Judging Freedom - Justice Thomas Halts Sen. Graham’s Georgia Election Probe Testimony

Episode Date: October 24, 2022

Hi, everyone. Judge Andrew Napolitano here for Judging Freedom. Today is Monday, October 24, 2022. It's about 325 here on the east coast of the United States. Here's a fascinating constitutional issue, which now is before the Supreme Court. As many of you know, we have discussed it several times here on Judging Freedom, and you see it in the newspapers all the time. One of the criminal investigations that I've argued is the most dangerous for former President Donald Trump is the criminal investigation conducted by District Attorney Fannie Willis of Atlanta, Fulton County, Georgia, which is the county in which the city of Atlanta is located. And this is an investigation into whether or not there was any improper efforts to alter the vote in the 2020 presidential election in Georgia. You remember there's that famous tape

of then-President Trump saying to Secretary of State of Georgia, Brad Raffersberger, just find me 11,789 votes, whatever one vote more was than the number that Joe Biden won. I may not have the number correctly. Just find me those votes. Did that constitute a crime? All right. That's really for a grand jury to decide. But this, of course, has expanded into other things that were done in addition to this conversation between the president and the Georgia secretary of state. This has now expanded into whether or not Republicans falsely swore under oath that 16 electors were the true electors for the state of Georgia rather than the electors that were chosen by the people. What are electors? You remember, every state has the same number of electors as it has representatives in Congress. So Wyoming, for example, has three electors. It has one

representative in the House and two senators. Georgia has 16 electors, two U.S. senators and 14 members of the House. The electors are not the same people as the senators and the members of Congress. So when Joe Biden was deemed by the Secretary of State of Georgia to have received a majority by 11,780 votes or whatever the number was, popular votes in Georgia, then the Secretary of State certified the 16 Democratic electors who promised to sign their Electoral College votes in behalf of Joe Biden. He certified them as the true electors from Georgia. Now along comes some lawyers for Donald Trump. One of them was Rudy Giuliani and says, no, no, no, no. We have the 16 true electors because we know that the Republican electors were

really chosen. And all of those people signed documents swearing under oath that they were the true electors. Those allegations under oath, of course, now turn out to be perjury. So the DA in Fulton County is addressing that. In her efforts to find out who committed perjury, who made an honest mistake, she's asking all the people who spoke to Brad Raffensperger about this. And one of those people was Senator Lindsey Graham, Republican the time he spoke to Georgia Secretary of State Raffensperger, was the chair of the Senate Judiciary Committee. Now that the Democrats control the Senate numerically, he's no longer the chair. So Senator Graham was subpoenaed by the grand jury before whom D.A. Willis is presenting her evidence to testify before that grand jury. And he moved to quash the subpoena. And a federal judge said, no, testify. Then the 11th Circuit Court of Appeals said, well, you know, the subpoena is a little broad. You're asking for a lot of information

from him, some of which he doesn't have to give. Well, what information would he not have to give? Okay, here's where it gets, for me, constitutionally fascinating, and I'm happy to share my thoughts with you. There is a clause in the Constitution called the Speech and Debate Clause, and that clause basically says members of Congress shall not be called into account for anything they say, any speech or debate in which they participate on the floor of the House or the Senate. The courts have since expanded that to include committee hearings as well. And the courts have interpreted to mean going to the Senate or the House or coming from the Senator of the House. When Patrick Kennedy, the late Senator Ted Kennedy's son,

was famously involved in a one-car DWI where he wrapped his car around a tree at 3.30 in the morning, even though his blood alcohol content was above the permissible amount in the District of Columbia, he had the presence of mind to say, I'm on my way to the House of Representatives, because if he's on his way to the House of Representatives, he can't be stopped for anything, even a criminal event. Senator Graham argues that the conversation that he had with Brad Raffensperger was in furtherance of a speech he was planning to give on the floor of the United States Senate, and therefore it's protected, and therefore he can't be compelled to testify about it. So the 11th Circuit said, well, he's right. There are things he can't be compelled to testify about, but he can be compelled to testify about everything, except the speech he was planning to give. So then a federal judge in Georgia changed her ruling, narrowing the subpoena

to say, you can't ask him questions about this speech he was going to give, but you could certainly ask him questions about the conversation he had with Brad Raffensperger and who put him up to it and what his goal was. He appealed that decision a second time to the 11th Circuit. And this time the 11th Circuit ruled unanimously, nope, you've got to comply with the subpoena. Friday, he filed an appeal to Justice Clarence Thomas. Justice Thomas is what's called the circuit justice, meaning he's the member of the Supreme Court who was assigned to hear at the initial stage,

key at the initial stage, emergency appeals arising in the 11th Circuit, Alabama, South Carolina, Georgia, Florida. So not South Carolina, I'm sorry, Alabama, Georgia, Florida, this one arising out of Georgia. So Justice Thomas read the papers apparently over the weekend and just a few hours ago said, okay, I'm going to stop the subpoena from being enforced and present this to the rest of the court. I'm surprised Justice Thomas did this for two reasons. One, I think, and I say this as a friend of both of them, of Senator Graham and Justice Thomas. We've had meals together. We've laughed together. In the case of Senator Graham,

I've interrogated him on air on Fox News. In the case of Senator Graham, I've interrogated him on air on Fox News. In the case of Justice Thomas, I've introduced him to give speeches at gatherings we both have attended. I'm surprised he took the case for two reasons. One, I think Senator Graham's case is very, very weak. And he, like any other witness to a potential criminal act, is compelled to testify to what he saw. If he was planning to give a speech, they can isolate those parts that would be protected and they're not able to ask him about.

They can isolate those from what he is forced to tell the grand jury. I'm sorry to say the second part. I'm surprised Justice Thomas took this because his wife, Mrs. Thomas, is probably going to be called to testify before the same grand jury. And he should not be involved in a case involving this grand jury. But we'll see what happens. The court will unanimously, including Justice Thomas, vote to deny this appeal. I've been wrong before. I could be wrong again. We'll see. Interesting case to me.

I hope to you. Morris, we get it. Judge Napolitano, judging freedom.