Kemp files motion to quash subpoena to appear before special grand jury in Trump election probe

ATLANTA - Georgia Gov. Brian Kemp filed a motion Wednesday to kill the subpoena issued to him by the Fulton County special purpose grand jury investigating attempts by former President Donald Trump and others to overturn his 2020 election defeat in the state.

The 121-page motion, which was filed by Georgia Attorney General Chris Carr on behalf of Kemp, outlines three reasons to disallow the subpoena:

1. Sovereign immunity
2. Executive and attorney-client privileges
3. Allegations of "political" motivations.

Kemp was issued the subpoena on Aug. 4 to appear Thursday, Aug. 18. According to the court filing, Kemp was scheduled for an interview with the Fulton County District Attorney's Office on July 25, but when his counsel asked questions about the "scope of that interview," the district attorney canceled and issued a subpoena instead. 

A spokesperson for the governor's office released a statement to FOX 5 saying they are asking the judge to allow Kemp to "come in after the November election."

"For more than a year, the Governor’s team has continually expressed his desire to provide a full accounting of his very limited role in the issues being looked at by the special grand jury. We are now just weeks away from the 2022 general election making it increasingly difficult to dedicate the time necessary to prepare and then appear," the statement reads. "With the special grand jury empaneled until May 2023, we are simply asking the judge to allow the Governor to come in after the November election and direct investigators to work with our legal team to ensure the topics discussed during his appearance remains on his defense of state law and the Constitution in the aftermath of the 2020 election."

Expert weighs in on Kemp's motion to quash special grand jury subpoena

Following Gov. Kemp motion asking Fulton County Superior Court Judge Robert McBurney to prevent him from testifying before the grand jury, a legal expert, who is not associated with the case, gives his thoughts about it.

"McBurney hasn’t quashed a single subpoena in the case yet and based on the filing today, I don’t think the governor is going to be successful," attorney Lynsey Barron said.

Lynsey Barron is a principal at Barron Law and a professor at Emory University.

According to the court filing, Kemp was scheduled for an interview with the Fulton County District Attorney's Office on July 25, but when his counsel asked questions about the "scope of that interview," the district attorney canceled and issued a subpoena instead.

Barron breaks down the major points from the motion, the first being Sovereign Immunity.

"As the Governor, he says he represents the State and the State cannot be forced to come in and do anything," Barron said.

Barron believes this won’t be a compelling argument to the court.

"It typically has not extended to preventing sovereign entities from having to participate in litigation or turn over documents," Barron said.

Another point the Kemp Legal team laid out was executive privilege.

"When a really important interest can be articulated by a prosecutor in an investigation, executive privilege takes a backseat. So if DA Fanni Willis can articulate that this testimony is critical to her investigation, I think Judge McBurney will force the governor to testify," Barron said.

According to the motion, Kemp’s lawyers believe the timing of this testimony will interfere with the November election.

"Brian Kemp is not a target in this investigation. He’s just a witness and so I think he’s going to have a hard time articulating why he can’t testify in front of the grand jury. It’s going to be secret as long as he wants it to be," Barron said.

Experts believe Judge McBurney will have a decision sooner rather than later.

A spokesperson for the governor's office released a statement to FOX 5 saying they are asking the judge to allow Kemp to "come in after the November election."

"For more than a year, the Governor’s team has continually expressed his desire to provide a full accounting of his very limited role in the issues being looked at by the special grand jury. We are now just weeks away from the 2022 general election making it increasingly difficult to dedicate the time necessary to prepare and then appear," the statement reads. "With the special grand jury empaneled until May 2023, we are simply asking the judge to allow the Governor to come in after the November election and direct investigators to work with our legal team to ensure the topics discussed during his appearance remains on his defense of state law and the Constitution in the aftermath of the 2020 election."