On Emails, PowerPoints, Sovereign Immunity, and Testimony From Governor Kemp

Editor’s note: On Aug. 29, Judge Robert McBurney issued an order denying the motion by Georgia Governor Brian Kemp to quash a subpoena to appear before the special purpose grand jury. The order follows a hearing that took place on Aug. 25 at the Fulton County courthouse in Atlanta, Georgia. The following is a dispatch from that argument.

“I can’t say I’ve read all the emails,” admits Judge Robert McBurney, referring to the lengthy email chains that both the Georgia governor and the district attorney have appended to their filings. “I don’t particularly want to hear a lot about the emails.” McBurney is the supervising judge of the Georgia special purpose grand jury investigating the effort by former President Donald Trump to overturn the 2020 election in Georgia.

It’s 10:30 a.m. on Aug. 25, and yet another high-profile Republican figure is trying to avoid testifying before District Attorney Fani Willis’s investigation. This time, it’s the top Republican official in the state, Brian Kemp. The “emails” in question are not from Hillary Clinton’s private email server, even if Judge McBurney sounds a little bit like Bernie Sanders in that Democratic primary debate, thundering that “the American people are sick and tired of hearing about your damn emails!”

Rather, the extensive email correspondence the judge didn’t read and doesn’t want to hear much about involves negotiations between the governor and the district attorney’s office over his appearance before the grand jury. When will it be? Will it be videotaped? And will it be voluntary or under subpoena?

The parties have just introduced themselves. First up was counsel for Georgia Governor Kemp, Brian McEvoy, a former federal prosecutor and a partner at BakerHostetler. Then there’s his partner, Derek Bauer, a health care and media litigation specialist.

On the other side of the room, Nathan Wade and Donald Wakeford are here to argue on behalf of the district attorney’s office.

McBurney announces that he’s read all the briefs, if not all the emails. He invites Bauer to the podium, instructing him to begin with Kemp’s claim that state sovereign immunity bars his being compelled to testify. As Bauer shuffles toward the podium, McEvoy announces that the Kemp team would like to display a PowerPoint presentation. McBurney allows it, but as always happens with PowerPoint, there’s a long pause as McEvoy works out how to share his slides. After a few minutes of this, McBurney turns to Bauer: “You gonna wait for them to be ready?” he asks. Taking the hint, Bauer offers to get started. “Let’s get rolling,” McBurney replies.

Sovereign immunity, it turns out, doesn’t really require slides.

Bauer begins by declaring that the doctrine of sovereign immunity bars the district attorney from hauling Kemp into court to testify about his official duties. He explains that sovereign immunity is an absolute bar to the exercise of jurisdiction over a sitting governor, unless expressly waived by the Georgia Constitution or by statute. And Kemp, Bauer emphasizes, never waived his immunity.

Before launching into the details of that argument, Bauer tries to explain why Kemp filed his motion to quash “at this point in this investigation.” McBurney jumps in to clarify that the motion was filed on the eve of Kemp’s scheduled appearance—an appearance that had been “carefully negotiated with input from the governor’s office.” In response, Bauer explains that the issuance of a subpoena made the motion “necessary.”

This argument baffles McBurney. If the governor planned to appear voluntarily, what difference would the issuance of a subpoena make? Bauer pushes back, claiming that the parties never reached a “firm agreement” on the date or terms of the governor’s appearance. McBurney appears unsatisfied by this response, but Bauer wants to move on, assuring the judge that his co-counsel will explain everything in “crystal-clear detail.”

With that interlude behind him, Bauer pivots back to sovereign immunity. He barely gets a word in before McBurney cuts him off. “To me, the real issue here is how sovereign immunity applies, if at all, to the criminal context,” he says.

McBurney emphasizes that Kemp is not a target of the investigation. If anything, he argues, Kemp is a “victim,” because he was allegedly pressured to take “improper” actions following the 2020 election. Still, McBurney continues, the district attorney subpoenaed Kemp as a witness in a criminal investigation. Sovereign immunity applies only in civil suits against the state, he says.

As if on cue, the long-awaited PowerPoint materializes on a flat-screen TV mounted against the wall behind McBurney. In bold red text, the title of the first slide declares “SPGJ IS A CIVIL INVESTIGATIVE BODY.” Bauer, knowing good visual aid karma when he sees it, counters the judge’s skepticism by insisting that the special purpose grand jury’s investigation is civil, not criminal. He highlights that the special purpose grand jury cannot return an indictment. And he points to two Georgia Court of Appeals cases, Kenerly v. State and State v. Bartel, which appeared to suggest that special purpose grand juries can conduct only civil investigations.

McBurney stares at the PowerPoint slide on his computer monitor, left eyebrow slightly raised. He notes that the special purpose grand jury was empaneled to investigate criminal wrongdoing. And he wonders aloud why the lack of power to indict would render this a civil investigation. Police officers can’t return an indictment either, he says. But, if a police officer asks someone questions, it’s not a civil investigation—it’s a criminal investigation.

