ATLANTA — A Fulton County judge on Thursday did not indicate how he would rule on a request from Republican Gov. Brian Kemp to block a subpoena for his testimony before the special purpose grand jury studying whether President Donald Trump and his allies violated state law when they sought to overturn Georgia’s 2020 election results.
During a two-hour hearing, Superior Court Judge Robert McBurney heard dense legal arguments from attorneys for Kemp and the Fulton County district attorney’s office about whether the governor is shielded from testifying due to a centuries-old concept known as sovereign immunity.
He was also briefed on a communication breakdown between the two camps that led to the cancellation of Kemp’s voluntary testimony, the governor’s subsequent subpoena and an eleventh-hour motion from the governor’s attorney to quash the summons.
Prosecutors Nathan Wade and Donald Wakeford told McBurney that Kemp had voluntarily agreed to be interviewed by prosecutors on July 25. But prosecutors said a turning point occurred on July 20 when Brian F. McEvoy, one of Kemp’s lawyers, told the DA’s office that the governor would only appear if certain requirements were met because the investigation was “politically motivated.” One condition was that neither side could make a video or audio recording of the interview, they said.
“That is not Mr. McEvoy’s call,” Wade said. “That rests solely with the district attorney, and the district attorney has made that decision through the power of the special grand jury.”
Kemp was then issued a subpoena to appear in person before the special grand jury on Aug. 18, a date requested by the governor’s own attorneys. But that was set aside on Aug. 17 when McEvoy filed a motion to quash the subpoena.
McEvoy said tensions had escalated after prosecutors abruptly canceled a planning meeting with attorneys to discuss areas of inquiry and potential privileges.
Among the issues prosecutors are interested in discussing with Kemp is the pressure then-President Trump and others placed on him to call for a special session of the Georgia Legislature to undo Joe Biden’s narrow win in Georgia.
McBurney has several decisions to make in the days ahead.
The first is whether sovereign immunity bars a special grand jury from forcing a sitting governor to testify without his consent.
Kemp’s lawyers argued the grand jury was civil, not criminal, because it can’t issue indictments and that it didn’t have the authority to direct a governor to testify. The DA’s office said sovereign immunity does not apply because the grand jury is probing potential criminal violations in the law.
If McBurney agrees with Kemp, the governor would be exempt from being questioned, and any agreement to testify would be strictly voluntary.
If McBurney determines that sovereign immunity does not apply, he must then decide whether executive or attorney-client privilege limits the types of questions that jurors or prosecutors could ask the governor. He is also being asked by Kemp’s team to take into consideration the upcoming November elections and to delay any testimony date until after the governor faces off against rival Stacey Abrams.
McEvoy shared screenshots of a tweet by Abrams and a recent appearance the Democrat made on CNN, in which she slammed the governor for seeking to avoid testifying. McEvoy said Kemp was “damned if we do” testify, facing political risks based on his answers or any privilege he may claim, and “damned if we don’t,” being criticized for trying to dodge a subpoena.
“The intersection of law and politics in this way, we believe, shouldn’t be happening on the eve of an election, and despite our willingness to engage, we’re just asking that the rule of law be closely followed in this matter,” McEvoy said.
Wakeford said prosecutors have gone out of their way to avoid politics, including delaying grand jury testimony until after the May primaries concluded. He blamed Kemp for choosing to politicize the subpoena and said it would have been possible for Kemp to avoid a media circus by going in to testify on Aug. 18, as his subpoena required, since the media had been under the impression that Kemp had already testified on July 25.
“There would have been no story. There would have been no controversy ... because the story, for the media’s purposes, was over,” he said. “Instead, they waited until the day before the governor was supposed to appear, a date that they agreed to, to file this motion and make public statements.”
McBurney appeared skeptical of Kemp’s legal team on the concept of sovereign immunity.
“I want to be very clear: there’s no suggestion that the governor or his office is connected to criminal activity,” McBurney said. “I think if one were to summarize the theory of the investigation, the governor was almost the target of the targets and so would be victim of pressure to do things that were … improper post-election.”
Kemp’s attorneys indicated that if McBurney rules against the governor on the matter of sovereign immunity, they would like to appeal the decision to the Georgia Supreme Court.
McBurney, however, would have to give them special permission to do so, issuing what’s known as a certificate of immediate review.
The judge denied a similar request from 11 of the 16 “alternate” Republican electors who were named targets of the investigation and unsuccessfully sought to have their subpoenas nullified.
On Thursday, McBurney again denied a request by lawyers representing those 11 GOP electors to disqualify Fulton DA Fani Willis from investigating them. They contend that Willis, a Democrat, is targeting only Republicans.
Last month, McBurney disqualified the DA’s office from investigating fellow GOP elector Burt Jones, the Republican nominee for lieutenant governor, because Willis held a fundraiser for his Democratic opponent.
In his order, McBurney said the 11 fake electors are not similarly situated with Jones. And the judge said he failed to grasp “how an investigation into allegations of Republican interference in the 2020 general election would have any other list of targets than Republicans.”
Also Thursday, a motion was filed to quash a subpoena served on New York attorney Kenneth Chesebro, who is scheduled to testify before the grand jury on Aug. 30.
In court filings, prosecutors say Chesebro helped coordinate a plan for 16 Republicans to cast fake electoral college votes for Trump on Dec. 14, 2020.
The motion to quash said that because Chesebro is bound by the attorney-client privilege and his duty of confidentiality, it is unlikely he can answer any questions posed to him by the grand jury.
“In filing this motion to quash, Mr. Chesebro is living up to the spirit and letter of the law as set forth in the rules of professional responsibility governing all attorneys,” Chesebro’s lawyer, Scott Grubman, said Thursday.
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