{"id":1618569,"date":"2022-08-22T08:01:11","date_gmt":"2022-08-22T12:01:11","guid":{"rendered":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/?p=1618569"},"modified":"2022-08-22T08:01:25","modified_gmt":"2022-08-22T12:01:25","slug":"with-georgia-das-get-trump-grand-jury-on-hold-lindsey-graham-and-the-first-amendment-are-still-in-the-crosshairs","status":"publish","type":"post","link":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/with-georgia-das-get-trump-grand-jury-on-hold-lindsey-graham-and-the-first-amendment-are-still-in-the-crosshairs\/","title":{"rendered":"With Georgia DA\u2019s Get-Trump Grand Jury On Hold, Lindsey Graham And The First Amendment Are Still In The Crosshairs"},"content":{"rendered":"<aside class=\"mashsb-container mashsb-main mashsb-stretched\"><div class=\"mashsb-box\"><div class=\"mashsb-count mash-medium\" style=\"float:left\"><div class=\"counts mashsbcount\">38<\/div><span class=\"mashsb-sharetext\">SHARES<\/span><\/div><div class=\"mashsb-buttons\"><a class=\"mashicon-facebook mash-medium mash-nomargin mashsb-noshadow\" href=\"https:\/\/www.facebook.com\/sharer.php?u=https%3A%2F%2Fwww.conservativenewsdaily.net%2Fbreaking-news%2Fwith-georgia-das-get-trump-grand-jury-on-hold-lindsey-graham-and-the-first-amendment-are-still-in-the-crosshairs%2F\" target=\"_top\" rel=\"nofollow\"><span class=\"icon\"><\/span><span class=\"text\">Facebook<\/span><\/a><a class=\"mashicon-twitter mash-medium mash-nomargin mashsb-noshadow\" href=\"https:\/\/twitter.com\/intent\/tweet?text=&amp;url=https:\/\/www.conservativenewsdaily.net\/breaking-news\/?p=1618569&amp;via=ConservNewsDly\" target=\"_top\" rel=\"nofollow\"><span class=\"icon\"><\/span><span class=\"text\">Twitter<\/span><\/a><a class=\"mashicon-subscribe mash-medium mash-nomargin mashsb-noshadow\" href=\"#\" target=\"_top\" rel=\"nofollow\"><span class=\"icon\"><\/span><span class=\"text\">Subscribe<\/span><\/a><div class=\"onoffswitch2 mash-medium mashsb-noshadow\" style=\"display:none\"><\/div><\/div>\n            <\/div>\n                <div style=\"clear:both\"><\/div><\/aside>\n            <!-- Share buttons by mashshare.net - Version: 4.0.47--><p>Sunday morning, the 11th Circuit Court of Appeals temporarily froze efforts by the Fulton County district attorney\u2019s office to haul South Carolina Sen. Lindsey Graham to Georgia for questioning before a grand jury. However, a complete halt to the abuse of the grand jury process by the Democrat Fulton County prosecutor is needed to protect important First Amendment interests.<\/p>\n<h2>How It Happened<\/h2>\n<p>In July, news broke that the Democrat prosecutor for Fulton County, Georgia, Fani Willis, had subpoenaed to testify before her \u201cspecial purpose grand jury\u201d a slew of lawyers representing Donald Trump, as well as high-level Republicans at both the state and national levels, including Graham. Upon learning of the subpoena, Graham immediately filed a motion to quash, arguing that the Speech or Debate Clause of the Constitution, sovereign immunity, and the \u201chigh-ranking official\u201d doctrine prevented the county district attorney from questioning him before a Georgia grand jury.<\/p>\n<p>Last week, federal Judge Leigh Martin May, a Barack Obama appointee, denied Graham\u2019s motion to quash, concluding neither sovereign immunity nor the \u201chigh-ranking official\u201d doctrine protected Graham, and that it was too early to tell whether the DA\u2019s questioning of the South Carolina senator would run afoul of the Speech or Debate Clause.\u00a0<\/p>\n<p>The Speech or Debate Clause of the Constitution provides that \u201cfor any Speech or Debate in either House, [members] shall not be questioned in any other Place.\u201d This clause applies not merely to \u201cspeech\u201d and \u201cdebate\u201d in the literal sense, but to all \u201clegislative acts.\u201d Thus, in seeking to quash the subpoena, Graham argued that the two telephone conversations he had with Georgia Secretary of State Brad Raffensperger on which Willis\u2019s subpoena focused, qualified as \u201clegislative acts\u201d because \u201chis questioning of the secretary of state on reported irregularities in Georgia\u2019s election were \u2018integral\u2019 to the \u2018functioning of the legislative process.\u2019\u201d\u00a0<\/p>\n<p>In rejecting that argument, the federal court concluded that \u201cthe grand jury would not necessarily be precluded from all inquiries about the calls unless every aspect of the calls was determined to fall within the sphere of legitimate legislative activity.