Judge to make ruling over whether Kemp must testify in election probe within a week

ATLANTA — A Fulton County Superior Court judge ruled Thursday that the Fulton County district attorney can continue to investigate and potentially prosecute 11 of the so-called false electors.

That same judge also heard arguments about why Gov. Brian Kemp’s attorneys believe he shouldn’t have to testify before the November elections.

Kemp now believes he has sovereign immunity from having to testify, as his attorneys hinted that his subpoena is politically motivated.

But the judge reminded them that the governor is a potential victim of this possible crime, not the alleged criminal.

“I will do my best to refrain from descending into the political chaos,” Fulton County Superior Court Judge Robert McBurney said.

Attorneys for Kemp insisted that under Georgia law, the grand jury doesn’t have the legal authority to subpoena him.

“The governor doesn’t think he’s above any reach of the law. He’s just beyond the reach of this particular subpoena,” attorney Brian Bauer argued.

But McBurney reminded the attorneys that Kemp isn’t a target of the investigation and that he agreed to testify before he got the subpoena.


“This is not an investigation of the governor. Again, as I understand the theory of the investigation, if the governor were to fall into a category, it would be victim,” McBurney said.

Kemp’s attorneys talked about a breakdown in communications with the Fulton County District Attorney’s Office that led to the subpoena and insisted requiring him to testify before the November election would have a negative political impact.

The DA’s office fired back, saying the subpoena was not at all politically motivated.

“To continually insist that this is a situation engineered by the DA’s office to the intentional detriment of the governor is just not true,” said Don Wakeford with the Fulton County DA’s office.

McBurney did not make a decision Thursday. It will likely come in the next week.

He did make a ruling on the 11 false electors who wanted the judge to disqualify the DA’s office the same way he disqualified it from investigating Republican Party nominee for lieutenant governor, Burt Jones, because of politics.

He said they aren’t the same as the candidate and are not running for office, so the Fulton County DA can still investigate and potentially prosecute them.