Graham backtracks on earlier Jan. 6 criticism of Trump: ‘It depends on what the conduct is’

Sen. Lindsey Graham (R-S.C.) on Sunday appeared to backtrack on earlier criticism of former President Trump’s actions on Jan. 6 and suggested instead that his presidential immunity defense was “a legitimate claim” as he moves forward with various court battles.

In an interview on CBS News’s “Face the Nation,” Graham was pressed on whether he stands by his 2021 statement that Trump could still be prosecuted for wrongdoing and that “the president’s conduct is subject to the law of the land.”

“Yeah, it depends on what the conduct is,” Graham said, when asked whether he stands by his earlier statement, which he made after he voted to acquit Trump in the second impeachment trial, following the Jan. 6, 2021, attack on the Capitol.

“Now, if you’re doing your job as president — and January the sixth, he was still president trying to find out if the election, you know, was on the up and up — I think his immunity claim, I don’t know how it will bear out, but I think it’s a legitimate claim,” Graham continued.

Sen. Lindsey Graham (R-S.C.) addresses reporters during a press conference on Thursday, December 7, 2023 to discuss security of the US-Mexico border. (Mattie Neretin)

Trump faces four criminal indictments — two federal and one each in New York and Georgia — and two relate to his efforts to remain in power after losing the 2020 presidential election.

The former president’s legal team has argued that, since Trump was president at the time and claimed to be acting in his capacity as president, he would be immune from prosecution. Others have fought back against that argument, pointing out that, before the attack on the Capitol, he was speaking at a rally, in his capacity as a political candidate for office, not as president.

Some also point to extensive evidence that he was told repeatedly that the election was not stolen and that he was not acting in the interests of the country.  

Graham, in defending Trump, claimed the former president “gave a fiery speech” and suggested Trump played a minimal role in the actual attack.

“They’re prosecuting him for activity around January the sixth. He didn’t break into the Capitol. He gave a fiery speech, but he’s not the first guy to ever do that,” Graham said. “So at the end of the day, I think this case will not go to trial before the election. I think there are more legal issues around this than you can even imagine about — what can a president do as president? What are the limitations of being president?”

When pressed again on whether he thinks a president should be immune from prosecution, Graham said no one is immune from the law but defended Trump’s immunity case.

“Well, it depends on — right, I mean, nobody is immune from the law, but you do have presidential immunity to do your job. I mean, I have immunity to do my job under the Speech and Debate Clause. That’s what the legal issue is.”

“This went before the nation through impeachment, and he got acquitted. I think January 6 is baked into the cake. I think the [special counsel] Jack Smith cases are not changing the political outcome in polling. We’ll see what the court does. At the end of the day, Donald Trump is in a good position to win the Republican primary because Republicans believe he had a good presidency, and I think he can win the general election.”