FILED IN

OFFICE
1 22

IN THE SUPERIOR COURT OF FULTON COUNTY (\‘ue

DE CLE ,S RlOR COU T
STATE OF GEORGIA FULTON COUNTY, GA

IN RE: ) CASE N0.

SPECIAL PURPOSE GRAND JURY ) 2022—EX-000024
)
)

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MOTION TO/OUASH SUBPOENA ISSUED TO GOVERNOR BRIAN P. KEMP AND
MEMORANDUM IN SUPPORT

Governor Brian P. Kemp, through undersigned counsel, respectfully moves this Court for

an order quashing the Subpoena for the Attendance of Witness (the “Subpoena”) issued to him by

the District Attorney’s Office (the “DA’s Office”) on August 4, 2022, because (1) it is barred by

sovereign immunity; (2) it improperly seeks to invade established common law executive and

attorney-client privileges; and (3) it is being pursued at this time for improper political purposes.

In support thereof, the Governor submits this memorandum of law.

I. INTRODUCTION

Governor Kemp has ardently defended the rule of law in this State. Moreover, he welcomes

opportunities to explain and defend his actions. However, the Subpoena ignores—and more

importantly, the DAés Office has refused to account for—the serious privileges it implicates in

relation to the testimony of a sitting Governor. Additional, through delay and artificial deadlines,

the DA’s Office has engineered the Governor’s interaction with the investigation to reach a

crescendo in the middle of an election cycle. This timing cannot be ignored given the Governor’s

repeated efforts to engage with the DA’s Office prior to 2022 and even before announcing his re-

election campaign. In fact, the Governor agreed to a voluntary interview to be held on July 25,

2022, but when counsel for the Governor asked reasonable questions of the DA’s Office regarding

the scope of that interview, the DA’s Office unilaterally canceled the interview and issued the

Subpoena. Why the DA’s Office acted s0 abruptly is unclear.

 Georgia courts have no authority to compel a sitting Governor to provide testimony about _

matters involving his official duties due to sovereign immunity. Even if that were not the centuries-

old law of this State, the Subpoena at issue is improper, and due to be quashed, because its timing

is neither driven by a genuine investigative need for information nor compliant with the established

ethical rules governing prosecutors and election cycle investigations. Any one of these concerns,

standing alone, is a sufficient reason the Subpoena should be quashed; considered together, they

compel that outcome.

II. FACTUAL BACKGROUND

While the special purpose grand jury was only recently authorized, the DA’s Office has

been investigating the events surrounding the 2020 Presidential election for at least a year and a

half. The County District Attorney ’s Letter, N.Y. TIMES (Feb. 20, 2021),
Fulton

https://www.nytirnes.com/interactive/202 l /02/ 1 O/us/politics/letters-to—ge0rgia—officials—from-

fulton-district—attorney.html. During that time, and well before the Subpoena was issued}

Governor Kemp consistently attempted to engage with DA’s Office and to voluntarily provide it

with relevant and appropriate information regarding its investigation. As outlined below, the DA’s

Office ignored, denied, or otherwise frustrated these attempts time and time again.

o On April 27, 2021, Raymond Baez, Deputy Chief Investigator for the DA’s Office,
informed counsel that the DA’s Office was interested in meeting with Governor Kemp
to discuss a telephone call between the Governor and former President Donald Trump.
Investigator Baez stated that Chief Senior Assistant District Attorney Sonya Allen was
running the investigation. Mr. Baez emphasized that the DA’s Office needed to conduct
this interview “sooner rather than later.”

1
The DA’s Office issued a Subpoena purportedly requiring Governor Kemp to appear to testify before the Special
Grand Jury on August 10, 2022. (Attached hereto as Ex. A). Investigator Michael Hill went to the Capitol to attempt
to serve the Governor personally with this subpoena, despite counsel’s engagement in this investigation for 16 months.
Unfortunately, Investigator Hill engaged in subterfuge in attempting to effect service of the subpoena. Investigator
Hill represented to the paralegal at the Office of the Governor that he had spoken to counsel and that they had approved
service, but no such conversation ever occurred. The Parties subsequently attended a meeting with the Court to discuss
conflicts with the August 10, 2022 date and the DA’s Office agreed to adjust the date of compliance to August 18,
2022 and reissued the Subpoena thereafter. (Attached hereto as Ex. B).

2
 That same day, undersigned counsel called Ms. Allen who stated that she was interested
in speaking with the Governor in an informal witness interview. Ms. Allen echoed that
these interviews must occur promptly given the desire to expedite the investigation.
Counsel for the Governor inquired whether it could provide documentary evidence and
Ms. Allen stated that no such requests would be issued because she “was not even sure
what documents he would have.” Counsel for the Governor reiterated a willingness to
engage in an email that same day. The DA’s Office did not respond to this email.
-

Counsel sent another email to the DA’s Office on June l6, 2021, reiterating the Office
of the Governor’s willingness to engage, requesting additional details about the specific
topics that would be covered with Governor Kemp, and asking for confirmation that
the substance of any statements “remain confidential.” (Attached hereto as EX. C).

On June 21, 2021, the District Attorney responded stating “[w]e will be asking for an
interview in August [2021] with Governor Kemp” and “we expect to conclude all
interviews of witnesses that do not need to go before a Grand Jury by September 30,
2021.” The District Attorney assured counsel “the content of the conversation will not
be leaked” and requested that our client and our firm not “even mention that such an
interview is occurring.” The September 30, 2021 deadline came and went without any
communication fiom the DA’s Office. (Id)

On October 5, 2021, Ms. Allen submitted an Open Records Act Request to the Office
of the Governor despite counsel’s previous offer to provide materials and Ms. Allen’s
rejection of that offer. (Attached hereto as Ex. D). The Office of the Governor produced
over 1,000 pages of responsive materials yet received no responsive communication
from the DA ’s Office. (Attached hereto as Ex. E).

In January 2022, counsel proactively emailed Ms. Allen to inform the DA’s Office of
counsel’s new contact information and to confirm the ongoing representation of the
Office of the Governor. (See Ex. C).

On January 20, 2022, counsel called Ms. Allen reiterating the Office of the Governor’s
willingness to engage, inquiring about dates for an interview, and voicing a concern
that we were rapidly moving closer to a high—profile primary and general election Cycle.
(See email correspondence confirming telephone conference, attached hereto as EX. F).
The DA ’s Office did not provide any dates for an interview.

