Georgia Gov. Kemp Must Testify In Fulton County DA’s Trump Election Probe, Judge Rules

Topline

Georgia Gov. Brian Kemp (R) must testify before a grand jury in an investigation into former President Donald Trump’s effort to overturn the state’s election results, a state judge ruled Monday, denying the governor’s effort to get out of testifying in Fulton County District Attorney Fani Willis’ probe—but delaying his testimony until after the midterm elections.

Georgia Gov. Brian Kemp walks onstage for a campaign event on May 23 in Kennesaw, Georgia.

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Key Facts

Georgia Superior Court Judge Robert C.I. McBurney denied Kemp’s motion to quash the subpoena for his testimony, after Willis’ office ordered the governor in August to testify before a grand jury.

Kemp argued he didn’t have to testify because he has “sovereign immunity” from litigation as the governor, but McBurney struck that argument down, ruling the case law that Kemp used to justify his argument “does not say what he says it does.”

While Kemp will have to testify, the judge noted he does not have to give any information to the court that is shielded by attorney-client privilege.

The governor will also only have to testify after the general election on November 8, McBurney ruled, when Kemp will run for reelection and face off against Stacey Abrams.

Delaying Kemp’s testimony is the “sound and prudent course,” McBurney ruled, noting the investigation “should not be used by the District Attorney, the Governor’s opponent, or the Governor himself to influence the outcome of [the gubernatorial] election.”

Kemp and Willis’ offices have not yet responded to requests for comment.

Chief Critic

Kemp’s attorneys have argued Willis is seeking the governor’s testimony for “improper political purposes,” the Associated Press reports, and the governor asked to delay the testimony until after the general election so he wouldn’t “suffer consequences” in his campaign.

What To Watch For

Willis’ office said in a previous court filing that it’s seeking Kemp’s testimony to ask about the pressure the governor faced after the 2020 election, when he denied Trump’s claims of election fraud and did not go along with his efforts to overturn President Joe Biden’s win, including conversations he had with Trump himself. “Depending on what [Kemp’s] testimony reveals, many more evidentiary avenues may be opened,” the DA’s office wrote, noting the governor “is uniquely knowledgeable about the election interference matters being investigated by the grand jury since he was personally involved in the conversations at issue.”

What We Don’t Know

What the outcome of Willis’ investigation will be. The grand jury that Kemp will testify before is a special grand jury that cannot actually charge anyone directly, but will rather issue a report detailing whether it believes any criminal charges should be brought. Willis will then consider that report and the grand jury’s recommendations, and a second regular grand jury could then consider whether to bring any charges. Trump is facing several potential criminal charges in the probe, including violating Georgia laws barring the solicitation of election fraud. Several of his allies, including attorney Rudy Giuliani and Republicans who submitted a false slate of electors to Congress, have also been identified as targets in the investigation.

Key Background

Willis convened a special grand jury in May as part of her investigation into Trump’s post-election activities, which is examining Trump’s efforts to overturn the results including his phone call with Secretary of State Brad Raffensperger telling him to “find” enough votes to flip the results. Kemp is one of a slew of Republicans who have since been called to testify before the grand jury, along with such people as Raffensperger, Giuliani, Georgia Attorney General Chris Carr and Trump attorneys John Eastman and Jenna Ellis. Kemp is not the only one who’s pushed back in court against his subpoena, with Trump allies including Giuliani, Ellis and Sen. Lindsey Graham (R-S.C.) also asking judges to get them out of testifying. Giuliani and Ellis have been ordered to testify, but Graham’s case remains pending, as an appeals court ruled last week to block his subpoena for now and send the case back to a lower court who can consider the scope of his testimony as a sitting senator.