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Why Lindsey Graham's disturbing subpoena defense would make Trump proud

Last week, a special grand jury in Fulton County, Georgia, issued subpoenas to Sen. Lindsey Graham, Rudy Giuliani and several others seeking their testimony. The grand jury decided these individuals may have evidence relevant to its criminal investigation into whether there was interference by former President Donald Trump and others with the 2020 presidential votes in Fulton County, which includes Atlanta.

The senator’s attorneys minced no words regarding their intention to challenge the subpoena in court.

Graham, who after Trump lost Georgia’s electoral votes made at least two calls to Secretary of State Brad Raffensperger seeking information on Georgia’s election process, promptly announced that he would not comply with the grand jury subpoena. The senator’s attorneys minced no words regarding their intention to challenge the subpoena in court: “This is all politics. Fulton County is engaged in a fishing expedition and working in concert with the January 6 Committee in Washington. Any information from an interview or deposition with Senator Graham would immediately be shared with the January 6 Committee.” They further contended that because in November 2020 Graham was chairman of the Senate Judiciary Committee, he was “well within his right to discuss with state officials the processes and procedures around administering elections.”

On Monday a judge ordered Graham to comply. This is not surprising, because Graham has no legitimate grounds to refuse to do so. And yet, his and his attorneys’ response both disparages a vital prosecutorial process and impedes Georgia’s ability to investigate possible election corruption within its borders.

First, let’s be clear that the special grand jury in Georgia has an obvious and legitimate need for Graham’s testimony. Determining the senator’s intent in making those phone calls to Secretary Raffensperger is more than enough reason to justify the subpoena. The grand jury can consider whether his purpose in making those calls was in some way related to his position as chair of the Senate Judiciary Committee, if that is indeed his testimony.  

Second, Graham’s insistence that the investigation is politically motivated does not give him a legal right to disregard a properly issued subpoena. In the lead-up to issuing the subpoenas, Fulton County District Attorney Fani Willis did everything properly and by the book. She had evidence of attempts to overturn an election result — for example, a tape recording of Trump browbeating Raffensperger to “find” 11,779 votes needed to flip the state to Trump, and a later statement by Raffensperger that he felt this was a “threat” by Trump. But Raffensperger, obviously a key witness, had also made it clear that he would not answer any questions unless he was served with a grand jury subpoena. So in January 2022, following the process dictated by Georgia law, Willis wrote a letter to the Fulton County Superior Court requesting that a special grand jury be impaneled, and a majority of the county’s Superior Court judges approved the request. This week, that special grand jury issued its subpoenas to a number of individuals, including Graham; and because Graham is out of state, a judge approved the issuance of the subpoena to him.  

This is the way criminal grand jury investigations are conducted, and have been since our colonial times. Criminal grand juries like the one in Georgia, which has 23 citizen members, have the power to compel and hear witness testimony under oath, and they serve as a check on prosecutorial discretion. In Georgia, a special grand jury can investigate crimes, and while it does not have the power to bring an indictment, it can recommend that another grand jury bring an indictment.

Until now, the Georgia investigation was high-profile as to the issue under investigation, but routine as to process. Even Raffensperger’s demand for a subpoena was unsurprising, as public officials often decline to testify in a politically fraught matters unless legally required to do so. Raffensperger has already testified before the Fulton County special grand jury, as have several other Georgia officials.

But Graham’s response to the subpoena is disturbing. In a broader sense, what’s most troubling is his lack of respect for both the Georgia’s Fulton County district attorney’s office and the Superior Court judges who voted to impanel the special grand jury. Graham himself represents a state — South Carolina — and presumably understands the importance of any state’s ability to investigate alleged malfeasance within its borders. In the Georgia investigation, Graham asked and was assured that he is a mere witness and not a subject or a target of the investigation. So why not simply testify? 

And the special grand jury’s investigation is neither fanciful nor ungrounded. A presidential candidate — the sitting president of the United States — and his team directly called the officials responsible for counting votes to urge them to change the vote count to benefit the president. That cries out for investigation. Such a call would be irregular in an election for high school class treasurer; it’s wildly inappropriate in a United States presidential election. And if, in fact, the reality was not as bad as the perception, a sitting senator should want to be first in line to clear things up.

Bad conduct by politicians is nothing new, but in recent years one particularly insidious trend has been an erosion of respect by certain politicians for our prosecutorial and judicial institutions. Like Trump, many of our country’s senior leaders now regard our most valued institutions — the press, the courts, government prosecutors — as merely dials they can turn to further their personal or party goals. Some increasingly decide for themselves which rules they’ll follow and disregard those that don’t serve their purposes.

Graham’s challenge to this subpoena in the courts is the opposite of good faith. It is a delay and distortion tactic, echoing our former president. And that might be Trump’s saddest and most enduring legacy — a group of leaders still in office, destined to repeat his abusive behaviors.

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