\u201d But at this stage of the proceedings and without knowing the specific questions to which Graham objected, the court concluded it was premature to address whether the conversation fell within the protection of the Speech or Debate Clause.<\/p>\n<p>The federal court further ruled that the Fulton County district attorney had the right to question Graham on other issues \u201cin addition to his knowledge about topics outside of the calls, such as his alleged coordination with the Trump Campaign before and after the calls\u2026\u201d Such information is \u201cwithin the investigative purview of the grand jury,\u201d Judge Martin May concluded because the special purpose grand jury was convened for the purpose of \u201cinvestigating the facts and circumstances relating directly or indirectly to possible attempts to disrupt the lawful administration of the 2020 elections in the State of Georgia.\u201d<\/p>\n<p>With the subpoena requiring him to appear before the special purpose grand jury on Tuesday, Graham\u2019s legal team immediately prepared to appeal the denial of the motion to quash. Initially, the Fulton County prosecutor\u2019s office told Graham\u2019s attorneys that \u201cwe don\u2019t object to moving the date pending resolution of appeal,\u201d but then reneged on its commitment and opposed any delay. This course reversal forced Graham\u2019s lawyers to seek a stay of the court\u2019s ruling, first in the district court, which denied the motion, and then in the 11th Circuit Court of Appeals, which granted the stay on Sunday.<\/p>\n<p>In staying the Fulton County prosecutor\u2019s subpoena, the federal appellate court also reversed in part the lower court\u2019s order rejecting Graham\u2019s request for a \u201cpartial-quashal.\u201d While Graham\u2019s legal team had maintained that the Speech or Debate Clause prevented Willis from requiring the South Carolina senator to <em>even appear <\/em>in Fulton County, as a backstop Graham argued that if the federal trial court \u201crefused to quash the subpoena in its entirety, the Court should enter an order potentially modifying the subpoena or prescribing areas of inquiry that are barred.\u201d Judge Martin May refused to consider Graham\u2019s request for a \u201cpartial-quashal\u201d that would limit the grand jury questioning.\u00a0<\/p>\n<p>The federal appellate court\u2019s Sunday morning order not only temporarily stayed the subpoena pending the appellate court\u2019s resolution of Graham\u2019s motion to stay pending appeal, but also sent the case back to the district court, directing the court \u201cto 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.\u201d Following the resolution of that question by Judge Martin May, the case will return to the 11th Circuit, according to yesterday\u2019s order.\u00a0<\/p>\n<p>That the 11th Circuit Court of Appeals not only issued the temporary stay of Graham\u2019s subpoena but also remanded the case, directing the trial court to address the limits of the Speech or Debate Clause, proves significant because it indicates a federal court is finally taking seriously the constitutional protection afforded a United States senator now under attack by a Georgia county prosecutor.<\/p>\n<p>Willis\u2019s disregard for the Speech or Debate Clause represents the least offensive part of the Fulton County prosecutor\u2019s witch hunt. By targeting political opponents with a sham investigation that promises a fishing expedition inquiring into legal and legitimate Republican strategies, the Democrat district attorney runs headlong into the First Amendment. However, because pre-Trump our country has never seen such a blatant abuse of power and weaponizing of the grand jury system, precedent provides scant support to stop Willis and other Democrats.<\/p>\n<p>On the contrary, case law makes clear that the \u201cgrand jury\u2019s investigative powers are necessarily broad, in keeping with the principle that the public \u2018has a right to every man\u2019s evidence,\u2019\u201d with courts stressing that this \u201cfundamental maxim\u201d \u201ctraces back to 1742.\u201d Decisions further stress that a \u201cgrand jury has not merely the right, but indeed the duty, \u2018to inquire into the existence of possible criminal conduct.\u2019\u201d And thus \u201cit may investigate \u2018merely on suspicion that the law is being violated, or even because it wants assurance that it is not.\u2019\u201d Or as one federal appellate court said, \u201ca grand jury\u2019s investigation is not fully carried out until every available clue has been run down and all witnesses examined in every proper way to find if a crime has been committed.