Opposition to Lindsay Graham’s, Michael Flynn’s, and Mark Meadows’s Arguments to Avoid Testifying —Fulton County Special Grand Jury Investigation into Election Interference (GA)

As part of District Attorney Fani Willis’s investigation into attempts by former President Donald Trump and his allies to influence the 2020 presidential election in Georgia, the Fulton County superior court granted the DA’s request to convene a special grand jury. The special grand jury began its months-long investigation in May 2022, by examining evidence and hearing testimony from witnesses. Many witnesses readily testified before the special grand jury. However, several individuals attempted to fight their subpoenas in court to avoid testifying.  

The States United Democracy Center, along with co-counsel, represented former and current prosecutors in submitting amicus briefs to argue that three of these individuals’ arguments to avoid testifying were meritless. All three—Lindsey Graham, Michael Flynn, and Mark Meadows—eventually lost their court battles. 

Senator Lindsey Graham argued that he should not have to testify in front of the special grand jury because his actions are covered by legislative privilege, which provides immunity from having to testify over certain legislative acts.  

On August 4, 2022, a bipartisan group of former federal prosecutors represented by States United and Kaplan Hecker & Fink LLP filed an amicus brief in the United States District Court for the Northern District of Georgia opposing Senator Graham’s motion to quash his subpoena. The former federal prosecutors, who have years of experience with subpoenas and claims of privilege, argued that the subpoena seeks information about Senator Graham’s actions (related to two phone calls he made to Georgia Secretary of State Brad Raffensperger regarding the state’s election process) that does not fall within the privilege.  

The district court initially rejected Senator Graham’s novel immunity theories, denied his motion to quash, and remanded the matter back to the state court. On limited remand, the district court prohibited questioning about “investigatory fact-finding that allegedly took place” during Senator Graham’s phone calls to Raffensperger, but allowed questioning on many other aspects of Senator Graham’s actions to continue.  

On October 7, 2022, the former federal prosecutors filed another amicus brief in the United States Court of Appeals for the Eleventh Circuit, arguing that the district court’s decision is correct: Senator Graham is not categorically immune from testifying about non-legislative activity, and the appellate court should deny Senator Graham’s motion for an emergency stay.  

On October 20, 2022, a panel of the Eleventh Circuit unanimously denied Senator Graham’s emergency motion and upheld the district court’s reasoning. The appellate court also lifted the temporary stay of the district court’s order, so that the special grand jury can once again seek Senator Graham’s testimony. The next day, Senator Graham filed an emergency petition for a stay in the U.S. Supreme Court. 

At the U.S. Supreme Court, the former federal prosecutors, filed another amicus brief opposing the Senator’s petition on October 27, 2022. The Supreme Court denied Senator Graham’s emergency petition, finally ensuring that he would have to testify in front of the special grand jury. 

On December 5, 2022, a bipartisan group of former federal prosecutors filed an amicus brief in the Florida Second District Court of Appeal opposing arguments made by former National Security Advisor Michael Fynn to avoid testifying before the special grand jury. States United and Keker, Van Nest & Peters LLP served as co-counsel on the brief.  

Flynn argued that the special grand jury is not entitled to law-enforcement comity relating to out-of-state witnesses being compelled to testify in criminal proceedings because the special grand jury’s investigation is a civil, not criminal, proceeding and because the special grand jury is not a true grand jury under the law as it does not have the power to indict. However, the former federal prosecutors, who have years of experience with grand jury investigations, refuted Flynn’s incorrect claims and argued that out-of-state witnesses like Flynn can be compelled to testify in front of the special grand jury. 

The appellate court ultimately rejected Flynn’s arguments and ordered that he testify in front of the special grand jury.  

On November 23rd, 2022, a bipartisan group of former and current prosecutors filed an amicus brief in the South Carolina Supreme Court opposing arguments made by former White House Chief of Staff Mark Meadows to avoid testifying before the special grand jury. States United and Keker, Van Nest & Peters LLP served as co-counsel on the brief. 

Meadows, another out-of-state witness, made many of the same arguments as Michael Flynn, which are described above. Meadows also argued that he is not a material witness because his invocation of “executive privilege” and his own state-constitutional privacy rights would “limit, if not outright preclude,” any relevant testimony he could provide. The former federal prosecutors refuted Meadows’s claims regarding testifying as an out-of-state witness and executive privilege.  

They argued that Meadows’s arguments, if accepted, would undermine interstate law-enforcement comity and that Meadows misunderstands the nature and purpose of the special grand jury. Additionally, Meadows’s claims of executive privilege and privacy are legally tenuous and would set a precedent that would frustrate efforts in criminal investigation.

Ultimately, the South Carolina Supreme Court rejected Meadows’s arguments and found them to be “manifestly without merit.” 

• Fulton County Special Grand Jury Backgrounder 
• Graham’s Supreme Court Amicus Brief 
• Graham’s Eleventh Circuit Amicus brief 
• Graham’s Eleventh Circuit Order Denying Stay 
• Flynn’s Florida Second District Court of Appeal Amicus Brief  
• Meadow’s South Carolina Supreme Court Amicus Brief 
• Meadow’s South Carolina Supreme Court decision