Fulton judge weighs whether to quash Kemp's grand jury subpoena

ATLANTA - A Fulton County Superior Court judge must now decide whether to quash a subpoena for Gov. Brian Kemp to appear before the special purpose grand jury investigating potential criminal interference in Georgia's 2020 presidential election.

For more than two hours Thursday, attorneys representing Kemp defended their motion that claims the panel cannot compel a sitting governor to testify, while lawyers from the Fulton County District Attorney's Office refuted their claims.

Kemp's attorneys centered their arguments on the issue of sovereign immunity, which means the government cannot be sued without its consent.  

"You can't bring me into court for any reason.  It is a jurisdictional bar," said Derek Bauer, one of the attorneys representing Gov. Kemp.  "The state is above the reach."

Judge Robert McBurney, however, questioned that assertion.  He said sovereign immunity applies in civil matters and not necessarily criminal ones.

"It's a criminal investigation.  The only discussion is criminal statutes," said Judge McBurney.  "The only concern is, was there criminal interference with the 2020 general election in Georgia.  So, it's a criminal investigation--no jurisdiction?"

Both sides also argued about the political implications of Gov. Kemp appearing before the grand jury.  

His attorneys claimed the district attorney's office timed his testimony to fall during his re-election bid, but they countered that they instead made sure it fell after Kemp's contentious May primary.  They also argued he and his attorneys are the ones who have drawn attention to his potential testimony.  

"If the governor had appeared on August 18th, driven into a secure location, been brought into the building, appeared, provided testimony, left, there would have been no story," said Donald Wakeford, chief senior district attorney.  "There would be no controversy.  There would be no political implications.  There would be nothing to talk about."  

Judge McBurney said he will rule on the sovereign immunity issue and if he sides with the district attorney's office, will look into what considerations need to be made to avoid any political implications.

Gov. Kemp's attorneys notified the judge that they do plan to appeal to the Georgia Supreme Court if he does not rule in their favor.