That same day, the DA’s Office sought an order impaneling a special purpose grand
jury “for the purpose of investigating the facts and circumstances relating directly or
indirectly to possible attempts to disrupt the lawful administration of the 2020 elections
in the State of Georgia.” Letter from Fani T. Willis, District Attorney, Atlanta Judicial
Circuit, to the Honorable Christopher S. Brasher, Chief Judge, Fulton County Superior
Court (Jan. 20, 2022). (Attached hereto as EX. G).

Chief Judge Brasher authorized the request four days later on January 24, 2022,
ordering the special purpose grand jury to begin on May 2, 2022, and to continue for a

3
 lyear thereafter (the “Special Grand Jury”). Order Approving Request for Special
Purpose Grand Jury Pursuant to O.C.G.A. § 15-12-100, et seq. (Jan. 24, 2022). (Id)

Counsel emailed Ms. Allen to follow up on the request on February 7, 2022. (See Ex.
F). She did not respond.

Counsel emailed Ms. Allen again on March 11, 2022 to inquire about the interview.
(Attached hereto as Ex. H). She did not respond.

Finally on March 30, 2022, counsel was informed that Ms. Allen was no longer the
appropriate “point of contact” within the DA’s Office. Instead, Donald Wakeford,
Assistant District Attorney, would oversee “a future interview with Governor Brian
’

Kemp.” Mr. Wakeford stated he would reach out “to make arrangements in th efuture,”
but gave no indication of when this would be. Notably, this communication was six
months after the initial September 30, 2021 deadline to complete witness interviews.
(Attached hereto as EX. I).

Counsel emailed Mr. Wakeford on April ll,

2022, trying to discuss this “future
interview” in more detail and to determine the timeline for Said interview. (Attached
hereto as Ex. J). Mr. Wakeford did not respond.

Counsel sent another email correspondence to Mr. Wakeford on April 25, 2022 seeking
to discuss the interview. (Id) Mr. Wakeford responded stating that there was “no
information” the DA ’s Office “wish[ed] to discuss” and would not be calling
Governor Kemp for a voluntary interview before June 1, 2022, the date which the
Special Grand Jury would begin hearing witnesses (which is confusing given that no
jurors would be present at an interview). (Id)

Counsel responded on May 10, 2022, seeking additional information regarding the
interview. (Id). Mr. Wakeford responded saying the DA’s Office “definitely still
intend[ed] to speak with the governor,” but provided no specific information. (Id)

On May 12, 2022, counsel called and spoke with Mr. Wakeford to clarify the timing of
the investigation, raise concerns about the proximity of the investigation to the primary
and general election cycles in Georgia, and to reiterate the Office of the Governor’s
willingness to engage. Counsel requested the opportunity to conduct an attorney
profler prior to a witness interview in order to address any evidentiary or privilege
concerns that might arise. Mr. Wakeford was very receptive to the idea. Counsel also
requested the interview be conducted after the general election so as not to improperly
interfere with an ongoing election. Mr. Wakeford indicated he needed to discuss that
request internally.

Mr. Wakeford emailed counsel shortly thereafter stating that the DA’s Office was
“open to scheduling an attorney proffer” and would “speak with [counsel] to find an
agreeable date.” (Attached hereto as Ex. K). However, Mr. Wakeford stated that the
DA ’s Office was unwilling to interview Governor Kemp “past the date of the general

4
 ”
election, but provided no explanation as to why. (Id)

On June 3, 2022, counsel had a call with Will Wooten, another Assistant District
Attorney, who was now the appropriate point of contact rather than Mr. Wakeford or
Ms. Allen. Several attorneys and investigators within the DA’s Office were also present
on the call. Mr. Wooten discussed the desire to finally arrange a witness interview and
again agreed to an attorney profler. Counsel sent two date options for the attorney
proffer (June 24 or June 27, 2022) and confirmed discussions with the Governor’s
scheduling team to find dates for his informal interview. (Attached hereto as EX. L).

Counsel emailed the DA’s Office the following week providing dates for the
Govemor’s interview (August l, August 2, or August 4, 2022) and requesting
confirmation of the attorney proffer date. Mr. Wooten responded on June 13, 2022,
requesting a conference call. Counsel responded offering an available time, and Mr.
Wooten responded with his availability. (Attached hereto as EX. M). .

Before the conference call could take place, Nathan Wade, the Special Prosecutor to
the DA’s Office, called counsel abruptly that afternoon to inform them that he was the
only individual in the DA’s Office who had authority to enter into agreements
pertaining to the investigation. Mr. Wade voided all previous agreements, including
the attorney proffer, without any explanation. Mr. Wade stated that the August dates
provided were unacceptable, and Governor Kemp’s interview date must be scheduled
within the month of July. Mr. Wade threatened to immediately serve Governor Kemp
with a grand jury subpoena if dates were not instantly provided or if there were no
available date in July. Mr. Wade than stated he would wait on the call until counsel
provided said dates. Counsel replied that they would need to consult with the
Governor’s scheduler, considering he was the active Governor, to identify dates.
Counsel further stated they did not feel threatening a witness was necessary considering
Governor Kemp’s continued and prolonged engagement. Mr. Wade responded that it
was not a threat, it was merely “a fact.”

Following this call, counsel emailed Mr. Wooten and the rest of the investigation team
that had been coordinating with counsel to date, highlighting concerns with Mr. Wade’s
revocation of an attorney proffer agreement, unprovoked hostility, and unnecessary
threat to the Governor. (Attached hereto as'EX. N). No one from the DA ’s Office
responded.

As requested, on June 15, 2022, counsel emailed the DA’s Office providing available
July dates for the Governor’s interview; Mr. Wade responded and confirmed that the
DA’s Office was amenable to a Witness interview on July 25, 2022—one week earlier
than the untenable August 1, 2022 date. Attached hereto as EX. O).

