Georgia Gov. Brian Kemp has been trying to have it both ways over his role in Donald Trump’s efforts to steal the 2020 election—and on Monday the judge overseeing the Fulton County, Georgia criminal investigation of Trump called him on it.
Out of one side of his mouth, Kemp seems happy to say to the public that he stood up for the law when former President Trump asked him to break it.
Meanwhile, with Trump dangling a possible endorsement of Kemp before him as he runs for re-election, Kemp is even more happy to try to stiff a special grand jury as it investigates the potential lawbreaking that Trump unsuccessfully solicited from Georgia officials like him in 2020.
According to Fulton County District Attorney Fani Willis’ office, which oversees the grand jury, Trump reached out to Kemp just after the 2020 election asking for help to change the result in Trump’s favor. The grand jury needs testimony from Kemp to know exactly what happened, and so Willis has subpoenaed him.
On August 17, Kemp sought to quash the grand jury subpoena by borrowing a page from Trump’s book, arguing in essence that Kemp, as governor, is above the law. The law requires every citizen who is a witness to a crime to give testimony to law enforcement or a grand jury when subpoenaed, as Kemp was.
On Monday, Kemp’s legal long-shot fell short. Fulton County Superior Court Judge Robert McBurney issued a six-page ruling that made quick work of Kemp’s claim to immunity.
The judge ordered Kemp to appear shortly after the November 8 midterm election.
Kemp’s main claim was that the doctrine of sovereign immunity bars him from being called to testify. McBurney rejected the claim a mere four days after hearing it argued on last week.
McBurney wrote: “[The sovereign immunity] doctrine ‘forbids our courts to entertain a [civil] lawsuit against the State without its consent.’ … [B]efore [the court is] no civil proceeding,” but rather a criminal investigation.
Demonstrating the inadequate legal quality of Kemp’s attempt to apply the doctrine in the criminal context, McBurney noted that every case Kemp’s lawyers cited involved civil litigation, and that “in a world in which sovereign immunity applied to criminal actions … police officers could flout subpoenas.” The judge concluded that “[t]he Governor must honor the subpoena—as have the Secretary of State and the Attorney General.”
McBurney’s resolution was Solomonic. Willis gets her evidence after November 8, and the governor sidesteps the political season.
Willis wanted Kemp’s testimony immediately, and that timing during campaign season was another one of his complaints. But the delay in getting that testimony barely slows Willis’ work. Even had she gotten the testimony now, she was not going to charge anyone before year-end.
She wants Kemp under oath to lock in his first-hand account of what happened in his contacts with Trump, and she only needs that testimony so that there are no surprises at trial. That can be done equally well in November.
And so, the DA’s winning streak continues. Every prosecutor knows that you don’t always get everything you seek on the way to reaching your goal.
Indeed, Judge McBurney‘s even-handed approach demonstrates a key advantage of the Fulton County litigation, and part of the reason that it has emerged as the leading-edge accountability vehicle for the anti-democratic crimes of Trump and his cronies. You have a driven and effective DA who’s matched by a capable and fast supervising judge.
That’s how the judicial system is supposed to work, which in this case is very bad news for the former president. Charges seem increasingly likely after the election and before 2023.
That makes a formidable one-two punch when combined with the possible federal charges for Trump’s dangerous mishandling of national security documents.
As for Kemp, the last thing he wants is to testify under oath and potentially to be called as a trial witness against Trump. Kemp’s shenanigans here are a reminder that he is no hero of democracy. Indeed, he is not above himself engaging in baseless election fraud claims.
Here, Kemp’s lawyers had worked overtime in getting the political can of Kemp testifying kicked down the road. For months, they feigned cooperation with prosecutors until Willis called their bluff on July 20, after they insisted on preposterous conditions for an interview of the governor. Those demands included an agreement that the interview not be recorded and that the governor would never be called before the grand jury.
No serious prosecutor would agree to such terms, and Willis didn’t. After forcefully calling out Kemp’s lawyers’ tactics, she issued a subpoena.
Kemp agreed to testify on August 18. Then, one day before, his lawyers moved to quash the subpoena. They didn’t get him out of the law’s grip, but they got him an expedient delay.
As for Willis, her success brings to mind those noted legal philosophers the Rolling Stones: “You can’t always get what you want. But if you try sometime, you just might find you get what you need.”
