Short of quashing the subpoena, the motion asks that Kemp’s testimony be delayed until late 2022 or early 2023 and that the court set parameters for the questioning.
“For more than a year, the governor’s team has continually expressed its desire to provide a full explanation of its very limited role in the issues being examined by the special grand jury,” said a spokesman for the governor’s office in a written statement. “We are now just weeks away from the 2022 general election, making it increasingly difficult to devote the time needed to prepare and run afterwards.”
The DA’s office had no immediate comment on the filing.
The motion threatens to further politicize an investigation that has become increasingly combative in recent weeks.
The document details nearly 16 months of back-and-forth between prosecutors and Kemp’s staff starting in April 2021 as they tried to arrange the governor’s testimony.
According to McEvoy, Kemp’s attorney was willing to participate and often asked about interview dates. But many of his communications were met with silence from the DA’s office, he wrote.
More than a year later, both sides agreed to a July 25 date for Kemp to answer prosecutors’ questions under oath. But that video appearance was abruptly canceled, McEvoy said, after prosecutors appeared to change their minds about a pre-interview meeting known as lawyers’ offer to lay out the scope of the governor’s testimony and address concerns about evidence and privilege.
Kemp was subpoenaed soon after, according to McEvoy.
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The governor’s office said it voluntarily produced about 137,000 pages of evidence, worth more than 40 bankers’ chests, to prosecutors this July and August.
This was in response to an initial document subpoena, which the AJC previously reported on. But the subsequent subpoena for Kemp’s testimony had not been publicly known.
Earlier this summer, the grand jury asked the governor’s office for anything that “represents, explains and provides context” regarding the November 2020 election and the 60 days following, the certification of Georgia’s presidential electors on January 6 and the demonstration held. at the Capitol that day. Jurors also sought any documents that shed light on what then-President Donald Trump and his associates were thinking and doing as they tried to overturn Democrat Joe Biden’s narrow victory in Georgia, including phone records, emails, texts and other correspondence
In the motion to quash, McEvoy accused Fulton prosecutors of slow-walking Kemp’s testimony and criticized the subpoena as an effort to politicize the governor’s testimony during the final months of his re-election bid. Fulton DA Fani Willis is a Democrat.
“Here, the timing of the subpoena in relation to the unwarranted delay of the investigation reveals, at best, disregard for an unnecessary risk to the political process and, at worst, an attempt to influence the electoral cycle of November 2022,” the motion states.
Fulton County District Attorney Fani Willis speaks to the media following a crime and public safety summit at Atlanta Metropolitan College on Wednesday, June 15, 2022. (Natrice Miller / natrice. miller@ajc.com)
Credit: Natrice Miller / Natrice.Miller@ajc.com
Credit: Natrice Miller / Natrice.Miller@ajc.com
Fulton County District Attorney Fani Willis speaks to the media following a crime and public safety summit at Atlanta Metropolitan College on Wednesday, June 15, 2022. (Natrice Miller / natrice. miller@ajc.com)
Credit: Natrice Miller / Natrice.Miller@ajc.com
Credit: Natrice Miller / Natrice.Miller@ajc.com
Kemp is a key witness in the prosecutor’s extensive investigation.
In the two months since the 2020 election, the governor has been on the receiving end of Trump’s relentless public and private pressure.
Kemp rejected repeated requests by the president to illegally call a special session of the state legislature to overturn Biden’s victory.
As a result, Trump criticized 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 mount an unsuccessful primary challenge against the governor and used his PAC to spend millions on attack ads.
Throughout, Kemp said state law prevented him from “interfering” with the election and that changing voting laws before the Georgia Senate runoff in January 2021 would have led to “endless litigation.”
The details of Kemp’s behind-the-scenes interactions with Trump, however, are largely unknown. And unlike the January 2, 2021 phone call between the president and Secretary of State Brad Raffensperger, there are no known recordings of their conversations.
Kemp’s grand jury testimony could shed new light on Trump’s efforts and could prove critical to jurors and prosecutors.
Kemp’s filing argues that because of sovereign immunity, the governor cannot be compelled to testify in court about acts performed as part of his official duties without a waiver.
It is not the only research testimony that cites the doctrine. A similar claim by U.S. Sen. Lindsey Graham, RS.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 “broad swaths of information” that the DA’s office may want to discuss are protected because of executive and attorney-client privilege. This 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 advisers and on the memos and drafts he prepared,” the motion argues . “All of these materials, as well as testimony about them, are protected from disclosure under executive privilege.”
If Kemp’s subpoena is ultimately not overturned, McEvoy is asking McBurney to take a similar approach to what he did with Lt. Gov. Geoff Duncan and state lawmakers who had been subpoenaed by a grand jury earlier this summer. After the group cited legislative immunity, McBurney denied their request to kill their subpoenas, but set guidelines for the types of questions that would be in and out of bounds for prosecutors.
It is rare for a sitting governor to be subpoenaed, especially for a grand jury investigation. Fulton’s investigation, however, has resulted in a subpoena of the state’s top four 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 has heard challenges from Graham and Georgia Congressman Jody Hice, have quashed any subpoenas so far.
McBurney recently rejected an attempt by Trump’s former personal attorney, Rudy Giuliani, to delay his testimony due to recent surgery, saying from the bench that the sequencing of witness testimony is important to the work of the grand jury .
But both he and May have recognized various privileges afforded to witnesses and have repeatedly prescribed that prosecutors draft a framework for questions with lawyers for public officials before their cross-examination.
It is not the first time that Willis has been accused of playing politics.
Lawyers for most of the 16 Georgia Republicans who served as Trump “alternate” voters and were told they are targets of the Fulton investigation have made similar criticisms of the DA. One of those constituents, GOP lieutenant governor candidate Burt Jones, successfully argued to McBurney that Willis had a conflict of interest.
Some Republicans have also begun discussing a recall effort against Willis, though that is considered a long shot given Georgia’s strict rules for such ballot initiatives.