On June 22, 2022, Trina Swanson-Lucas, a senior investigator, attempted to serve a

subpoena duces tecum for documents and a corresponding letter regarding the
Governor’s witness interview. (Attached hereto as EX. P). Coincidentally, that same
day, the Atlanta J ournal-Constitution submitted a FOIA request seeking subpoenas sent

5
 to the Office of the Governor related to the investigation?

o On July 20, 2022, in advance of Governor Kemp’s voluntary interview, counsel

requested that certain protections be put into place to protect the integrity of Governor
Kemp’s testimony and prevent the inadvertent disclosure of privileged information.
(Attached hereto as Ex. Q). In response, the DA ’s Oflice unilaterally canceled the
voluntary interview—calling the requests, including the Court’s recommendation of
providing topics in advance of testimony, “utterly ludicrous”—and stated that
Governor Kemp would now be subpoenaed in fiont of the grand jury in advance of the
2022 General Election as punishment for counsel’s justified requests. (Attached hereto
as Ex. R)

o
Confoundingly, the DA’s Office'stated that the Office of the Governor has “purposely
delayed to get us to our current date” and, as such, it is “meritless” to indicate that
Georgia is in the midst of an election cycle. (Id) It is abundantly clear—as outlined in
great detail above—that the only delay throughout this investigation has been caused
by the DA’s Office and not Governor Kemp, the Office of the Governor, or his counsel. '

Furthermore, it is indisputable that Georgia is very much in an election cycle.

o The DA’s Office also took the false position that only the Court can “outline issues of
evidence and privilege.” (Id) Such an assertion violates both common practice and
judicial economy.

o
Notably, this stance is apparently only applied to the Office of the Governor. The
“utterly ludicrous” request of identifying questions and topics in advance of the
interview in order to proactively address evidentiary and privilege issues was not only
agreed to, but was suggested by, the DA’s Office as a reasonable parameter at the July
21, 2022 hearing held by this Court—less than 24 hours after the DA’s Office had
rejected the Office of the Governor’s request for the same protection. At that hearing,
the Court acknowledged that requesting identification of topics of questions to avoid
implication of a legal privilege a fair request. Similarly, the Court previously suggested
the DA’s Office disclose and discuss topics and questions with counsel for the Office
of the Governor during another meeting.

o
Despite the gamesmanship of the grand jury process, as well as significant legal issues
with the subpoena for documentary evidence, the Office of the Governor nonetheless
voluntarily produced nearly 36,000 pages of materials between July 25, 2022 and July
27, 2022, another 84,000 pages of materials on August 2, 2022, and another 17,000
pages of materials on August 12, 2022. Providing over 40 bankers boxes of responsive
materials—with more materials to come—clearly evidences a continued willingness to
engage with the DA’s Office. (See Production Cover Letters, attached hereto as Exs. S,

2
Tamar Hallerman, Governor Will Deliver Sworn Recorded Statement Instead of Hearing Before Grand Jury, THE
ATLANTA JOURNAL-CONSTITUTION (June 23, 2022), at httpscl/www.ajc.com/poIitics/breaking—kemp-to—testify-in-
fulton—co—trump—prob e/PXZ4ZEMJRJ C STCJ JBYVU6IK7EU/ ?utm_source=1terable&utm_medium=emai1&utm_ca
mpaign=campaign_4538916 (“. . according to a letter from the Fulton County District Attorney’s office dated
.

Wednesday and obtained by the AJC on Thursday”).

 T, U, & V).

I Following a meeting with the Court and the DA’s Office, counsel emailed the Special
Prosecutor on August 8, 2022 requesting that Governor Kemp’s testimony, Whether
formal or informal, be postponed until after the November 2022 election. Counsel also
suggested that an attorney proffer be conducted to identify potential evidentiary and
privilege issues in advance of any testimony. The Special Prosecutor denied these
requests. (Attached hereto as Exs. W and X).

III. ARGUMENT AND CITATION T0 AUTHORITIES

The Subpoena fails on three fundamental levels. First, under the doctrine of sovereign

immunity, this Court lacks jurisdiction to enforce the Subpoena. Second, a court may quash or

modify a subpoena that seeks privileged information. See In re NSM, 183 Ga. App. 398, 399—

400 (1987). Here, large swaths of information that the DA’s Office will likely seek to discuss are

protected from disclosure by the executive privilege and attorney-client privilege. Furthermore,

the DA’s Office has already demonstrated a disregard for important privileges and refitsed to

institute reasonable safeguards to protect witnesses from privileged disclosures. At a minimum,

should the Court find it has jurisdiction to issue the Subpoena, the Court should issue an order p

prohibiting the DA’s Office from questioning the Governor on matters invoking his important

privileges. Third, the Court may quash or modify a subpoena that is unreasonable and oppressive.

See O.C.G.A. § 24-13-23(b)(l). Here,the Subpoena is unreasonable and oppressive because it is

without legal authority and was issued for political, rather than investigative, reasons in violation

of prosecutorial guidelines.

A. Enforcement of the Subpoena Is Barred by the Doctrine of Sovereign Immunity

The Subpoena seeks to attach the compulsory process of this Court to compel the Governor

to testify about acts undertaken in the performance of his official duties. It is the settled law of

Georgia that, in the performance of his official duties, the Govemor- is “the State,” and therefore

beyond the jurisdiction of the Court absent an express waiver of the State’s sovereign immunity.
Lathrop v. Deal, 301 Ga. 408, 420 (2017) (sovereign immunity bars claims against the Governor

for declaration that a law was unconstitutional and for an injunction preventing enforcement of the

law); see also Georgia Dep ’2‘ of Nat. Res. v. Ctr. for a Sustainable Coast, Ina, 294 Ga. 593, 599V

(2014) (sovereign immunity applies to State and its officers and employees sued in their official

capacities). No such waiver or exception applies to the Subpoena, and therefore it is void for lack

of jurisdiction.

Sovereign immunity “protects all levels of governments fiom legal action unless they have

waived their immunity from suit.” Conway V. Jones, 353 Ga. App. 110, 111 (2019). Though the

doctrine gained constitutional status in 1974, it has existed at common law in Georgia since the

State’s founding. Lathrop, 30FGa. at 420. “Simply put, the constitutional doctrine of sovereign

immunity forbids our courts to entertain a lawsuit against the State without its consent.” Id. at

408. Sovereign immunity can only be waived in the Constitution or in a statute enacted by the

General Assembly. Id. at 425; Conway, 353 Ga. App. at 111; see also Ga. Consti Art. I, § 2-

(providing for waiver of sovereign immunity in specific circumstances). Furthermore, where it

applies (as here), sovereign immunity is an absolute bar to the Court’s authority over the State,

because it is jurisdictional. McConnell v. Dep ’t of Lab., 302 Ga. 18, 19 (2017) (emphasis added)

(“[T]he applicability of sovereign immunity is a threshold determination, and, if it does apply, a

court lacks jurisdiction over the case and, concomitantly, lacks authority to decide the merits . . .