Then, McBurney muses on federal grand juries. In the federal system, he tells Bauer, grand juries are multipurpose tools. Sometimes, the U.S. attorney’s office uses a grand jury solely to investigate criminal matters. He asks if Bauer knows what federal case law says about sovereign immunity.

“I know enough to be dangerous,” Bauer boasts. He (wrongly) informs the court that Supreme Court precedent bars criminal investigations of a sitting president. McBurney jumps back in: “Ok, but this is not an investigation of the governor,” he says. “That’s not the right framework.”

Bauer clicks to the next slide, arguing that Georgia Court of Appeals precedent establishes that grand juries are not authorized to conduct civil investigations of state officials—only of county officials. He seems to think this proves that the state has not expressly waived its immunity to civil grand jury investigations.

McBurney blinks rapidly, as though he has something stuck in his eye. The problem for Bauer is that the cases he cites have nothing to do with special purpose grand juries. Instead, the cases involve grand juries empaneled under O.C.G.A. 15-12-71(b)(2), which permits regular grand juries to investigate “any public authority of the county.” McBurney explains that the grand jury in those cases did go beyond their statutory authority because they tried to investigate a state agency. Here, however, the special purpose grand jury operates under a different statutory provision, O.C.G.A. 15-12-100.

Moving on, Bauer finally gets around to a slide that reads “SOVEREIGN IMMUNITY.” Here, he attempts to rebut the argument that sovereign immunity applies only to suits brought against the state. He contends that the immunity applies to any exercise of jurisdiction over state actors—including a witness subpoena. For support, Bauer turns to Art I, § 2, ¶ IX of the Georgia Constitution, which sets out the state’s constitutional provisions governing sovereign immunity. Parsing the language line by line, Bauer argues that nothing in the state constitution limits sovereign immunity to lawsuits against the state.

McBurney appears unconvinced. “Where is there a case, ever, that says that includes criminal proceedings?” he asks. There doesn’t have to be a case, Bauer replies, because the text of the Constitution does not explicitly waive sovereign immunity in this context. McBurney shoots back, arguing that, if Bauer is right, then surely there would be a case about it. “Your brief says nothin’ about that,” he gripes.

In response, Bauer again insists that the special purpose grand jury’s investigation is civil, not criminal. But McBurney has heard enough of that. He instructs Bauer to assume, for the sake of argument, that the investigation is criminal. Bauer decides to appeal to the history of the doctrine: “Sovereign immunity is a jurisdictional bar that is virtually absolute,” he says. “It’s about whether the State, like the King of Old, has consented to jurisdiction.” Today, Bauer proclaims, Kemp is the “King” for purposes of sovereign immunity’s jurisdictional bar.

Next, Bauer begins to explain why Kemp felt compelled to claim sovereign immunity in this case. Kemp is “not above the law” and “has never pretended to be above the law,” he says. McBurney can’t resist an interjection: “He’s just the King?” he quips.

Bauer, undeterred, goes on to say that Kemp is duty-bound to protect the state’s sovereign immunity. That’s why, he argues, the issuance of the subpoena left Kemp “without a choice” but to defend the sovereign immunity of his office. In closing, Bauer urges McBurney to defer to the governor’s sovereign immunity by granting quashal.

Now, for the district attorney’s office, Wakeford marches to the podium to launch a response. “Your honor asked several questions and I didn’t hear opposing counsel answer those questions,” he begins. This investigation is “clearly” criminal in nature, he says, and sovereign immunity applies only to lawsuits brought against the state.

McBurney first quizzes Wakeford on the criminal nature of the investigation. He carefully walks the court through the Bartel case, which Bauer cited for the proposition that special purpose grand juries can only conduct civil investigations. That’s plainly wrong, Wakeford contends. A special purpose grand jury can be empaneled to investigate civil or criminal matters, and the Bartel grand jury was clearly civil in nature. By contrast, the empaneling order for the Fulton special purpose grand jury specifically authorizes investigation of criminal activity.

McBurney directs Wakeford, as he did Bauer, to assume that this is a criminal investigation. If so, does sovereign immunity apply? In response, Wakeford argues that the doctrine applies only to civil proceedings against the state. Turning to the constitutional provisions mentioned by Bauer, he notes that every listed exception to sovereign immunity relates to civil matters. As a matter of statutory construction, that would suggest that the doctrine applies only in civil actions.

McBurney jumps in to ask whether it’s significant that the subpoena relates to Kemp’s official duties. Kemp isn’t a witness who saw people in a fight, he says. “The only reason he’s connected to this is because of his official capacity and, as I understand the theory of the investigation, entreaties that he exercise his authority in certain ways to benefit folks who thought that the electoral outcome wasn’t what it seemed to be,” he observes.

Wakeford tells McBurney that he is putting the cart before the horse. Whether the governor’s acts were related to his official or unofficial duties is relevant only if there is a lawsuit against the state, he says. Here, it’s a subpoena to be a witness in an investigation.

He adds that the governor’s position, if accepted, would produce several absurd consequences. He points out that state police officers are routinely subpoenaed as witnesses in criminal investigations. The governor’s position would suggest that sovereign immunity could bar the court from compelling the testimony of an officer, he says.

