Local prosecutors in Fulton County, Georgia, are actively researching whether they can apply “false statement” charges against Rudy Giuliani and other members of Donald Trump’s team for their mendacity-packed attempts to meddle with the state’s 2020 election results, according to a person familiar with the matter.
Giuliani, Trump’s personal lawyer and a former New York City mayor, twice presented Georgia state legislators withfake evidence and wild allegations of a conspiracy theory to commit widespread election fraud. Separately, on two recorded phone calls to state election officials, then-President Trump made specific false claims that votes for him were discarded and suitcases full of votes for Joe Biden were trucked in.
In a Feb. 10 letter to state officials that was first made public by The New York Times, Fulton County District Attorney Fani Willis did note that her investigation includes—among other crimes—potential violations of Georgia laws prohibiting “the making of false statements to state and local governmental bodies.”
But, until now, there has been no focus on the legal team’s efforts to explore that specific criminal charge. Instead, news stories have touched on the district attorney’s potential use of election fraud or racketeering charges against Trump’s inner circle. The latter would require that prosecutors prove a pattern of corruption—similar to the way law enforcement finds that mafia bosses direct underlings. The idea here would be to prove that Trump and his lieutenants conspired in a “criminal enterprise” to undermine a legitimate election.
Several former Georgia district attorneys told The Daily Beast that investigators are likely relying on a state law that makes it a felony to “knowingly and willfully” make a false statement on “any matter within the jurisdiction” of the state government. The criminal charge carries a punishment of one to five years in prison.
Applying this state law to the former president's attorney would be a beyond-rare strategy, former prosecutors say. But then again, so was Team Trump’s conduct after the election.
The Fulton DA’s public integrity team is said to be zeroing in on the wild claims Giuliani made to Georgia’s state legislators—an integral part of Trump’s multi-faceted attempt to overturn the 2020 election results by pressuring lawmakers and making court challenges. Also under review: Trump’s numerous erroneous assertions in his direct phone calls to Georgia Secretary of State Brad Raffensperger (first reported by The Washington Post) and his six-minute phone chat with an elections investigator (whose audio was made public by The Wall Street Journal).
On Tuesday, The Daily Beast reached attorney Cleta Mitchell, a member of Trump’s legal team who played a key role on the phone call with Raffensperger.
“I have nothing to say about it. I’ll deal with it at the appropriate time,” Mitchell said. She and all others on that call are expected to be approached by Georgia investigators.
Trump advisers did not provide comment on this story, and neither did Giuliani; the former New York City mayor’s attorney Joseph Sibley declined to comment on Tuesday evening. However, a person familiar with the matter said that the former president’s legal strategy to counter any false statement charges would likely involve a free-speech defense, though such discussions are preliminary at the moment.
This effort by a Georgia prosecutor is one of several government cases that Trump is now facing. New York state Attorney General Letitia James and Manhattan District Attorney Cyrus Vance Jr. are both investigating the Trump Organization over potential insurance and bank fraud involving lucrative real estate properties all over the country. Trump is also up against several individual lawsuits accusing him of sexual misconduct.
In recent weeks, Trump has remained, for the most part, publicly mum about this criminal probe. Shortly after the investigation launched, his senior adviser Jason Miller alleged that “this is simply the Democrats’ latest attempt to score political points by continuing their witch hunt against President Trump, and everybody sees through it.”
Giuliani, acting on Trump’s behalf, went before the Georgia state Senate Judiciary Subcommittee on Dec. 3, 2020 and laid out the bogus details of his election conspiracy claim.
Among his worst blatant lies: that the state counted 96,600 “phantom votes.” That’s the same bonkers claim that fueled Sidney Powell’s attempt to overturn Georgia’s election results with her so-called “Kraken” lawsuit—one that was promptly tossed out by a federal judge.
Giuliani also paraded several widely discredited witnesses, including a little-known cybersecurity consultant (and Republican congressional candidate) who wrongly asserted that voting machines across the country in 2020 were technologically flawed. Russ Ramsland’s claims were debunked by top election security experts who made clear that his Texas firm, Allied Security Operations Group, completely misunderstood the technology inside voting machines.
In addition, Giuliani played an edited clip of surveillance video from the State Farm Arena in Atlanta, which he claimed proved ballot-counting irregularities. That video was later analyzed by state election officials, who went frame-by-frame with journalists to prove that there were no “mystery ballot boxes.”