.”); Dep ’t ofPub. Safety v. Johnson, 343 Ga. App. 22, 23 (2017) (noting suit barred by sovereign

immunity should be dismissed for lack of subject matter jurisdiction). The Subpoena here is barred

by sovereign immunity because the DA’s Office is seeking to compel the Governor to submit to

the Court’s legal process, and the State has not waived immunity to such process.

r
The Subpoena is directed toward the Governor in his official capacity. The Subpoena seeks
testimony in a state court legal proceeding regarding facts and circumstances relating directly or

indirectly to possible attempts to disrupt the lawful administration of the 2020 elections in the State

of Georgia. Any insight the Governor may have on these arises entirely from
topics necessarily

the performance of his official duties as Governor. See, e. g., O.C.G.A. § 21-2-502 (establishing

Governor and other executive officers’ roles in tabulation of votes and certification of elections).

The DA’s Office has not asserted—nor could it truthfully assert—that the Governor acted at any

time outside of the scope of his official duties in connection with those matters. See Dennison Mfg.

C0. v. Wright, 156 Ga. 789 (1923) (holding suit was against comptroller general in his individual

capacity because it involved alleged actions he committed without lawful authority and beyond

the scope of his official power); Romano v. Georgia Dep’t 0f Corn, 303 Ga. App. 347, 350—51

(2010) (holding action was against state officers in their official capacities Where complaint lacked

allegations that they were acting outside the scope of their official duties); Wang v. Moore, 247

Ga. App. 666, 669 n.6 (2001) (holding that suit, regardless of how styled, was against state

employees in their official capacities where the relevant actions allegedly took place while

employees were administering their duties under color of authority). Whether styled as an action

against the State or an individual, any action that “could result in a . . . decree that would in any

manner affect or control the . . . action of the State, in a manner not prescribed by statute, is a suit

against the State,” and therefore subject to the jurisdictional proscription of sovereign immunity.

Roberts v. Barwick, 187 Ga. 691, 695 (1939). Applying the compulsory power of the Court to

“decree” the appearance of the Governor not only controls his action in his official capacity, but

also requires mobilizing State offices and resources. Absent an express waiver for the DA’s

Office’s issuance of the Subpoena and the Court’s enforcement authority of same—for which none

exists here—sovereign immunity forbids it.

 Sovereign immunity prohibits the Subpoena regardless of Whether the Governor is a

nominal defendant being sued or a mere witness. As the history and purpose of sovereign immunity

shows, the doctrine is not limited to shielding the State from claims for damages. Indeed, contrary

to the idea that sovereign immunity is “principally about the protection of the public purse,” “the

doctrine at common law was understood more broadly as a principle derived from the very nature

of sovereignty.” Lathrop, 301 at see also id. at 425 (noting common law doctrine of
Gar 412—13;

sovereign immunity has been constitutionally reserved and thus applies today as it would at

common law). The doctrine thus applies to injunctive claims, see Georgia Dep’t 0f Nat. Res. v.

Ctr. for a Sustainable Coast, Ina, 294 Ga. 593, 602 (2014), and claims for declaratory relief, see

Olvera v. Univ. Sys. of Georgia ’s Bd. ofRegents, 298 Ga. 425, 428 n.4 (2016), among others.

Because non-party subpoenas to State officers regarding actions within the scope of their

official duties are akin to injunctions applying the force of judicial authority to compel the State

to act, such actions are likewise barred. While the Georgia Supreme Court has not (yet) directly

addressed the application of sovereign immunity in this context, the federal courts have. As the

Fourth Circuit has explained:

Even though the government is not a party to the underlying action, the nature of
the subpoena proceeding against a federal employee to compel him to testify about
information obtained in his official capacity is inherently that of an action against
the United States because such a proceeding ‘interfere[s] with the public
administration’ and compels the federal agency to act in a manner different from
that in which the agency ordinarily choose to exercise its public function.
would
Boron Oil C0. v. Downie, 873 F.2d 67, 70—71 (4th Cir. 1989) (quoting Dugan v. Rank, 372 U.S.

609, 620 (1963)) (reversing denial of motion to quash trial subpoenas to EPA employee); see also

Smith v. Cromer, 159 F.3d 875, 879—81 (4th Cir. 1998) (affirming order quashing subpoenas

directed to DOJ employees in state criminal prosecution based on sovereign immunity); In re Elko

.
Cnty. Grand Jury, 109 F.3d 554, 556 (9th Cir. 1997) (holding sovereign immunity barred state

10
court’s enforcement of grand jury subpoena against federal employee); Houston Bus. l, Inc. v.

Ofi’. ofComptroller ofCurrency, US. Dep ’t ofTreasury, 86 F.3d 1208, 1211—12 (D.C. Cir. 1996)

(noting sovereign immunity bars state court’s enforcement of document subpoena against federal

agency). Because the federal government’s authority—sovereign as it is—is derived Wholly from

(and limited to) the power given to it through the express consent of the States under the United

States Constitution, it follows that the State of Georgia’s interest in preserving its sovereignty is

necessarily greater than the federal government’s in each of these cases in which the federal courts

have prohibited subpoenas to federal officials relating to their official activities.

Indeed, Boron Oil’s reasoning comports perfectly with Georgia law, where courts have

explained the scope of the State’s sovereign immunity in in the same way. Forcing the State to

submit to judicial authority and take action (here, to provide forced testimony about the Governor’s

performance of official duties) without the State’s consent is fundamentally inconsistent with the

nature of sovereignty. See Roberts, 187 Ga. at 694; see also Goolsby v. Regents of Univ. Sys. 0f

Georgia, 141 Ga. App. 605, 609 (1977), disapproved of on other grounds by Deal v. Coleman,

294 Ga. 170 (2013) (sovereign immunity “operates to withhold from the courts jurisdiction over

the person of the state, without regard for the basis of the suit.” (emphasis added)). This is

particularly true Where sensitive matters of (executive communications and deliberations, which

are essential to the official functions of the Office of the Governor, are at issue. See infia Part ILB.

