ATLANTA (CN) — A judge ruled Monday that Republican Governor Brian Kemp must honor his subpoena and appear before the special grand jury investigating potential criminal interference in the state's 2020 elections, but not until after the election on November 8.
During a hearing last week, Kemp's attorneys fought to quash his subpoena entirely, but pleaded that the judge at least delay his testimony to avoid any political interference with his current race for reelection.
Fulton County District Attorney Fani Willis, who launched the investigation last year, was accused by Kemp's attorneys of "gamesmanship" for sending the governor a subpoena in the midst of an election cycle after he had agreed to provide her with a private video statement last month.
"This subpoena came only after weeks of tortured and tortuous negotiations over obtaining an interview with the Governor — the details of which do not bear repeating here, other than to note that both sides share responsibility for the torture and the tortuousness," wrote Fulton County Superior Court Judge Robert McBurney, who is overseeing the grand jury.
Despite arguments from Kemp's attorney Brian McEvoy that the subpoena sparked mass media attention and speculation, prosecutors and the judge agreed that was self inflicted from filing their motion on the eve of the governor's scheduled appearance.
The public perception was that the governor had already given his testimony, so according to the District Attorney's office "no one would have even noticed" if Kemp had just complied to his agreed-upon appearance instead of challenging it last minute.
Also during Thursday's hearing, Kemp's attorney Derek Bauer referred to Kemp as "the king" in regards to a centuries old constitutional doctrine known as sovereign immunity, to which Bauer argued completely shields all state officials from jurisdiction without their consent.
Judge McBurney ruled that sovereign immunity does not extend to criminal proceedings and only protects the state from civil suits, which is not the purpose of the 23-person special grand jury's investigation.
"As described at the outset of this order, its purpose is unquestionably and exclusively to conduct a criminal investigation: its convening was sought by the elected official who investigates, lodges, and prosecutes criminal charges in this Circuit; its convening order specifies its purpose as the investigation of possible criminal activities; and its final output is a report recommending whether criminal charges should be brought," wrote Judge McBurney in his order.
As with other's who have been ordered to testify, such as Rudy Giuliani and Senator Lindsey Graham, prosecutors will be limited in what they are allowed to question the governor about.
"As with several other witnesses who, in response to their lawful subpoenas, raised concerns about various privileges, the Governor’s questioning will have limits. Neither the District Attorney nor the grand jurors may ask the Governor about the contents of any attorney-client privileged communications," the judge wrote.
"The court is aware of several conversations of interest to the investigation in which the Governor participated and to which the attorney-client privilege applies."
Kemp's testimony is sought by prosecutors primarily due to statements made by Donald Trump at a rally he held in Perry, Georgia, in September 2021. The former president told attendees that he “called his people” and told them to “find out what happened” in the state because there was “something wrong with this election," and specifically called out Kemp for not doing something about it.
While Trump has hinted at running again in 2024, the delay in testimony from Kemp and possibly from other crucial witnesses challenging their subpoenas, could further raise the probe's political implications.
Some have already testified including Georgia Secretary of State Brad Raffensperger about his phone call from Trump suggesting he “find” the votes needed to overturn his loss, as well as Giuliani, Trump's personal attorney who is a target of the investigation for promoting false claims of a rigged election.
The District Attorney's office filed petitions for more subpoenas last week, seeking testimony from former White House Chief of Staff Mark Meadows, Trump campaign attorney Sidney Powell and others next month.
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