In his six-page order, the judge rejected Kemp’s request to toss the subpoena while recognizing the potential impact of the investigation on the upcoming Nov. 8 election.
“The Governor must honor the subpoena — as have the Secretary of State and the Attorney General and many other agents of the State in these criminal proceedings,” McBurney wrote.
Even so, he added that the investigation should not be used by anyone — including Kemp himself — to influence the outcome of the election.
“The sound and prudent course is to let the election proceed without further litigation or other activity concerning the Governor’s involvement,” McBurney wrote.
The judge concluded that “Once the election is over, the Court expects the Governor’s legal team promptly to make arrangements for his appearance.”
The decision is considered a partial victory for Kemp, whose lawyers had sought at a minimum to delay any testimony until after the election. McBurney had previously expressed skepticism over arguments from Republicans that the prosecution, led by Fulton County District Attorney Fani Willis (D), was politically motivated.
“It is not my space” to focus on politics, McBurney said last week as lawyers for Kemp argued that the subpoena had already become a political issue this election season. “I don’t think it is the right forum” to debate the political ramifications of the case, the judge said.
In his order, McBurney rejected Kemp’s claim that his position as governor protects him from having to testify in what Kemp’s lawyers described as a civil proceeding. McBurney emphasized that the special grand jury is unquestionably investigating possible criminal activity and that its final report will recommend whether the district attorney should file criminal charges.
The legal maneuvering is the latest sign of tension between prosecutors and high-profile witnesses in the Fulton County district attorney’s expansive criminal probe of alleged election interference by Trump and his allies.
Last week, a federal appeals court temporarily paused an order that would have required Sen. Lindsey O. Graham (R-S.C.) to testify before the Georgia grand jury. Graham had formally appealed a judge’s order requiring him to testify last week, saying doing so would cause “irreparable harm” that would be “in contravention of his constitutional immunity.”
The U.S. Court of Appeals for the 11th Circuit temporarily put his appearance on hold, asking a lower court to consider whether Graham should be protected from answering some questions about his official duties as a U.S. senator. A federal judge set expedited deadlines to resolve the questions this week.
After seeking repeated delays, Rudy Giuliani, Trump’s former lawyer, testified for six hours before the grand jury earlier this month. The panel has also heard testimony from Georgia Secretary of State Brad Raffensperger (R) and his staff, Georgia Attorney General Christopher M. Carr (R), state lawmakers and local election workers.
Tom Hamburger and Matthew Brown contributed to this report.