The federal courts have also confirmed that, for purposes of determining whether sovereign

immunity bars the courts’ jurisdiction over a matter, a subpoena is itself a “suit,” placing a

subpoena squarely Within sovereign immunity’s definition as an “immunity from suit,” see

McCobb v.‘Clayton Cnty., 309 Ga. App. 217, 217—18 (2011) (emphasis added). In determining

that tribal sovereign immunity barred enforcement of a subpoena, the Tenth Circuit explained,

11
“suit” necessarily includes legal proceedings or judicial process. Bonnet v. Harvest (US.)

Holdings, Ina, 741 F.3d 1155, 1159—60 (10th Cir. 2014). Of course, a subpoena is a form of

judicial process; to have force and effect it necessarily must be supported by jurisdiction. Id. “The

logical conclusion, therefore, is that a subpoena duces tecum served directly on the Tribe,

regardless of whether it is a party to the underlying legal action, is a ‘suit’ against the Tribe,

triggering tribal sovereign immunity.” Id. at 1160 (emphasis added); see also Alltel Commcn’s,

LLC v. DeJordy, 675 F.3d 1100, 1105 (8th Cir. 2012) (similar). Likewise, under Georgia law,

sovereign immunity applies to all “unconsented—to legal actions,” see Ctr. for a Sustainable Coast,

294 Ga. at 598, which necessarily includes subpoena enforcement.

While the Governor respects the authority of the DA’s Office to conduct its investigation,

it must do so within the bounds of the law, including the centuries—old doctrine of sovereign

immunity upon which the common law of the State was built, and the broad—but not unlimited—

authority of the state courts was derived. No Georgia constitutional provision or statute has waived

sovereign immunity for subpoenas to government officials seeking to compel testimony about their

official activities, and particularly the sitting Governor. See Georgia Lottery Corp. v. Patel, 353

Ga. App. 320, 322 (2019) (“[W]here the plain language of a statute does not provide for a specific

waiver of sovereign immunity and the extent of the waiver, the courts do not have the power to

imply a waiver.” (emphasis added)). Through the Subpoena, the DA’s Office asks the Court to

subject the Governor, in his official capacity (i.e., “the State”), to judicial process without the

State’s consent. The Court lacks jurisdiction to do that, and the Subpoena must be quashed. See

Lathrop, 301 Ga. at 408 (“[T]he constitutional doctrine of sovereign immunity forbids our courts

to entertain a lawsuit against the State without its consent”).

12
 i

B. The Subpoena Calls for Information Protected by the Executive Privilege 1

Even if the Court had jurisdiction to enforce the Subpoena, it is due to be quashed because I

it ignores entirely the substantial privileges the Governor has (and indeed requires) to perform his i

official duties as the Chief Executive Officer of the State.

A court can quash a subpoena that seeks privileged information, particularly Where the

potentially privileged material is cumulative of material available from other sources. In re NSM ,

183 Ga. App. 398, 399 (1987). The executive privilege, vvidely recognized in virtually every other :

jurisdiction to have considered its existence, protects material related to the executive’s
:

and communications. The Court should recognize the privilege Lmder Georgia
deliberative process

law and quash the Subpoena to the extent it calls for this type of privileged information.

“Since the beginnings of our executive officials have claimed a variety of privileges
nation,

to resist disclosure of information the confidentiality of which they felt was crucial to
fulfillment
of the unique role and responsibilities of the executive branch of our government.” In re Sealed i

Case, 121 F.3d 729, 736 (D.C. Cir. 1997). This executive privilege is “essential to discharge of

highly important [executive responsibilities” and has long been recognized by the U.S. Supreme
'

Court as to the federal executive branch and by various states as to their respective executives.

Carl Zeiss Stifiung v. V. E. B. Carl Zez'ss, Jena, 40 F.R.D. 318 (D.D.C 1966), a ’a’ sub nom. VEB. i

Carl Zeiss, Jena v. Clark, 384 F.2d 979 (D.C. Cir. 1967); see also, e. g., United States v. Reynolds, .

345 U.S. 1, 6 n.9 (1953) (recognizing executive’s power to withhold documents as an “executive
'

power which is protected in the constitutional system of separation of power”); State ex rel. Dann

v. Taft, 853 N.E.2d 263, 265 (Ohio 2006) (“Some form of executive privilege has long been

accorded the executive branch by state courts as a matter of the common law of evidence, including
I

courts in Alabama, Alaska, Arizona, California, Colorado, Maryland, New Jersey, New York, i

13
Pennsylvania, Vermont, and Wisconsin”).

Two forms of the executive privilege are relevant here. First, the deliberative process

privilege “allows the government to withhold documents and other materials that would reveal

advisory opinions, recommendations and deliberations comprising part of a process by which

governmental decisions and policies are formulated.” In re Sealed Case, 121 F.3d at 737 (internal

quotation marks omitted). The requirements for invocation of the privilege are that “the

information must be ‘predecisional,’ that is, prepared in order to assist an agency decisionmaker

in arriving at his decision,” and “the information must be ‘deliberative,’ playing a direct part of

the deliberative process in that it makes recommendations or expresses opinions on legal or policy

matters.” In re Polypropylene CarpetAntitrust Litig, 181 F.R.D. 680, 695 (ND. Ga. 1998). The

deliberative process privilege applies to all executive officials and is rooted in the common law.

In re Sealed Case, 121 F.3d at 745.

Second, courts have routinely recognized an executive communications privilege. This

privilege is rooted in constitutional separation of powers principles and is specific to the head of

the executive branch. See id. 1t protects from disclosure “documents or other materials that reflect

presidential decision[—]making and deliberations and that the President believes should remain

confidential.” See In re Sealed Case, 121 F.3d at 745. This includes both pre- and post-decisional

communications solicited, received, and authored by the President and his advisors in the process

of decision—making. See id. at 745, 751—52. The U.S. Supreme Court confronted this claim of

executive privilege in United States v. Nixon, 418 U.S. 683 (1974), when the President challenged

a third—party subpoena issued to him in a criminal prosecution where he was also named an

unindicted coconspirator. The U.S. Supreme Court upheld the validity of the preSidential

communications privilege. Id. The Court elaborated on the doctrine’s two underpinnings. First,

14
there is “the valid need for protection of communications between high Government officials and

those who advise and assist them in the performance of their manifold duties.” Id. at 705. Second,

under the doctrine of separation of powers, the “independence of the Executive Branch within its

own sphere” protects confidential presidential communications fiom judicial subpoena. Id. at 706.

