CONTINUING COVERAGE: TRUMP INVESTIGATION
BRIAN KEMP TESTIMONY
A long-simmering clash between two branches of Georgia government exploded into public view on Wednesday, when an attorney for Gov. Brian Kemp moved to kill a subpoena seeking the Republican’s testimony before the Fulton County special grand jury studying potential criminal interference in Georgia’s 2020 elections.
Kemp is a key witness in the DA’s sprawling investigation.
In the two months following the 2020 elections, Kemp was on the receiving end of relentless public and private pressure from Trump.
Kemp rejected the president’s repeated requests to illegally call for a special session of the state legislature to undo Biden’s win.
As a result, Trump repeatedly lambasted Kemp at rallies and other public events, saying he was “ashamed” to have endorsed him in 2018. Trump recruited former U.S. Sen. David Perdue to wage an ultimately unsuccessful primary challenge against the governor and used his PAC to spend millions on attack ads.
Throughout, Kemp said that state law blocked him from “interfering” with the election and that changing voting laws before Georgia’s January 2021 Senate runoffs would have prompted “endless litigation.”
The details of Kemp’s behind-thescenes interactions with Trump, however, largely are unknown. And unlike the Jan. 2, 2021, phone call between the president and Secretary of State Brad Raffensperger, there are no known recordings of their conversations.
Kemp’s testimony before the grand jury could shed new light Trump’s efforts — and could prove pivotal for jurors and prosecutors.
Citing privileges
Kemp’s filing argues that due to sovereign immunity, the governor cannot be forced to testify in court about acts undertaken as part of his official duties without a waiver.
He’s not the only investigation witness to cite the doctrine.
A similar claim from U.S. Sen. Lindsey Graham, R-S.C., was rejected by a federal judge earlier this week. But Kemp’s aides believe sovereign immunity has stronger legal protections at the state level.
The governor’s motion also argues that “large swaths of information” that the DA’s office may want to discuss are protected due to executive and attorney-client privilege. That includes documents related to Kemp’s deliberative process and internal communications with his advisers.
“Unsurprisingly, the Governor’s decision-making before, during, and after the November 2020 election relied heavily on communications with his advisors and on notes and drafts that he prepared,” the motion argues.
“All of those materials, as well as testimony about them, are protected from disclosure under the executive privilege.”
If Kemp’s subpoena ultimately isn’t quashed, McEvoy is asking McBurney to take a similar approach to what he did with Lt. Gov. Geoff Duncan and state legislators who had been subpoenaed by the grand jury earlier this summer. After the group cited legislative immunity, McBurney denied their request to kill their subpoenas but laid out guidelines for the types of questions that would be on and off-limits to prosecutors.
It’s rare for a sitting governor to be subpoenaed, particularly for a grand jury investigation.
The Fulton investigation, however, has resulted in summons for the state’s top four statewide elected officials, including Duncan, Raffensperger and Attorney General Chris Carr. The latter two did not publicly fight their subpoenas.
Neither McBurney nor U.S. District Court Judge Leigh Martin May, who’s heard challenges from Graham and Georgia Congressman Jody Hice, have quashed any subpoenas to date.
McBurney recently rebuffed an attempt from Trump’s former personal attorney, Rudy Giuliani, to delay his testimony due to a recent surgery, stating from the bench that the sequencing of witness testimony is important to the grand jury’s work.
But both he and May have acknowledged various privileges afforded to witnesses and have prescribed on multiple occasions that prosecutors work out a framework for questions with lawyers for public officials in advance of their questioning.
This isn’t the first time that Willis has been accused of playing politics.
Attorneys for a majority of the 16 Georgia Republicans who served as “alternate” electors for Trump and were informed that they’re targets of the Fulton investigation, have leveled similar criticism at the DA. One of those electors, GOP lieutenant governor nominee Burt Jones, successfully argued before McBurney that Willis had a conflict of interest.
Some Republicans have also begun to discuss a recall effort against Willis, though that’s considered a long shot given Georgia’s strict rules for such ballot initiatives.