Fulton County Superior Court Judge Robert C.I. McBurney

ATLANTA – Gov. Brian Kemp will have to testify before the special grand jury investigating former President Donald Trump’s attempts to overturn the 2020 presidential election in
Georgia, a Fulton County judge ruled Monday.

But the governor won’t have to appear in court until after the November elections, Fulton Superior Court Judge Robert C.I. McBurney declared.

In a six-page decision that followed a hearing last week, McBurney rejected Kemp’s
argument that the legal doctrine of “sovereign immunity” shields him from being
forced to testify in what he termed a civil proceeding.

The sovereign immunity doctrine prohibits the government from being sued without
its consent.

McBurney ruled that sovereign immunity does not apply in this case because it doesn’t
involve a lawsuit against the state and because the special grand jury is not conducting a civil investigation.

“Its purpose is unquestionably and exclusively to conduct a criminal investigation,” McBurney wrote. “Its convening was sought by the elected official who investigates,
lodges, and prosecutes criminal charges in this [judicial] circuit; its convening order specifies its purpose as the investigation of possible criminal activities; and its final output is a report recommending whether criminal charges should be brought.”

Kemp volunteered to testify before the special grand jury late last month. But after back-and-forth negotiations over what should be the topics of the governor’s testimony, Fulton District Attorney Fani Willis issued a subpoena to Kemp early this month.

Trump and his Republican allies in Georgia – claiming widespread voter fraud that was subsequently disproven – demanded that Kemp call a special session of the legislature to put up an alternate slate of electors after Democrat Joe Biden defeated the incumbent president in Georgia in November 2020.

Kemp refused, declaring the law and the Constitution gave him no legal right to intervene in the ertification of Biden’s victory in Georgia.

McBurney acknowledged in his ruling that the questioning of the governor concerning
certain “conversations of interest” in which Kemp participated will be limited to areas that don’t involve attorney-client privilege.

The judge also declared Kemp will not have to appear before the special grand jury until
after the Nov. 8 elections.

“The governor is in the midst of a reelection campaign,” McBurney wrote. “This criminal grand jury investigation should not be used by the district attorney, the governor’s
opponent, or the governor himself to influence the outcome of that election.”

“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,” the governor’s office responded following Monday’s ruling.

“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.”

This story is available through a news partnership with Capitol Beat News Service, a project of the Georgia Press Educational Foundation.