Giuliani repeated the effort one week later on Dec. 10, when he presented his case before the state’s House Governmental Affairs Committee.
Former Georgia prosecutors told The Daily Beast that any use of false statement charges would be a novel—and difficult—undertaking.
“I think it's clearly going to be an uphill climb,” said Kenneth W. Mauldin, who retired last year after 20 years as the district attorney in the area covering the city of Athens.
If Fulton prosecutors pursue false statement charges, Mauldin said, they will have to contend with jurors who mistakenly believe these election conspiracies—and wouldn’t think such statements are actually false. He said defense attorneys could also attempt to bring in conservative Georgia legislators who don’t believe they were lied to.
Charging someone with false statements for lying to legislators would also be unheard of, said Alan Cook, a former district attorney who served as the director of the University of Georgia law school’s prosecutorial justice program for almost two decades.
“It would be highly unusual to use the false statement statutes in a circumstance like this,” he said. “In 13 years as a prosecutor, I probably only used the statute a half dozen times. It's typically used when state or local investigators are investigating a crime and they interview a witness who willfully and knowingly gives false information that misleads the investigators.”
As in: pointing cops in the wrong direction when they’re looking for a fugitive.
However, Titus T. Nichols, a former violent crimes prosecutor in Augusta, said that hitting Trump’s conspiracy theory-spewing team in Georgia with false statements charges is right in line with the spirit of the law.
“This is precisely to stop people from doing this stupid thing—it wastes the government's time,” said Nichols, who now teaches as an adjunct law professor at the University of Georgia. “When you start going deep into ridiculous theories, you cross that line from ‘I'm giving my opinion,’ to ‘I'm purposely giving false information.’”
Giuliani’s decision to present an edited video as fake evidence of a fake crime crosses that threshold, Nichols explained.
“He knows that he's lying when he says that. There are no secret ballots. That's him presenting false information. And with him being an attorney, it's even more clear that he's lying. As a lawyer, you can't just make up ridiculous theories,” he said.
Nichols said Giuliani will be held to a higher standard because he’s a lawyer—albeit one whose professional status is under threat, given that New York is now considering disbarring the man who was once Manhattan’s U.S. Attorney.
As difficult as it might be to make false statement charges stick in Georgia, that approach has proved to be a reliable tool against Trump’s allies at the federal level. Ex-campaign adviser George Papadopoulos pleaded guilty to making false statements in connection with the FBI’s investigation into Russian election interference. London lawyer Alex Van der Zwaan paid the price for lying to federal agents about communicating with Trump campaign deputy chair Rick Gates. And one-time Trump confidant Michael Cohen pleaded guilty to making false statements to a federally insured bank.
There’s no indication that Giuliani committed what would be an entirely different crime: perjury. Prosecutors could go after someone who lies while testifying under oath, as witnesses are forced to do in state court. But that’s not the case here. In Georgia, people who testify before state Senate and House committees are not placed under oath, staff in both chambers told The Daily Beast.
Former prosecutors said it would be much harder for investigators to slap false statement charges against Trump, because his long ramblings were not formally presented before a governmental body and mostly made up of misplaced opinions that he, in fact, won the election.
“It’s almost like when someone is selling you a car. They're gonna say it's a great car,” Cook said.
Instead, in her letters to officials, the Fulton County district attorney has indicated that Trump and his team could be facing even more serious charges: solicitation of election fraud, conspiracy, and racketeering. As part of that effort, Willis has even hired the attorney who literally wrote the book on state RICO charges, John E. Floyd.
And at the core of that inquiry is Trump’s appeal to the state’s top elections official on his Jan. 2 call.
“So look,” Trump told Raffensperger. “All I want to do is this. I just want to find 11,780 votes, which is one more than we have.”
Biden beat Trump in Georgia by 11,779 votes. The ex-president’s comment could be plainly understood to mean that he asked a Georgia state official to change the results of an election—which is specifically listed as a first-degree crime. The very last elections-related offense listed in the Georgia state code makes it illegal to solicit someone to engage in fraud. The punishment is up to three years in prison.
Then again, that kind of behavior also breaks federal law—as former U.S. Attorney General Eric Holder quickly pointed out when that call went public. That one’s five years.