\u201d<\/p>\n<p>While this precedent makes clear that \u201cthe First Amendment generally does not offer protection from a duty to testify before the grand jury,\u201d dicta recognizes that \u201charassment of a political dissident with no expectation that any evidence concerning the commission of a crime would be forthcoming would constitute an abuse\u201d of the grand jury process. Further, case law suggests that where an \u201cadequate showing of abuse of process\u201d has been made, a court should hold an evidentiary hearing to determine if the grand jury process constitutes \u201cpolitical harassment.\u201d<\/p>\n<h2>A Closer Look at the Grand Jury<\/h2>\n<p>Three significant facts\u2014above and beyond the Speech or Debate Clause\u2014should compel the federal courts to scrutinize the Fulton County prosecutor\u2019s \u201cspecial counsel grand jury\u201d more closely and to provide a check on the Democrat DA.<\/p>\n<p>First, Willis is not merely a Democrat targeting Republicans but obtained approval to launch the special purpose grand jury investigation from Chief Judge Christopher Brasher\u2014the same judge who <a href=\"https:\/\/thefederalist.com\/2022\/08\/09\/georgia-prosecutor-targeting-trump-bases-court-filing-on-fake-news\/\" target=\"_blank\" rel=\"noreferrer noopener\">delayed<\/a> Trump\u2019s court challenge to the Georgia election results for a month when he failed to timely appoint a judge eligible to hear the case.\u00a0<\/p>\n<p>Willis is also not merely a Democrat in name only but represents a well-connected up-and-comer in the state party. And after launching her special counsel grand jury investigation into Trump, she headlined a fundraiser for a Democrat candidate for lieutenant governor, Charlie Bailey. This November, Bailey will face off against Georgia Republican Burt Jones for the No. 2 spot in the governor\u2019s office. And low and behold, Willis also used the grand jury to target Jones, publicly branding him a target of the probe.\u00a0<\/p>\n<p>A state court judge put a stop to that farce, however, ruling that neither Willis nor her team of prosecutors could subpoena nor investigate Jones given the clear conflict of interest. But Willis continues to oversee the targeting of other Republicans such as Graham.<\/p>\n<p>Second, while on paper the Fulton County special counsel grand jury appears focused on a legitimate inquiry, being authorized to \u201cinvestigat[e] the facts and circumstances relating directly or indirectly to possible attempts to disrupt the lawful administration of the 2020 elections in the State of Georgia,\u201d in court filings, Willis revealed her investigation rests on a lie.\u00a0<\/p>\n<p>As I <a href=\"https:\/\/thefederalist.com\/2022\/08\/09\/georgia-prosecutor-targeting-trump-bases-court-filing-on-fake-news\/\" target=\"_blank\" rel=\"noreferrer noopener\">detailed<\/a> earlier this month, \u201cWillis told a Georgia federal court that \u2018a central focus\u2019 of her investigation into the 2020 election \u2018is former President Donald Trump\u2019s January 2, 2021, telephone call to Georgia Secretary of State Brad Raffensperger requesting that the Secretary \u201cfind 11,780 votes\u201d in the former President\u2019s favor.\u2019\u201d And \u201cwith that opening paragraph, the Fulton County Democrat revealed the hoax of an investigation she is running,\u201d because \u201cTrump did not request that Raffensperger \u2018find 11,780 votes.\u2019 Period. It never happened.\u201d<\/p>\n<p>Because Willis continues to push a grand jury investigation premised on a provable lie, the courts should force Willis to justify the grand jury proceedings in total.<\/p>\n<p>Third, the questioning by the Fulton County prosecutor\u2019s special counsel grand jury implicates serious First Amendment rights, including the right to speech, to association, and to petition the government for redress. In seeking to question Graham (and presumably others), Willis maintains Graham has important knowledge \u201cconcerning \u2018the Trump Campaign[] and other known and unknown individuals involved in the multi-state, coordinated <em>efforts to influence the results<\/em> of the November 2020 election in Georgia and elsewhere.\u2019\u201d<\/p>\n<p>But this \u201cimportant knowledge\u201d\u2014if it does not involve information gathering for Speech or Debate purposes\u2014concerns political strategy. And allowing a Democrat prosecutor to ask Republicans about their legal attempts to \u201cinfluence the results\u201d of an election, through litigation or lobbying of election officials to enforce the law or investigate allegations of fraud or irregularities, reeks of \u201cextensive interference with political groups\u2019 internal operations and with their effectiveness,\u201d which the courts have prohibited in other situations.