Though the privilege is not enumerated in the Constitution, the Supreme Court has framed the

executive privilege as a “constitutional doctrine[ ] that [is] not spelled out in the Constitution but

[is] nevertheless implicit in its structure and supported by historical practice.” Franchise Tax Bd.

of California v. Hyatt, 139 S. Ct. 1485, 1498—99 (2019) (citing Nixon, 418 U.S. at 705).

Several states found the existence of this executive communications privilege in their
have

common law and upheld the application of it to their governors. See, e. g., Freedom Found. v.

Gregoire, 310 P.3d 1252 (Wash. 2013) (recognizing executive communications privilege derived

from the separation of powers implied in the Washington State Constitution and holding it applied

to documents from negotiation over replaCement of a viaduct, a biological opinion, and proposed

legislation); Nero v. Hyland, 386 A.2d 846 (N .J . 1978) (“[T]he Governor, as chief executive, must

be accorded a qualified power to protect the confidentiality of communications pertaining to the

executive function. This power is analogous to the qualified constitutionally—based privilege of the

President, which is ‘fundamental to the operation of government and inextricably rooted in the

separation of powers.” (quoting Nixon, 418 U.S. at 708)).

There can be no genuine dispute that the bases for recognizing the executive privilege at

the federal level and in other states apply with equal, if not greater force under Georgia common
law. It is equally important in Georgia to preserve the Govemor’s access to candid advice. See

Nixon, 418 U.S. at 708 (noting “necessity for protection of the public interest in candid, objective,

and even blunt or harsh opinions in Presidential decision[—]making”). The doctrine of separation

15
of powers is not merely implied as in other constitutions, but is explicitly enshrined in the Georgia

Constitution. See Ga. Const. Art. l, § 2, 1[ III; see also Nixon, 418 U.S. at 705—06 (explaining roots

of presidential communications privilege in separation of powers). Similarly, the Georgia

Constitution expressly states that the “The chief executive powers shall be vested in the Governor.”

Ga. Const. Art. 5, § 2, fl l. Just as the federal executive privilege, Georgia’s executive privilege is

not “spelled ou
” in the Georgia Constitution, yet is nevertheless implied by the Georgia

Constitution’s structure because of the explicit separation of poWers and chief executive powers

bestowed through the Georgia Constitution.

Unsurprisingly, the Governor’s decision—making before, during, and after the November

2020 election relied heavily on communications with his advisors and on notes and drafts that he

prepared. All of those materials, as well as testimony about them, are protected from disclosure

under the executive privilege.

While the executive privilege is generally held to be a qualified privilege, the burden falls

on the party seeking the information to show a specific need for the privileged material. Nixon,

418 U.S. at 713; In re Sealed Case, 121 F.3d at 737, 746 (to overcome deliberative process

privilege, party must make “sufficient showing of need,” while presidential communications

privilege is even “more difficult to surmount” and requires “a focused demonstration of need”).

The DA’s Office could not possibly carry that burden here. The Governor is not a target of the

Special Grand Jury investigation; and it is undisputed—and indeed acknowledged by the DA’s

Office—that the Governor repeatedly officially rejected the many public entreaties by President

Trump and others for him to use the power of the Governor’s executive office to alter the

administration of the 2020 election in any way. (See Ex. R). Further, the identities of the persons

with whom the Governor spoke about the election are well—known and public record: the DA’s

l6
Office has no special need to invade the deliberative processes and communications of the Chief

Executive in order to obtain evidence from those persons directly. In short, even if the Court had

jurisdiction to issue the Subpoena (and it does not), the DA’s Office cannot carry its burden to

overcome the executive privilege because it can obtain the evidence it seeks from alternate sources

who are far more appropriate subjects for discovery requests from in any event.

This court should recognize the executive privilege and quash the Subpoena to the extent

it calls for communications related to the Govemor’s deliberation and decision-making.

C. The Subpoena Calls for Information Protected by Attorney-Client Privilege

If the Subpoena is ultimately deemed to be proper, it is vitally important for the Court to

establish pre—testimonial guardrails to protect the integrity of the Governor’s attorney-client

privilege. The Court took a similar approach when addressing the legislative privilege asserted by

members of the General Assembly, and such protection would be equally due here. See Order

Denying Motion to Quash (July 6, 2022); see also In re N.S.M., 183 Ga. App. 398, 399-400 (1987)

(affirming order quashing subpoena where the testimony sought “was at best cumulative and at

worst would have invaded the privilege afforded to the attorney/client relationship”).

Attorney-client privilege protects communications where “(1) there is an attomey—client

relationship; (2) the communications in question relate to the matters on which legal advice was

sought; (3) the communications have been maintained in confidence; and (4) no exceptions to

privilege are applicable.” St. Simons Waterfront, LLC v. Hunter, Maclean, Exley & Dunn, P. C.,

293 Ga. 419, 423 (2013) (internal citations omitted). The Governor routinely seeks and receives

legal advice from his Office’s attorneys, and, unsurprisingly, did so routinely in relation to the

2020 election. If the Subpoena is ultimately permitted, Governor Kemp seeks an order directing

the DA’s Office not to ask any questions about the content of Governor Kemp’s confidential

17
communications with counsel on matters for which the Office of the Governor sought legal advice.

Under the structure of the Special Grand Jury, Governor Kemp would not have counsel

present during his testimony as he would in almost any other setting (including a voluntary witness

interview). Additionally, the DA’s Office has refused to confer with Governor Kemp’s counsel

about privilege issues in advance of any testimony. Perhaps most troubling, the DA’s Office has

already shown a disregard for the attorney—client privilege. As the Court is aware, during the grand

jury testimony of a former employee of the Office of the Governor, the DA’s Office unilaterally

and without any basis declared that therewas “no privilege,” intentionally attempted to elicit

privileged information outside of the presence of counsel, laughed at the witness when he asked

to take a break to confer with counsel regarding the privilege, and retaliated against the witness

after he asserted the attorney-client privilege. The Court should protect against further incursions

on established privileges by the DA’s Office before any testimony is compelled.

