I Shall Not Be Questioned

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The SCOTUS is overrun with appeals from MAGAs seeking to avoid subpoenas as we head into the end of October; many see the endzone in sight, January 3rd. If they can just get to January 3rd, there will be no need to plead the Fifth or be forced to say, ‘Yes, well – that’s exactly what Trump told me to do, and I really didn’t have a choice given what he threatened.’ (This is clearly an extreme and somewhat flippant example, the principle holds). Lindsey Graham is next up and, in his reply brief to the Supreme Court, argues again that the Speech and Debate clause covers a possibly criminal phone call in an attempt to persuade the Georgia Secretary of State. He shall not be questioned regarding this reckless and unethical (if not illegal) phone call. From Law and Crime:

Attorneys for U.S. Sen. Lindsey Graham (R-S.C.) on Friday submitted a reply brief in a U.S. Supreme Court case which seeks to excuse him from testifying about his telephone calls surrounding the 2020 presidential election in Georgia.

In the reply brief, Graham reiterated the argument that he “shall not be questioned.”

The reply brief continued to lean into what it described as “two neutral doctrines of constitutional law: Speech or Debate Clause immunity” and “and sovereign immunity” as reasons to shut down Graham’s requested testimony in Georgia.

As most of us learned in senior year Civics, the Speech and Debate Clause is meant to protect free speech during heated debates on the Senate and House floor. The framers didn’t want Senators and Representatives worried about false statements made in anger and on and on. It is highly unlikely that the Framers imagined it extending to a phone call asking about matching signatures as a means to “check” votes in certain areas. Of course, the framers wouldn’t know what a phone was, so perhaps the better example is that the framers didn’t envision the clause expanding to a note by carrier pigeon, begging that the Secretary of State to check the signatures of wealthy white landowners, just in case one might’ve been signed by a woman, or – signed in a hurry and appearing “different enough” such as to throw it out.

But Graham “will not be questioned.”

One doesn’t need a lawyer to question whether this is the most effective tone and aggressiveness one should take. There is one slight worry, one based upon the behavior we’ve seen from the MAGAs of late and not some tinfoil hat conspiracy, and that is that Graham is saying that he will not be questioned, no matter what the SCOTUS says because he’s from a co-equal branch and will determine the speech and debate clause parameters himself.

One might say, “Yes, but that is certain jail.” Well, true, almost certainly. But if he is jailed, it would be for contempt of court, whereas if he “will be questioned,” he may face prison based on a conspiracy to defraud the public in order to steal a presidential election. One need not be a lawyer to appreciate the difference. One thing, though, it is more than possible that Graham could be convicted of “Not being questioned,” and conspiracy despite never having answered the subpoena. After all, Graham “will not be questioned,” but he has been recorded.



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