Lindsey Graham “dodged bullets” in Fulton County case; legal experts say he’s “no less culpable”

The special grand jury in Fulton County, Ga. that investigated the state’s 2020 presidential election recommended charges against Sen. Lindsey Graham, R-S.C. and former Republican Sens. David Perdue and Kelly Loeffler of Georgia, the special counsel grand jury report unsealed Friday reveals per CNN. 

Fulton County District Attorney Fani Willis did not charge the legislators in the sprawling racketeering indictment against former President Donald Trump and 18 co-defendants she returned last month. Special grand juries in Georgia are not permitted to bring down indictments, so the decision for how closely to follow its recommendations rested with the district attorney.

The grand jurors largely agreed that Graham, Perdue and Loeffler had engaged in unlawful conduct with 13 of the 21 voting in the affirmative for Graham, 17 for Perdue and 13 for Loeffler. One of the dissenting jurors, however, believed that the former Georgia senators’ statements following the 2020 election, though pandering to their political base, did not indicate that they were guilty of criminal conspiracy, the report noted.

The lawmakers have denied committing any wrong doing in relation to the 2020 election. They are among a larger group recommended for charging by the special grand jury that Willis decided against indicting, which included Trump adviser Boris Epshteyn, former national security adviser Michael Flynn and attorneys Cleta Mitchell and Lin Wood.

The special grand jury had also suggested charging 13 of the 16 members of the false Georgia elector slate. Willis only brought charges against three — Cathy Latham, a former Coffee County GOP chair, David Shafer, the former chairman for the Georgia Republican party, and Shawn Still, a current freshman Republican state representative — and it is unclear why the three excluded electors were not recommended. 

Despite the overwhelming votes to indict the electors, two dissenting jurors believed “the electors should not be indicted for doing what they were misled to understand as their civic duty.”

Legal experts reacted to those excluded from the indictment online Friday following the report’s complete release. Former Assistant U.S. Attorney Andrew Weissmann noted it is “So interesting who was NOT then charged” based on the juries recommendations.

“We now understand much better what probably was happening as we all waited for the indictment to drop ‘imminently,'” former U.S. Attorney Harry Litman wrote on X, the platform formerly known as Twitter. “Willis had a bevy of decisions she was making & ultimately decided not to charge more people than she decided to charge (20-19). That’s a lot of deliberation.”

“Does the forbearance play as a a virtue for Willis, or does the narrow scrape of prominent current officeholders fuel critics of prosecutions of national figures by a local DA? Probably both,” he added.

Other experts offered explanations for why Perdue, Loeffler and Graham were left unscathed in Willis’ final charging decision and pondered whether others like Flynn had decided to cooperate with authorities.

“For those asking why certain individuals listed by the special grand jury were not indicted by Willis, bear in mind the following: 1) murky constitutional issues tied to Members of Congress due to their role under the Electoral Count Act; 2) some people, particularly fake electors, might have made cooperation deals with Willis; 3) some people might have been viewed as more helpful simply as material fact witnesses than as criminal co-defendants,” national security attorney Bradley Moss wrote in two posts to X. 

Asha Rangappa, a lawyer and former FBI special agent, echoed those sentiments, acknowledging that Willis bringing charges against the senators would have given “folks like Jim Jordan a clear ‘hook’ to do what he’s doing now,” referring to the investigation the House Judiciary Committee chairman and Ohio Republican launched into Willis’ handling of the indictment last month.

“Can attribute some of the non-charging decisions to calls about guilt and innocence and what they could prove, eg Graham. But others who dodged bullets — thinking here of Flynn & Mitchell for starters—seem no less culpable,” Litman tweeted. “Does that perhaps suggest that they are cooperating??”

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Graham appeared before the special grand jury last year following a court battle regarding his testimony. After the 2020 election, Graham corresponded with Georgia election officials, including phone calls with Georgia Secretary of State Brad Raffensperger and his staff connected to the potential of finding enough fraud in the state that it could reverse Trump’s loss.

The South Carolina Republican repeatedly pressed Raffensperger and his colleagues over the phone about the signature-matching of ballots in the Atlanta-area. Raffensperger told CNN in November 2020 that he believed Graham “implied” that he should attempt to “throw out” ballots in the overwhelmingly Democratic county.

Raffensperger testified to the House Select Committee investigating Jan. 6 that his phone call with the senator made him “uncomfortable” because some of Graham’s suggestions could have precipitated “disenfranchising voters.”

The senator denies wrongdoing and challenged Raffensperger’s description of the call. He argued in his battle against the Fulton County subpoena that his calls to Georgia officials were legislative activity directly connected to his duties as the then-chair of the Senate Judiciary Committee. He also asserted that his actions should be protected by the Constitution’s Speech or Debate Clause. 

Perdue, who lost his Senate run-off election in January 2021, personally encouraged Georgia Gov. Brian Kemp to bring a special session of the legislature to aid in Trump’s efforts to overturn the election. Loeffler, who lost her run-off election that January as well, was also present at the meeting.

Perdue last year carried out an unsuccessful Trump-supported primary challenge to unseat Kemp, relying heavily on peddling false claims of election fraud touted during the 2020 election. 

The Fulton County special grand jury began hearing evidence in June 2022 and Willis used the group to probe efforts to reverse Joe Biden’s victory, an inquiry prompted by Trump’s infamous January 2021 phone call with Raffensperger where the former President asked him to “find” the thousands of votes he needed to win the state.