Clarence Thomas Makes Major Decision in 2020 Election Investigation

By Abby Liebing October 25, 2022 at 2:13pm

While an Atlanta grand jury looks into the 2020 election, they subpoenaed Republican Sen. Lindsey Graham of South Carolina. But Supreme Court Justice Clarence Thomas has temporarily blocked that subpoena.

This move from Thomas has been interpreted as a decision that was likely made in order to give the Supreme Court extra time to consider the arguments presented by Graham and the grand jury over whether or not the senator will be forced to testify, CNN reported.

“Ii is ordered that the Aug. 15, 2022, order of the United States District Court for the Northern District of Georgia, case No. 1:22-CV-03027, as modified by the district court’s September 1, 2022 order, is hereby stayed pending further order of the undersigned or of the Court,” the order from Thomas read.

Graham is one of the Republican officials that Fulton County’s Democratic District Attorney Fani Willis subpoenaed after alleging that he and others pressured Brad Raffensperger, Georgia’s secretary of state, to reverse the outcome of the 2020 election, Axios reported.

Former President Donald Trump lost Georgia in the election.

But Graham has argued that his efforts in Georgia after the election were “legislative activity,” Axios added.

Upon receiving the subpoena demanding his testimony on Nov. 17 in Atlanta, Graham immediately requested a temporary block, CNBC News reported.

But on Thursday, judges from the 11th Circuit U.S Court of Appeals rejected Graham’s request.

So Graham filed an emergency request on Friday with Thomas, since he is the circuit justice for the 11th circuit and is, thus, in charge of handling emergency requests from the Georgia court, Axios reported.

Do you agree with Thomas's decision?

“Under Rules 22 and 23 of this Court, and under 28 U.S.C. § 1651, U.S. Sen. Lindsey Graham respectfully applies for an emergency order staying the district court’s order pending appeal and, if necessary, enjoining the Georgia ‘special grand jury’ from questioning Sen. Graham until final resolution of his appeal,” the filing read.

“Without a stay, Sen. Lindsey Graham will soon be questioned by a local Georgia prosecutor and her ad hoc investigative body about his protected ‘Speech or Debate’ related to the 2020 election. This will occur despite the Constitution’s command that Senators ‘shall not be questioned’ about ‘any Speech or Debate,'” the emergency filing continued.

Regarding the accusations against Graham concerning the 2020 election, the emergency motion also further outlined the reasons that Graham called Raffensperger after the election.

According to the filing, Fulton County’s District Attorney Willis alleged that Graham “‘called [Secretary of State Brad Raffensperger]’ and ‘ask[ed] about [Georgia’s] signature match procedure’ for absentee ballots … and about allegations of voter fraud.”

But the motion explained that Graham called Raffensperger, not to pressure him about the results, but for information he needed as he reviewed election-related issues.

“Sen. Graham needed this information for a certainly impending vote on certifying the election under the Electoral Count Act. He also served as Chairman of the U.S. Senate Committee on the Judiciary reviewing election-related issues (including possible national standards for mail-in voting). After the phone calls, Sen. Graham relied on the information gained from the calls both to vote Joe Biden ‘the legitimate President of the United States’ … and to co-sponsor legislation to amend the Electoral Count Act,” the filing continued.

Graham’s filing then claimed that these actions were part of a legislative investigation, so investigation into such proceedings is not allowed.

“The courts below recognized that all of that reflects a protected ‘legislative investigation[]’—and that questioning about it, as such, is prohibited … Most courts that have addressed similar issues hold that the Speech or Debate Clause ‘forbids inquiry into acts which are purportedly or apparently legislative, even to determine if they are legislative in fact,'” the filing read.

Graham’s emergency motion went on for 41 pages, giving background concerning his actions regarding the election and the subpoenas and investigation of Willis that resulted.

In response to the filing, Thomas ordered the temporary halt of the subpoena.

With Thomas’ decision to order an “administrative stay,” the court has more time to consider Graham’s emergency filing, the New York Times reported.

This hold on the subpoena will also give Graham’s legal team, as well as the Georgia prosecutors, time to file explanations as to why the subpoena should be either enforced or rejected, CNBC noted.

Thomas requested that the Georgia investigators respond by Thursday, CNN reported.

Meanwhile, Thomas’ decision has elicited many responses.

Some have accused the justice of acting unethical by making this decision.

“Another day, another conflict of interest for Justice Thomas revealed. Add this to the laundry list of impeachable offenses he has committed. He has no business being on the Supreme Court, and no shame,” Democratic Rep. Jan Schakowsky of Illinois tweeted.

Another day, another conflict of interest for Justice Thomas revealed. Add this to the laundry list of impeachable offenses he has committed. He has no business being on the Supreme Court, and no shame.https://t.co/sHjpFRh3v2

— Jan Schakowsky (@janschakowsky) October 24, 2022

However, Politico’s senior legal affairs reporter, Kyle Cheney, pointed out that what Thomas did was fairly normal legal practice since Graham filed an emergency motion.

“It would’ve been far more unusual to let Fulton County enforce its subpoena against Graham while he had a live emergency motion for an injunction pending,” Cheney tweeted.

Clarence Thomas maintaining the status quo to give full SCOTUS time to review Lindsey Graham’s appeal is not actually unusual.

Fulton was already due to respond to Graham’s appeal by Oct. 27.

— Kyle Cheney (@kyledcheney) October 24, 2022