Georgia judge skeptical of Brian Kemp's argument to quash election probe subpoena

Georgia Judge Robert McBurney expressed skepticism of Gov. Brian Kemp's claims that he is immune from testifying in a probe of efforts to overturn the 2020 presidential and that the investigation is politically biased. File Photo by Chris Kleponis/UPI | <a href="/News_Photos/lp/75692dbddd382208c378d69b0e5a06c3/" target="_blank">License Photo</a>
Georgia Judge Robert McBurney expressed skepticism of Gov. Brian Kemp's claims that he is immune from testifying in a probe of efforts to overturn the 2020 presidential and that the investigation is politically biased. File Photo by Chris Kleponis/UPI | License Photo

Aug. 25 (UPI) -- The judge presiding over a grand jury investigating potential efforts to overturn Georgia's 2020 presidential election results did not immediately rule on a request by Gov. Brian Kemp to quash a subpoena directing him to testify in the case following a hearing Thursday.

Judge Robert McBurney said he would rule on whether Kemp was immune from testimony due to sovereign immunity that prevents the government from being sued without its consent.


He said he would then weigh what considerations must be made to address concerns from Kemp's legal team that the investigation will have political implications as he seeks re-election in November.

McBurney, however, expressed skepticism about both claims as attorneys for Kemp and the Fulton County District Attorney's Office, which is carrying out the probe, made their case.

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Derek Bauer, an attorney for Kemp, said that a sitting governor could not be brought into court "for any reason."


"It's a jurisdictional bar," he said. "The state is above the reach."

McBurney countered that sovereign immunity applies to civil matters and does not necessarily extend to criminal cases.

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"It's a criminal investigation. The only discussion is criminal statutes," he said. "The only concern is, was there criminal interference with the 2020 general election in Georgia. So it's a criminal investigation -- no jurisdiction?"

Brian McEvoy, another attorney for Kemp, told the judge that the governor is being asked to testify as the gubernatorial election, where he faces Democrat Stacey Abrams who he narrowly defeated in 2018, is "reaching a crescendo" and asked why the district attorney's office would not allow Kemp to testify after the election.

Lawyers for the district attorney's office countered that they made sure the testimony would fall after Kemp's May primary and that Kemp's attorneys were the ones who drew attention to his potential participation in the probe.

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"If the governor had appeared on Aug. 18, driven into a secure location, been brought into the building, appeared, provided testimony, left, there would have been no story," Donald Wakeford, chief senior district attorney said. "There would have been no controversy. There would be no political implications. There would be nothing to talk about."


McBurney seemed to concur, noting that other state leaders such as Secretary of State Brad Raffensperger testified without widespread attention.

Prosecutors have sought testimony from Kemp about calls then-President Donald Trump made pressing him to contest the results of the 2020 presidential election, which saw President Joe Biden win the state.

The judge noted that Kemp, a Republican, reportedly rejected Trump's efforts and therefore could be considered "a victim" of the alleged crimes, not a target.

He added that the inquiry "is inherently 'political' in the simple and unremarkable sense that politicians and leaders of a specific political party are alleged to have undertaken efforts to defeat the will of the Georgia electorate."

As a result, McBurney said that Fulton County District Attorney Fani Willis, a Democrat, or any other prosecutor who would take on the case "is not automatically biased and partisan -- and subject to disqualification -- because of the common political affiliations of the subjects (and targets) of the investigation."

The district attorney's office on Thursday also sought to expand the scope of the probe by ordering Trump's former chief of staff Mark Meadows to appear for an interview on Sept. 27.


Meadows was allegedly part of Trump's efforts to pressure state officials to "find" enough votes for Trump to defeat Biden in Georgia and traveled to the state in an unannounced visit as officials conducted a recount.

He also allegedly joined Trump on a call with Raffensperger where he sought to get state officials to overturn the outcome of the election.

"The Special Purpose Grand Jury's investigation has revealed that the witness was involved in setting up the call," Willis said in the filing.

Willis also sought appearances from Trump attorney Sidney Powell and cyber researcher James Waldron on Sept. 22.

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