Wakeford sits down, and McEvoy strolls up to the podium to address the governor’s executive privilege argument.

Or, at least, he’s supposed to address the executive privilege argument. Instead, he starts by retreading ground already covered by Bauer about the civil nature of the investigation. Then he announces that he wants to walk through some context as to “why we’re here.”

With that, McEvoy displays a new PowerPoint slide: “POLITICAL IMPACT OF THE SUBPOENA.” To begin, he says that the governor has “been willing to engage” with the investigation since April 2021. Now, he continues, the governor is in the middle of the “most closely followed gubernatorial race in the country.” He declares that the “intersection of law and politics” shouldn’t be happening on the eve of an election.

McBurney interjects to ask, basically, why McEvoy is wasting the court’s time with this discussion. The court isn’t a forum to explore how the governor’s race is going, he says. Taking the reprimand in stride, McEvoy explains that the political context will be relevant later on, when he gets to his “improper political purposes” argument.

McEvoy turns to executive privilege, a doctrine that protects material related to the executive’s deliberations and communications. He argues that courts in other states have applied executive privilege to governors. The judge interrupts to ask if he acknowledges that there is no recognized doctrine of executive privilege for the governor in Georgia, either by statute or by case law. McEvoy concedes that there is no Georgia authority on that point.

McBurney attempts to clarify the scope of the executive privilege argument. He wants to know if McEvoy thinks executive privilege precludes all testimony, or just specific lines of inquiry. McEvoy says it’s the latter, but this prompts McBurney to question why quashing the subpoena would be an appropriate remedy. Like other witnesses who have appeared before the special purpose grand jury, privilege issues could be dealt with on a question-by-question basis on the day of their testimony.

McEvoy shifts the focus to the communication breakdown between the governor and the district attorney. As he describes, the district attorney’s office agreed to allow the governor to appear for a voluntary attorney proffer. But the district attorney subsequently reneged on that promise and, instead, issued a subpoena. McEvoy admits that the governor requested specific dates for his testimony before the special purpose grand jury after he received his subpoena in June. But he only did so with hopes that a voluntary interview with the district attorney’s office could be negotiated, McEvoy claims. “We did not want to be here,” he proclaims.

It’s unclear how any of this relates to executive privilege, but McBurney indulges McEvoy for several more minutes as he continues to grumble about miscommunication with the district attorney’s office. For a man who was explicitly told not to talk about the emails, he sure is talking a lot about the emails.

When McEvoy finally sits down, Nathan Wade pops up to respond on behalf of the district attorney. Wade clarifies that McEvoy demanded each and every question in advance of the governor’s “voluntary interview” and would not allow the interview to be recorded on video. That became a problem, he explains, because the district attorney intended to show the testimony to the special purpose grand jury. Then Wakeford reminds McBurney that there is no gubernatorial executive privilege in Georgia and, even if there was, it should be dealt with on a question-by-question basis.

Briefly, McEvoy trudges back up to the podium to discuss his final argument for quashal. He contends that the court should quash the subpoena because it will have significant political impact on the upcoming governor’s race. He points to American Bar Association standards and Department of Justice guidelines advising prosecutors to consider the political impact of their prosecutorial decisions. And he displays screenshots of a critical tweet from Kemp’s opponent, Stacey Abrams, who says that the governor’s refusal to testify “shows that he will do anything to win an election.”

McBurney observes that the alleged “political impact” arose from Kemp’s decision to fight the subpoena, not from the subpoena itself. The “path of least resistance” would’ve been to quietly appear on the scheduled date, he says. In response, McEvoy argues that the governor doesn’t have the authority to waive sovereign immunity. “I don’t think it’s fair to punish governor Kemp for invoking a legal right or privilege,” he snaps.

Wakeford reluctantly walks to the podium again, letting out an audible sigh when he arrives. Echoing McBurney’s earlier comments, he argues that there would have been no political pushback had Kemp appeared as scheduled on Aug. 18.

McEvoy, unable to let Wakeford have the last word, stands back up to complain, again, about the miscommunications surrounding the voluntary interview agreement. He reveals that the district attorney declined a request for a nondisclosure agreement regarding the proposed interview. He mentions that the special purpose grand jury’s report will become public, which could be damaging to the governor if his testimony “doesn’t go well.” “We are damned if we do and damned if we don’t,” McEvoy says.

The judge moves to closing remarks. He explains that he needs some time to work through the sovereign immunity issue. If he files an order that agrees with Kemp, then the court has no jurisdiction to enforce the subpoena. But if he agrees with the district attorney, then the parties will have a discussion about how to move forward. Turning to Kemp’s team, he asks if there’s anything else they want to add. Bauer announces that the governor plans to seek appellate review if McBurney denies the motion. Then, finally, McBurney adjourns the hearing.

As spectators begin to trickle into the hallway, McEvoy approaches Wade. Nodding toward one another, the men shake hands—a silent agreement, perhaps, that they, too, are sick and tired of talking about the damn emails.