the privileges of the Senate of the United States and Rule XI of the Standing Rules of the Senate, no evidence under the control or in the possession of the Senate may, by the judicial or administrative process, be taken from such control or possession but by permission of the Senate.” In other words, evidence which the Senate regards as under its control or in its possession may not be provided to a court unless the Senate decides that providing permission “will promote the ends of justice consistent with the privileges of the Senate.”
Does the evidence sought from Graham fall into this category? The answer seems to be yes, at least if one accepts Graham’s characterization of it. According to his motion to quash, the purpose of his contact with Georgia officials was “to gather information relevant to his oversight responsibilities as Chairman of the Senate Judiciary Committee” and “his obligations under the Electoral Count Act of 1887.” Whether or not such activity falls within the legislative sphere protected by Speech or Debate (as Graham contends), it certainly would be sufficiently official in nature to trigger the requirement that the Senate grant permission before testimony may be given.
Graham, of course, does not want to testify and therefore has little incentive to seek a Senate resolution authorizing him to do so. Moreover, although he has not raised lack of Senate permission as a basis for quashing the Georgia process in his initial filing (perhaps for tactical reasons or perhaps because his private lawyers are unaware of this aspect of Senate practice), he may seek to do so at a later date.
This leaves the possibility that another senator will introduce a resolution authorizing Graham to provide the requested testimony. Clearly such a resolution would not receive unanimous consent, which is the way that such resolutions are invariably passed. Furthermore, even if the resolution were adopted, it would not prevent Graham from asserting the Speech or Debate privilege as to some or all of his testimony. It would, however, preclude him from refusing to comply based on the lack of Senate permission and it would likely undermine his sovereign immunity argument because (I think, though I am not sure) any such immunity would belong to the Senate as a whole rather than the individual member.
Finally, a Senate resolution would deal with Graham’s third objection relating to potential conflicts between the Senate’s legislative schedule and a potential grand jury appearance. When the Senate authorizes testimony by a sitting senator, it insists that any court appearance must be consistent with Senate Rule VI, which provides that senators must not absent themselves from the service of the Senate without leave, and therefore that any testimony may not occur when the senator’s attendance at the Senate is necessary for the performance of his or her legislative duties.
Of course, whether or not such a resolution is introduced will depend less on the legal technicalities than whether one or more senators believe that the subject of Graham’s potential testimony is sufficiently important to merit the Senate’s attention. We shall see