D. The Subpoena Will Interfere with an Ongoing Election Cycle

In the exercise of the power to quash subpoenas that are unreasonable or oppressive,

Georgia courts have quashed subpoenas that were intended to harass. See Garcia v. Allen, 202 Ga.

App. 529, 529 (1992). Here, the timing of the Subpoena in connection with the unjustified

investigative delay reveals, at best, disregard of an unnecessary risk to the political process, and at

worst, an attempt to influence the November 2022 election cycle.

As already noted, despite the DA’s Office’s having no authority to compel his participation

in its investigation, see supra Section III.A, the Governor has, through his counsel, spent the last

year and a half corresponding with the DA’s Office in an effort to voluntarily provide whatever

nonprivileged information he could possibly possess that could be relevant and material to the

investigation (which is very little, if any). Instead of accepting any of the Govemor’s reasonable

18
proposals to, facilitate the sharing of information, the DA’s Office has instead intentionally delayed

the process, repeatedly reneged on its own proposals, and rejected out of hand any protocols to

ensure that appropriate and applicable privileges are respected. Most concerningly, the DA’s

Office explicitly insisted that its goal is to secure the Governor’s participation in the investigation

before the November 2022 election. (See Exs. L & X). These tactics bring with them clear risks of

political interference, which is why prevailing ethical guidelines discourage them. Confoundingly,

the DA’s Office has stated that it is “not in a rush” to finish the investigation3 and conversely, that

it is unable to delay any investigative efforts past the 2022 Election, including Governor Kemp’s

testimony. The deadline to substantially conduct, or even complete, the investigation prior to the

election is entir‘ely self—imposed, which makes the timing of the Subpoena that much more suspect.

For the following reasons, the Court can and should infer that the purpose of the Subpoena

is not a bona fide quest for information relevant to the investigation: (l) the lack of authority to
issue the Subpoena at all; (2) the DA’s Office’s repeated rejection of the Governor’s many efforts p

to provide it with information on a voluntary basis; and (3) the DA’s Office’s unexplained delay,

followed by stubborn insistence on tying the timing of its improper Subpoena directly to the

November election (even though such timing directly contravenes prosecutorial policy and is

unnecessary given the remaining duration of the investigation). Instead, the timing of the Subpoena

is an effort to politicize the investigation against the Governor in the final sprint of the 2022

election cycle.

Authorities on prosecutorial conduct, including the U.S. Department of Justice (“DOJ”)

and the American Bar Association (“ABA”), recognize the risk that investigations will interfere

Blayne Alexander, Fulton County DA: Expect More Subpoenas of Trump Associates, NBC NEWS (July 6, 2022),
3

available at https://www.nbcnews.com/meet—the—press/meetthepressblog/fiilton-county-da—expect—subpoenas-trump-
associates—rcna36948.

19
With elections. As a result, they caution against the very conduct that the DA’s Office is engaged

in here. For example, the DOJ instructs federal prosecutors to take special care to avoid

inadvertently impacting an election or creating an appearance that the DOJ is attempting to

interfere in an election. Specifically, the DOJ’S Justice Manual’s section on “Protection of

Government Integrity” provides:

In conducting preliminary inquiries or investigations relating to allegations of

_
federal election fraud, Department personnel must exercise care to avoid taking
steps that could inadvertently impact an election or create an appearance that the
Department is attempting to interfere in an election. While credible allegations
should be addressed in a timely and effective manner, it is equally important that
Department personnel exercise appropriate caution and maintain the Department’s
absolute commitment to fairness, neutrality and non-partisanship. . . . [T]he phase
of the election — along with all other relevant factors — should be taken into
consideration when deciding whether it is appropriate to take overt investigative
steps. For instance, any risk that overt Department action could impact the outcome
of an election is greatly diminished, if it exists at all, once voting has concluded.

DOJ, JUSTICE MANUAL § 9-85.215, available at https://www.justice.gov/jm/title—9-crimina1.4

This and similar policies have endured across presidential administrations, attorneys

general, and elections cycles. Attorney General memoranda on “Election Year Sensitivities”

consistently instruct, “[P]rosecutors may never select the timing of investigative steps or criminal

charges for the purpose of affecting any election, or for the purpose of giving an advantage or

disadvantage to any candidate or political party.” Memorandum fiom Attorney General Merrick

Garland to all Department of Justice Employees, Election Year Sensitives (May 25, 2022),

available at https://s3.documentcloud.org/documents/22089098/attorneygeneral-memorandum—

election—year-sensitiVitiespdf (stating “[n]ow that the 2022 election season is upon us, and as in

prior election cycles” DOJ employees are prohibited from allowing “partisan politics” to impact

an investigation or prosecution); see also Memorandum from Attorney General William Barr,

4
As of February 2021, the policy is under review.

20
Election Year Sensitivities (May 15, 2020); Attorney General Loretta Lynch, Election Year

Sensitivities Memorandum (Apr. 11, 2016); Attorney General Eric Holder, Election Year

Sensitivities Memorandum (Mar. 9, 2012); Attorney General Michael Mukasey, Election Year

Sensitivities Memorandum (Mar. 5, 2008) (stating the same). The Attorney General reiterated that

“additional requirements” must be adhered to when “politically sensitive individuals and entities”

are involved, such as candidates for president, vice president, U.S. Senate, or House of

Representatives. Memorandum from Attorney General Merrick Garland, Election Year Sensitives

(stating that written approval from the Attorney General is required to initiate an investigation into

a candidate or campaign for president or vice president). Counsel for the Governor’s
repeated

request to conduct the Govemor’s interview or grand jury appearance either well in advance of the

election cycle or after the November election is in direct accordance with these standards.

Governor Kemp is a declared candidate for the highest office in the State of Georgia, and yet there

has been no effort to “exercise particular care” surrounding his involvement in this election-year

investigation as the DOJ and other entities would require.

