Lindsey Graham just lost big time
When Senator Lindsey Graham asked the Supreme Court last week to shield him from having to testify in the Fulton County District Attorney’s grand jury probe, major media outlets widely and falsely reported that Clarence Thomas had “blocked” that testimony on Graham’s behalf. But this was not at all what happened – and predictably, the Supreme Court has unanimously announced today that it’s refusing to take up Graham’s case.
The way things actually work is that when appeals are made to the Supreme Court, the nine Justices and their offices handle those appeals based on region. For instance, Elena Kagan handles appeals from the southwest, while Clarence Thomas handles appeals from the southeast. Georgia is in the southeast, so Graham’s appeal was processed by Thomas – which essentially means nothing.
Regardless of which Justice’s office handles an appeal, the procedure is the same. The incoherent gibberish appeals (“I demand that iced tea be purple seven”) get discarded. The legally plausible appeals get presented by that Justice to the rest of the Supreme Court, to see if there are the required four votes to take up the case. If there aren’t four votes, the appeal is quickly discarded.
Accordingly, that’s what we saw happen over the past week. Graham filed a Supreme Court appeal out of desperation, it was filed with Thomas because Georgia is in the southeast, Thomas carried out his essentially custodial role by presenting the case to the Supreme Court, there were zero takers, Graham’s appeal was discarded, and the whole process took roughly six days.
Even as this boring process was swiftly playing out as expected, we were subjected to numerous headlines which falsely implied that Clarence Thomas had somehow unilaterally ruled on Graham’s behalf, that Graham no longer had to testify, and that Thomas somehow had the power to magically do anything he wanted. Now that the Supreme Court has immediately chucked the case as expected, we’re seeing even weirder media takes about Thomas somehow having declined to wave the magic wand that he could have used to save Graham. These headlines are, in a word, fiction.
Meanwhile back in the real world, Lindsey Graham is out of appeals and will now have to immediately testify. If he refuses to show up, the Fulton County DA can have the Georgia judge overseeing the case hold Graham in contempt of court, which could result in Graham being dragged in to testify or even jailed. Graham knows this, so he’ll likely show up to testify, because at this point it’s the least bad of his options.
Graham can plead the fifth during his testimony. But for all the pundit takes that have falsely portrayed the Fifth Amendment as some magic wand that can get someone off the hook, in reality pleading the fifth is really just a desperation move. It means you expect to be criminally indicted, and you’re trying to avoid making it easier for prosecutors to get a conviction against you. If Graham pleads the fifth in the Fulton County case, you can pretty much assume he’ll end up being indicted.
Lindsey Graham’s only remaining move would be to cut a cooperation deal with prosecutors against Donald Trump. It’s not clear if Graham is psychologically stable enough to go ahead and cut such a deal, or if Graham will delusionally convince himself that he can somehow magically convince a jury that he’s some hero. Graham has lost this battle. The only question is how he decides to take the loss.
