Gov. Brian Kemp speaks about the economy in McDonough July 29, 2022.

Gov. Brian Kemp speaks about the economy in McDonough July 29, 2022.

Credit: Megan Varner / AP

Lawyers for Gov. Brian Kemp are seeking to quash a subpoena to appear before a Fulton County special grand jury investigating election interference as the largely secret proceedings are entering a new phase of bitter public fights over questioning. 

The 121-page filing also accuses the Fulton County district attorney's office of being unresponsive to the governor's efforts to meet over the last 18 months and argues DA Fani Willis was making the probe political ahead of the November election.

"Unfortunately, what began as an investigation into election interference has itself devolved into its own mechanism of election interference," the filing from attorney Brian McEvoy reads. "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."

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The motion also argues that the governor should not have to answer the subpoena because of sovereign immunity and says some of the things he could be asked about are protected by attorney-client privilege and executive privilege.

Kemp was scheduled to testify Thursday, according to a subpoena filed as part of the motion to quash, after the DA's office canceled a previously-scheduled appointment for the governor to give video testimony. Now, his testimony is on hold until a judge rules on the motion.

Most of the 121 pages are email threads from the governor's attorney and the district attorney's office, detailing the unraveling of a once-cordial relationship into hostile exchanges, including an email from Willis accusing the state's lawyer of being "rude and even disparaging" and delaying his testimony.

"This is NOT a politically motivated investigation," Willis wrote. "You repeatedly referring to it as a politically motivated investigation, does not make it so. In fact, you repeating it so many times only proves you have become very comfortable being dishonest."

But McEvoy, representing the governor, wrote in the filing that the DA's office was the one stalling, sharing emails that show several messages left unanswered and a rotating cast of attorneys from the Fulton County office serving as points of contact, culminating with a "troubling phone call" that rejected proposed dates and nullified previous agreements and conversations about the governor's appearance.

One issue was a pre-interview meeting called a proffer, where Kemp's lawyers sought to discuss concerns about privilege and the scope of his testimony.

Willis said in her July 20 email her office does not do proffers in criminal proceedings like this but instead offered Kemp the "courtesy of having his lawyer present for a taped interview to avoid him having to testify live" before withdrawing that offer and notifying him he would face a subpoena to show up in person.

Kemp's office also provided more than 130,000 pages of documents requested in a subpoena earlier this year that "represents, explains, and provides context" about the 2020 presidential election and its certification process.

With less than 90 days to go before the November election, Kemp's lawyers asked to postpone his testimony until after Election Day, where he is facing a tight reelection battle against rival Stacey Abrams. 

"Given the politically motivated nature of the Office's ongoing investigation and the fact that we are now in an election cycle in Georgia, we are also concerned about potential leaks of substantive testimony," McEvoy wrote on July 20.

The investigation intensifies

The heated public spillover of the mostly private proceedings over the last several months represents the difficult tightrope that the Fulton County DA's office is trying to walk investigating politically motivated election interference by Republican supporters of former president Donald Trump while avoiding the appearance of politically motivated prosecution.

Willis and her staff have already been disqualified from investigating state Sen. Burt Jones, the Republican nominee for lieutenant governor, because the DA held a primary runoff fundraiser for Charlie Bailey, his Democratic opponent.

Jones was one of the leading voices questioning the 2020 election results, and lost his committee chairmanship ahead of the 2021 legislative session because of it. Jones, who received Trump's endorsement in the primary election, signed on to a failed Texas Supreme Court challenge that Georgia's attorney general, also a Republican, called "constitutionally, legally and factually wrong."

Jones also traveled to Washington, D.C., on Jan. 5, 2021 with a letter intended for then-Vice President Mike Pence, urging him to delay certification of the Electoral College votes based on already-debunked false claims of fraud, and served as one of 16 Republicans that falsely claimed to be the state's rightful presidential electors.

This week also saw numerous other developments in the wide-ranging probe seeking to find who might have broken state laws in the failed attempts to reverse Trump's defeat in the 2020 presidential election in Georgia.

On Monday, a federal judge ruled that Sen. Lindsey Graham of South Carolina could not avoid testifying in front of the special grand jury about calls he made to Republican Secretary of State Brad Raffensperger allegedly seeking to throw out absentee votes, denying his claims of privilege as a high-ranking government official and highlighting the jury's desire to ask him about other topics.

Tuesday, lawyers for 11 of the other fake electors asked a judge to reconsider his ruling denying their request to disqualify Willis from investigating them, writing that because of their prominent positions within the state GOP they are "inextricably" tied to Jones.

And hours before Kemp's explosive filing, Trump's personal attorney Rudy Giuliani spent six hours answering questions in the Fulton County courthouse, flying down from New York after a protracted battle over the timing of his testimony and after Giuliani declined to fight the subpoena. The former mayor of New York City was informed Monday he is a target of the investigation, and is a central figure in the sustained fight by Trump and his allies to subvert Georgia's thrice-counted election results. That fight includes several appearances before Georgia lawmakers where he made fantastical and false claims of fraud and wrongdoing with the state's election system and results.

It is unclear when the grand jury will author its report recommending what, if any, charges should be brought against any of the figures that have testified and been targeted in the probe, but both the judge and the DA have indicated a heightened sensitivity will be taken surrounding the beginning of early voting in October. A redacted filing submitted by Judge Robert McBurney outlines a security plan for the drafting of the report.