Similarly, the DA’s Office’s conduct runs afoul of the National Prosecution Standards as
'

outlined by the National District Attorneys Association (the “NDAA”), which state that “[a]

prosecutor should not hold an interest or engage in activities, financial or otherwise, that conflict,

have a significant potential to conflict, or are likely to create a reasonable appearance of conflict

with the duties and responsibilities of the prosecutor’s office.” If such a conflict does arise, or a

“fair—minded, objective observer” concludes that the prosecutor’s “neutrality, judgment, or ability

to administer the law in an objective manner may be compromised” because of the “personal

interests of the prosecutor,” the prosecutor should excuse herself. Even though the Court has noted

that the DA’s Office’s conduct has given rise to an “appearance of a conflic ” and that “the
optics”

21
of that conduct “are horrific,” the DA’S Office has refused to acknowledge a conflict, let alone

take corrective action to remedy one.5

The ABA’s Criminal Justice Standards provide similar guidance. These standards, which

are “intended as a guide to conduct for a prosecutor actively engaged in a criminal investigation

or performing a legally mandated investigative responsibility,” state:

When, due to the nature of the investigation or the identity of investigative targets,
any decision will have some impact on the political process (such as an impending
election), the prosecutor should make decisions and use discretion in a principled
manner and in a manner designed to limit the political impact Without regard to the
prosecutor’s personal political beliefs or affiliations.

ABA, Criminal Justice Standards:

Prosecutorial Investigations,
Standard 3.6 (emphasis added);

see also ABA, Criminal Justice StandardsiProsecutorial Investigations, Standard 1.2(d) (“The

prosecutor should . . . ensure that criminal investigations are not based upon partisan or other

improper political or personal considerations”); Standard 2.1(d) (“When deciding Whether to

initiate or continue an investigation, the prosecutor should not be influenced by . . .

partisan or

other improper political or personal considerations”).

While DOJ, NDAA, and ABA policy is not binding, the DA’s Office’s disregard for typical

prosecutorial ethical standards is striking and provides important context for how troublesome its

conduct truly is. The DA’s Office has repeatedly and explicitly tethered its desire to
obtain

information fiom the Governor to the timing of the November election. (See supra pp. 3—6). If the

DA’s Office were considerate of principles encouraging prosecutors to minimize the political

impact of their investigations, it would have either considered conducting its interview well in

advance of the 2022 election—which counsel for the Governor attempted to coordinate—or

5
See Aaron Blake, ‘Optics are Horrific ’.' Political Piy‘alls of Trump Probes by Democrats, THE WASHINGTON POST
(July 25, 2022), available at https://www.washingtonpost.com/politics/2022/07/25/optics-are-horrific—political—
pitfalls-trump~probes—by—dems/.

22.
 its requests to the Governor until after the impending election—a request that counsel for
delayed

the Governor has made on numerous occasions. Instead, it has taken the opposite approach which,

regrettably, reveals a suspect political motive: intentionally delaying the Govemor’s involvement

until an election cycle was ongoing and then expressly demanding compliance before the 2022

election.

The DA’s Office’s feigned sense of urgency is telling in light of the timeline of the

investigation. As early as April 2021, the Governor expressed a Willingness to engage, and his

correspondence was met with silence and delay. In the ensuing months, he has offered to provide

an attorney proffer 0r sit for a voluntary witness interview (with necessary conditions to protect

privileges and avoid interference with the election). At every turn, those offers have been met with

opposition or inexplicable silence from the DA’s Office.

The Special Grand Jury has been authorized to continue until May 2023, long after the

November 2022 election. See Special Grand Jury Order at 1. Thus, conclusion of the investigation

before the November 2022 election is unnecessary. Furthermore, such an unrealistic and

unnecessary timeline is discouraged by prosecutorial ethical standards since the integrity of the

2022 election is not at issue. The DOJ cautions, “[i]n situations Where claims of misconduct, if

true, would clearly not impact the outcome of an election, it may be prudent to defer overt

investigation until after the election is certified and all legal challenges are concluded.” DOJ,

JUSTICE MANUAL § 9-85.215. The Special Grand Jury is investigating potential wrongdoing

surrounding the 2020 election, not the 2022 election. EVen if the Special Grand Jury finds evidence

of potential wrongdoing, those findings will not dictate the administration of the 2022 election, so

it would be “prudent to defer overt investigation” where possible. See id.

In summary, the DA’s Office could have obtained information from Governor Kemp well

23
in advanceofthe 2022 election cycle. The DA’s Office could also seek testimony from Governor
Kemp in late 2022 or early 2023, when the Special Grand Jury will still be available. Instead,
through artificial deadlines, the DA’s Office has engineered the Governor's interaction with the
investigation to reach a crescendo in the middleofan election cycle. Unfortunately, what began
as an investigation into election interference has itselfdevolved into its own mechanismofelection
interference. This is particularly egregious when directed toward the State’s highest executive,
who is not accused ofany wrongdoing and is occupied with the business ofgoverning. See supra
Part ILA (discussing the purposeofsovereign immunity).
Even if the Court had jurisdiction to issue the Subpoena, it should not support the DA's
Office’s useofits investigative powers as a sword to influence the 2022 election. The Court should
reject the DA’s Office’s politically motivated efforts to misuse the jurisdiction and compulsory
power of the Court, and it should exercise its authority to quash unreasonable and oppressive
subpoenas by quashing the Subpoena here.
IV. CONCLUSION
For these reasons, Governor Kemp respectfully requests that the Court enter an order
quashing the Subpoena.
Respectfully submitted this 17th day ofAugust, 2022.
1s/Christopher M. Carr
CHRISTOPHER M. CARR
Attomey General
Georgia Bar No. 112505
/s/Brian
F.McEvoy
BRIAN F. MCEVOY
Special Assistant Attomey General

2%
Counselfor Governor Brian Kemp

2
 IN THE SUPERIOR COURT OF FULTON COUNTY
STATE OF GEORGIA
IN RE: ) CASE NO.
JURY
_

SPECIAL PURPOSE ) 2022-EX—000024

GRAN]? ‘
>

)
)

CERTIFICATE OF SERVICE
This is to certify that I have electronically filed the foregoing MOTION TO QUASH

SUBPOENA ISSUED TO GOVERNOR BRIAN P. KEMP AND MEMORANDUM IN

SUPPORT with the Clerk of the Superior Court of Fulton County through Odyssey eFileGA

which Will automatically send electronic mail notification copies to all counsel of record. Courtesy

copies have also been provided to the Court and counsel of record.

This 17th day of August, 2022.

/s/ Brian F. McEvoy

Attorney for Governor Brian P. Kemp