The Fulton County District Attorney’s Office on Tuesday slammed Gov. Brian Kemp’s effort to kill his subpoena to testify before a special purpose grand jury, arguing the Republican “unquestionably” had relevant information for its investigation of potential criminal interference in Georgia’s 2020 elections.
Nathan Wade, a special prosecutor advising the grand jury, called many of Kemp’s arguments for quashing the subpoena “wholly without merit.” And he alleged that Kemp’s attorney, Brian F. McEvoy, manipulated email correspondence that was shared in a public court filing last week.
“The manipulation of counsel’s correspondence thread is both unprofessional and disappointing, in addition to undermining the entire premise of the motion,” Wade wrote in his 53-page response to Kemp’s filing.
The prosecutor rejected arguments that Kemp should be dismissed from testifying because of sovereign immunity, executive and attorney-client privilege and proximity to the November elections.
Wade said many of those privileges were not applicable in this case. The governor is “uniquely knowledgeable about the election interference matters being investigated by the grand jury since he was personally involved in the conversations at issue,” Wade argued.
For the first time, Wade identified many of the grand jury’s areas of interest related to the governor. They include: the identities of the people who tried to get in touch with Kemp following the 2020 elections; the contents of phone calls the governor had with President Donald Trump or his associates; evidence the Trump campaign provided in support of its theory that Georgia’s election was rigged; whether Trump specifically sought a special election or other relief; and any threats that might have been made.
Fulton Superior Court Judge Robert McBurney scheduled a hearing on Thursday to examine Kemp’s challenge. He temporarily excused Kemp from testifying on his previously scheduled Aug. 18 subpoena date as his motion is considered.
In his filing last week, McEvoy argued that “large swaths of information” that the DA’s office may want to discuss is protected due to executive and attorney-client privilege, including Kemp’s deliberative process and internal communications with his advisers.
McEvoy also accused the DA’s office of partisan gamesmanship and deception. He said prosecutors appeared to agree to a meeting with Kemp’s attorneys before a voluntary interview scheduled for July 25 but that they changed their minds, abruptly cancelling the governor’s appearance and subpoenaing him days later. He included dozens of testy email exchanges between the governor’s office and Fulton prosecutors in his motion.
Wade said there were many relevant email exchanges missing from Kemp’s filing, some of which Wade attached to his response. He said the DA’s office has a policy of not providing witnesses interview questions in advance, as McEvoy was seeking.
Wade also countered McEvoy’s argument that prosecutors were trying to hurt the governor’s reelection chances by calling him to testify so close to the November elections.
“A reasonable observer may well conclude that (Kemp’s) current, strident show of non-cooperation with the District Attorney and the grand jury’s investigation into election interference by Mr. Trump and his associates — both in the instant motion (to quash his subpoena) and before the media — is itself a tactic to influence the November election,” Wade wrote.
A source familiar with the governor’s office’s thinking argued that one would be hard-pressed to find a person who would deny that mid-August isn’t in the thick of election season. They said any omission of emails wasn’t nefarious and that the description of questions in Wade’s filing included more detail than Kemp’s counsel had ever received from the DA’s office to date.
Wade also quibbled about the 137,000 pages of evidence that Kemp’s office said it produced this summer.
Many of the documents, Wade said, were not at all responsive to the grand jury’s subpoena. Among them were medical records for a deceased Department of Behavioral Health and Developmental Disabilities patient, photographs of dogs in protective canine vests and a soil report, Wade said.
Short of overriding the subpoena, Kemp’s motion requests that the governor’s testimony be delayed until after the elections, and that the court establish parameters for the types of questions that are on and off-limits.
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