The “Speech and Debate Clause”: Senator Lindsey Graham’s Temporary Protection from 2020 Election Subpoena
On October 24th, Justice Clarence Thomas granted Senator Lindsey Graham’s request to block a subpoena requiring him to testify about his actions following the 2020 election. This decision comes after Fulton County District Attorney Fani Willis issued a subpoena to obtain answers surrounding a phone call Senator Graham had with a Georgia election official.
In his argument, Senator Graham claimed that he is immune to Willis’s questioning due to the “speech and debate” clause found in the U.S. Constitution. This clause asserts that the actions of a Member of Congress may not be questioned pertaining to their duties [1]. In practice, this clause has allowed for members of Congress to avoid civil suits regarding speech used during official acts [2]. According to Graham’s attorneys, Senator Graham’s phone call with the Georgia election official was a matter of official duty, and is therefore protected by the speech and debate clause.
However, while the clause does protect some official legislative conduct, the Court held in United States v. Brewster that the clause does not protect political speech and conduct – this includes any actions conducted outside the official duties of the member [3]. Willis may attempt to argue that this phone call had little to do with Graham’s official duties, but instead was conducted outside the legislative process.
Thomas responded to this request as he has been assigned to assess requests in that region, although his handling of any 2020 election cases has been questioned. Federal law states that any judge or justice must recuse themselves if a relative may “have an interest that could be substantially affected by the outcome of the proceeding” [4]. Given his wife’s alleged interest in the 2020 election results, the next action on Senator Graham’s subpoena may come from the full Court, rather than solely from Justice Thomas. What the Court decides to do next will have an impact on other pending investigations into members of Congress and their actions following the 2020 election.
