Judge denies Kemp's attempt to quash subpoena in Fulton County election probe
Brian Kemp speaks to members of the media after a Back-To-School kick off event at Ola High School in McDonough, Georgia, (Photographer: Dustin Chambers/Bloomberg via Getty Images)
FULTON COUNTY, Ga. - A Fulton County superior court judge has denied Georgia Gov. Brian Kemp's attempt to not testify in the county's special grand jury investigating possible illegal attempts to influence the 2020 election.
In a decision released Monday morning, Superior Court Judge Robert McBurney, who’s overseeing the special grand jury, said that Kemp will need to honor the subpoena, but gave a time frame to try and avoid influencing the upcoming general election.
The governor's lawyers previously argued that he is protected from having to testify by the principle of sovereign immunity, which says the state can’t be sued without its consent. Prosecutors argued that’s not applicable because Kemp is not being sued but instead is being called as a witness to provide facts for an investigation.
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In his decision, McBurney sided with the prosecution, stating "the Governor must honor the subpoena -- as have the Secretary of State and the Aiittorney General and many other agents of the State in these criminal proceedings. Sovereign immunity wards off civil actions, not criminal ones."
Kemp attorney Brian McEvoy argued that, if the governor does have to testify, it shouldn’t happen until after the general election. Kemp faces a rematch with Democrat Stacey Abrams in November in one of the most high-profile and closely watched gubernatorial contests in the country.
"Your Honor is well aware of where we are, what state we’re in, what race we’re facing, and the governor ought not have to suffer political consequences for invoking a legal right," McEvoy said.
In this instance, McBurney agreed with the governor's lawyers, stating that Kemp should testify after the general election.
"The Governor is in the midst of re-election campaign and this criminal grand jury investigation should not be used by the District Attorney, the Governor’s opponent, or the Governor himself to influence the outcome of that election," he wrote.
Willis’ investigation was prompted by a January 2021 phone call between Trump and Georgia Secretary of State Brad Raffensperger during which the then-president suggested the state’s top election official could "find" the votes needed to overturn his loss.
Raffensperger and some other state officials have already appeared before the special grand jury, but Kemp is one of a number of potential witnesses who had been fighting orders to testify.
Kemp’s attorneys have accused Willis of pursuing a "politically motivated" probe, something she has vehemently denied.
Prosecutor Donald Wakeford noted that Willis waited until after contentious primary elections in late May to begin calling witnesses before the special grand jury for that very reason. The governor could have quietly honored a subpoena to appear last week without any media attention, Wakeford argued, but instead, his attorneys filed the motion to quash the day before, thrusting the issue into the public eye.
"To continually insist that this is a situation engineered by the district attorney’s office to the intentional detriment of the governor is just not true," Wakeford said.
You can read the judge's full decision below:
The Associated Press contributed to this report.