\u00a0<\/p>\n<p>Further, while courts may not \u201clightly interfer[e]\u201d with an investigative act, and \u201cevery reasonable indulgence of legality must be accorded\u201d it, given the \u201csubstantial First Amendment interests\u201d political parties have and the significant evidence that Willis\u2019s investigation is a sham, the federal courts have an important role in checking this political witch hunt.<\/p>\n<p>The Republican National Committee presented similar First Amendment arguments in opposing a subpoena issued by the House\u2019s Jan. 6 Committee to a third party that possessed records related to communications of the RNC. That case currently awaits a decision by the D.C. Circuit, but the lower court\u2019s analysis in that case proves informative. Further, the D.C. District Court\u2019s conclusion that the Jan. 6 Committee\u2019s interest \u201c\u2018must reflect the seriousness of the actual burden\u2019 imposed by the subpoena on the RNC\u2019s First Amendment rights,\u201d applies equally here.<\/p>\n<p>While the Speech or Debate Clause provides\u2014or should provide\u2014some protection against a prosecutor running rogue, the weaponizing of the grand jury by state-level Democrats presents no less of a breach of the Rubicon than the Trump Mar-a-Lago raid. But because our country has never seen this scenario before, it is unclear whether First Amendment jurisprudence will be up to the task of countering the continuing abuse justified by a desire to destroy political enemy No. 1.<\/p>\n<hr class=\"wp-block-separator\" \/>\n<p>\n  Margot Cleveland is The Federalist&#8217;s senior legal correspondent. She is also a contributor to National Review Online, the Washington Examiner, Aleteia, and Townhall.com, and has been published in the Wall Street Journal and USA Today. <\/p>\n<p>Cleveland is a lawyer and a graduate of the Notre Dame Law School, where she earned the Hoynes Prize\u2014the law school\u2019s highest honor. She later served for nearly 25 years as a permanent law clerk for a federal appellate judge on the Seventh Circuit Court of Appeals. Cleveland is a former full-time university faculty member and now teaches as an adjunct from time to time. <\/p>\n<p>As a stay-at-home homeschooling mom of a young son with cystic fibrosis, Cleveland frequently writes on cultural issues related to parenting and special-needs children. Cleveland is on Twitter at @ProfMJCleveland. The views expressed here are those of Cleveland in her private capacity.<\/p>\n<div class=\"article-comments mt-30 mt-sm-60\">\n<div class=\"article-comments-container d-flex flex-column align-items-center py-30\">\n    <img loading=\"lazy\" decoding=\"async\" width=\"110\" height=\"106\" src=\"https:\/\/thefederalist.com\/wp-content\/uploads\/2021\/12\/fdrlst-mark.svg\" class=\"img-fluid mb-20\" alt=\"The Federalist logo eagle mark\" \/>    <\/p>\n<p>Unlock commenting by joining the Federalist Community.<\/p>\n<p>    <a href=\"https:\/\/thefederalist.com\/plans\/pricing\/\" class=\"btn btn-on-white\">Subscribe<\/a>  <\/div>\n<\/p><\/div>\n","protected":false},"excerpt":{"rendered":"<p>Sunday morning, the 11th Circuit Court of Appeals temporarily froze efforts by the Fulton County district attorney\u2019s office to haul South Carolina Sen. Lindsey Graham to Georgia for questioning before<\/p>\n","protected":false},"author":499,"featured_media":2315279,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_mo_disable_npp":"","fifu_image_url":"","fifu_image_alt":"","footnotes":""},"categories":[],"tags":[],"class_list":["post-1618569","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry"],"_links":{"self":[{"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/posts\/1618569","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/users\/499"}],"replies":[{"embeddable":true,"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/comments?post=1618569"}],"version-history":[{"count":0,"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/posts\/1618569\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/media\/2315279"}],"wp:attachment":[{"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/media?parent=1618569"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/categories?post=1618569"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/tags?post=1618569"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}