“Unfortunately, what began as an investigation into election interference has itself devolved into its own mechanism of election interference,” wrote McEvoy, a former federal prosecutor. “This is particularly egregious when directed toward the State’s highest executive, who is not accused of any wrongdoing and is occupied with the business of governing.”

The motion also cites sovereign immunity, attorney-client and executive privilege as reasons why Judge Robert McBurney should quash the subpoena. Kemp was scheduled to testify before the grand jury on Thursday, less than 90 days before his Nov. 8 rematch against Democrat Stacey Abrams, but his appearance was temporarily excused as the court hears his challenge.

Short of overriding the subpoena, the motion requests that Kemp’s testimony be delayed until late 2022 or early 2023, and that the court establish parameters for questioning.

“For more than a year, the Governor’s team has continually expressed his desire to provide a full accounting of his very limited role in the issues being looked at by the special grand jury,” a spokesperson for the governor’s office said in a written statement. “We are now just weeks away from the 2022 general election making it increasingly difficult to dedicate the time necessary to prepare and then appear.”

The DA’s office had no comment on the filing. But an email from DA Fani Willis that was included in Kemp’s motion could serve as a preview of what to expect in her office’s formal response, expected in the coming days.

“We have been working with you in good faith for months. You have been rude and even disparaging to my staff. You have been less than honest about conversations that have taken place,” Willis told McEvoy. “The email you have sent is offensive and beneath an officer of the court. You are both wrong and confused.”

Long-term discussions

The motion threatens to further politicize an investigation that has become increasingly more combative in recent weeks.

The document details nearly 16 months of back-and-forth between prosecutors and Kemp’s staff beginning in April 2021, as they sought to make arrangements for the governor’s testimony.

Kemp’s counsel was willing to engage and frequently inquired about interview dates, according to McEvoy. But many of their 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 cancelled, McEvoy said, after prosecutors appeared to change their minds about a pre-interview meeting known as an attorney proffer to lay out the scope of the governor’s testimony and address evidentiary and privilege concerns.

Kemp was subpoenaed shortly thereafter, according to McEvoy.

The governor’s office said it voluntarily produced some 137,000 pages of evidence — more than 40 bankers’ boxes worth — for prosecutors this July and August.

That came in response to an initial subpoena for documents, on which the AJC previously reported. 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” about the Nov. 2020 elections and the 60 days following it, the certification of Georgia’s presidential electors on Jan. 6 and the rally 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 sought to reverse Democrat Joe Biden’s narrow win in Georgia, including telephone logs, emails, texts and other correspondence.

In the motion to quash, McEvoy accused Fulton prosecutors of slow-walking Kemp’s testimony, and slammed the subpoena as an effort to politicize the governor’s testimony during the final months of his reelection bid. Willis is a Democrat.

“Here, the timing of the Subpoena in connection with the unjustified investigative delay reveals, at best, disregard of an unnecessary risk to the political process, and at worst, an attempt to influence the November 2022 election cycle,” the motion stated.

Credit: Natrice Miller / Natrice.Miller@ajc.com

Credit: Natrice Miller / Natrice.Miller@ajc.com

Under pressure

Kemp is a key witness in the DA’s sprawling investigation.

In the two months following the 2020 elections, the governor 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 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 Jan. 2021 Senate runoffs would have prompted “endless litigation.”

The details of Kemp’s behind-the-scenes interactions with Trump, however, are largely 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.