Judge denies Kemp’s motion to quash grand jury testimony

But Judge McBurney delayed questioning until after the November election.
081022 Atlanta: Governor Brian P. Kemp, with First Lady Marty Kemp, takes questions from the media following a special economic development announcement on Wednesday, August 10, 2022, in Atlanta.   “Curtis Compton / Curtis Compton@ajc.com

Credit: Curtis Compton

Credit: Curtis Compton

081022 Atlanta: Governor Brian P. Kemp, with First Lady Marty Kemp, takes questions from the media following a special economic development announcement on Wednesday, August 10, 2022, in Atlanta. “Curtis Compton / Curtis Compton@ajc.com

A judge has denied Gov. Brian Kemp’s request to avoid testifying before the special purpose grand jury investigating Donald Trump and his allies’ attempts to overturn Georgia’s 2020 election results.

But the Monday morning ruling from Fulton County Superior Court Judge Robert McBurney did say Kemp could appear before the grand jury at “some date soon after” his contentious quest for reelection is concluded.

Election Day is Nov. 8.

“Judge McBurney acknowledged the potential political impact of the timing of these proceedings and correctly paused the Governor’s involvement until after the November election,” Kemp spokesman Andrew Isenhour said in a statement provided to The Atlanta Journal-Constitution.

“Just as we have since April 2021, we will work with the DA’s office and the judge to ensure a full accounting of the Governor’s limited role in the issues being investigated is available to the special grand jury.”

Asked about the ruling during an unrelated press conference Monday afternoon, Fulton District Attorney Fani Willis said only this: “I think that it’s appropriate for witnesses that have information in that investigation to testify.”

McBurney’s decision comes after weeks of heated discussions, legal wrangling and a tense two-hour court hearing in which Kemp’s attorneys argued in favor of quashing his subpoena.

In addition to suggesting the summons was a political move in the middle of a heated election season, the governor’s legal team argued last week that sovereign immunity, a legal doctrine that in many cases prevents government entities from being sued, should protect him from being forced to testify.

Prosecutors from Willis’ office, meanwhile, said during Thursday’s hearing that they’ve gone out of their way to avoid politics and that sovereign immunity doesn’t apply because the grand jury, while civil in nature, is probing potential criminal violations of state law.

Among the issues prosecutors are interested in discussing with Kemp is the pressure then-President Trump and others placed on him to call for a special session of the Georgia Legislature to undo Joe Biden’s narrow win in Georgia.

McBurney — who reiterated in court last week that Kemp is facing no accusations of criminal activity and is effectively a “victim” of any improper actions undertaken by Trump or his allies — largely sided with Willis’ office in Monday’s ruling. He found that sovereign immunity did not apply. The judge also called out the governor’s legal team for erroneously suggesting that a piece of case law found that “special grand juries conduct only civil investigations.”

“Indeed, hopefully due only to inadvertence, the Governor’s legal team, in its visual presentation making this unfounded claim about the holding of Bartel, directed the Court via citation to a page of the opinion (699) that does not exist,” McBurney wrote in a footnote.

The judge did grant the governor’s request for delayed testimony, should he be forced to appear — and his six-page opinion spread the criticism around.

Judge Robert McBurney addresses counsel for Gov. Kemp during a hearing on Georgia Governor Brian Kemp's motion to quash his subpoena from the special purpose grand jury in Atlanta, GA, on Thursday, August 25, 2022.  on Thursday, August 25, 2022.   (Bob Andres for the Atlanta Journal Constitution)

Credit: Bob Andres for the AJC

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Credit: Bob Andres for the AJC

McBurney wrote that Kemp’s 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.”

According to testimony in court, Kemp initially agreed to be interviewed by prosecutors on July 25. But a few days ahead of that date, one of Kemp’s lawyers reportedly told the district attorney’s office that the governor would only appear under certain conditions, including that neither side make a video or audio recording of the interview.

That demand was rebuffed and Kemp was issued a subpoena on Aug. 4.

Kemp attorney Brian F. McEvoy filed his motion to quash the subpoena Aug. 17, the day before the governor was scheduled to appear before the special grand jury.

Kemp lawyers suggested in court last week that, if McBurney ruled against the governor on the matter of sovereign immunity, they could appeal the decision to the Georgia Supreme Court. The judge, though, would have to grant them special permission to do so — something he declined to do in the very last footnote of Monday’s ruling.

Another motion denied

In a separate Monday morning filing, McBurney denied a motion to quash filed by Kenneth Chesebro, a Trump campaign attorney. In court filings, prosecutors have said that Chesebro helped coordinate a plan for 16 Republicans to cast fake electoral college votes for Trump on Dec. 14, 2020.

An attorney for Chesebro asked the judge to dismiss the subpoena requiring him to testify in front of the special grand jury, citing attorney-client privilege. McBurney wrote that, while some potential lines of inquiry would fall under those protections, many others would not.

Those lines of inquiry, McBurney wrote, would include Chesebro’s “communications with Republican party officials in Georgia following the 2020 general election (and) his interactions with the individuals in Georgia seeking to prepare a slate of ‘alternate’ electors weeks after the final vote count showed former President Trump losing by over 10,000 votes in Georgia, etc.”

During her unrelated press conference on Monday, Willis told reporters that the special grand jury was “about 60% through” its list of witnesses. She said she was pleased with the pace.

“Many people are unsuccessfully fighting our subpoenas,” Willis said. “We will continue to fight that, to make sure that the grand jury and the public gets the truth. And I am very hopeful by the end of the year that I’ll be able to send this grand jury on their way.”

Staff writers Greg Bluestein and Tamar Hallerman contributed to this article.


Multiple lawyers who worked for the Trump campaign, including Jenna Ellis and John Eastman, are slated to testify before the special grand jury this week. They are expected to cite attorney-client privilege for many of the questions. A federal judge is also expected to rule in the next week or so on whether U.S. Sen. Lindsey Graham (R-S.C.) should be exempt from answering certain questions in front of the grand jury due to legislative immunity.