Legal pressures are mounting for Donald Trump’s ex-lawyer Rudy Giuliani as the US justice department and the House panel investigating the January 6 assault on Congress are both investigating a “false electors” scheme which Giuliani reportedly helped lead to overturn Joe Biden’s 2020 election.
Former prosecutors say the justice department inquiry announced last month could pose a serious legal threat to Giuliani, given his role in helping orchestrate an electoral ploy in seven states that Biden won, involving replacing slates of legitimate Democratic electors with bogus Trump slates.
The false-electors scheme is under growing scrutiny by federal and state investigators as one of the avenues Trump, Giuliani and other allies deployed in their aggressive drive to subvert the election result based on debunked charges of widespread voter fraud.
Giuliani, who was subpoenaed by the House panel in January and is in negotiations about providing some testimony and documents, is one of more than a dozen Trump loyalists the committee has subpoenaed who reportedly were central figures in the stealth electors’ plan to nullify Biden’s election.
The fake electors stratagem was a part of Trump’s discredited and fruitless effort to persuade vice-president Mike Pence to toss out Biden’s electors and substitute bogus Republican electors when Congress met on January 6 to tally up the electoral votes.
The phoney pro-Trump electoral certificates involved dozens of Trump loyalists in states such as Arizona, Georgia and Michigan and were sent to Congress in a brazen effort to thwart Biden’s certification.
Some state legislators who had contacts with Giuliani as part of the scam have been subpoenaed by the panel, such as Mark Finchem in Arizona and Doug Mastriano in Pennsylvania, who are, respectively, running in 2022 to be secretary of state and governor in moves that raise fears of future attempts to subvert American democracy.
The false-electors gambit, which the watchdog group American Oversight helped reveal, has been under scrutiny since last year by state attorneys general in Michigan and New Mexico who have looked into the role of the Trump campaign and laws that may have been broken.
Michigan’s Democratic attorney general, Dana Nessel, who spent almost a year investigating 16 Republicans who submitted false certificates alleging they were the state’s presidential electors – notwithstanding Biden’s victory margin of 154,000 votes – asked federal prosecutors in January to start a criminal inquiry. Subsequently, deputy attorney general Lisa Monaco announced an inquiry into “fraudulent elector certifications”.
Former justice officials say that Giuliani now has several legal problems to worry about as federal and state inquiries expand.
“The threats to Giuliani come from multiple directions,” said Michael Bromwich, a former justice department inspector general. “Evidence is growing that he was at the center of a series of schemes to change the election results – by fraud and by force. As the investigations focus more closely on the people Giuliani recruited to change the election results on January 6 and before, his criminal exposure grows as the number of witnesses against him multiplies.”
Other former prosecutors agree that Giuliani may be in serious legal jeopardy as the justice department proceeds with its fake electors inquiry.
“If prosecutors determine that Giuliani improperly influenced or attempted to improperly influence the election, potentially, he could be charged with state and federal crimes including: falsifying voting documents, fraud, false statements, mail/wire fraud or even conspiracy to defraud the United States,” former federal prosecutor Michael Zeldin told the Guardian.
For Giuliani, the latest legal threats come on top of several others that he faces due to his relentless and widely debunked efforts to help Trump win reelection.
Giuliani was hit last year with a $1.3bn defamation lawsuit from Dominion Voting Systems over bogus and conspiratorial claims that Dominion helped rig the election. Dominion told a court in January there was “no realistic possibility” that it could reach a settlement with Giuliani.
Separately, a Georgia special grand jury inquiry into Trump’s high pressure call on 2 January 2021 to secretary of state Brad Raffensperger asking him to just “find’ 11,780 votes to reverse Biden’s win, could ensnare Giuliani. The Fulton county district attorney who launched the inquiry has indicated it is looking into false claims that Giuliani made before a Georgia state senate committee.
But the new DOJ inquiry into the fake electors strategy could pose more serious legal threats to Giuliani, say ex-prosecutors, since he served as Trump’s right hand man and was involved with multiple schemes to overturn the election results.
“Giuliani was the cog of Trump’s flywheel to overturn the election, getting other Trump allies to act and leaving his imprint for investigators to find,” said former federal prosecutor Dennis Aftergut.
“He’s reportedly key in the bogus slate scheme. That’s dangerous for Giuliani, because forgeries disprove innocent intent. In a conspiracy, which DOJ could charge as to the fake electors, a conviction doesn’t require that he solicited, or even knew about the forgeries, but only that he participated in a conspiratorial plot involving fake electors to help overturn the election.”
The drive to assemble illegitimate electors occurred in December 2020 and was conducted state by state with the involvement of some Trump campaign officials and supporters, and reportedly spearheaded by Giuliani.
Michigan attorney general Nessel told Rachel Maddow of MSNBC that under state law “you have a forgery of a public record, which is a 14-year offense, and election law forgery, which is a five-year offense.” She alleged a “coordinated effort” by Republican parties in several states which prompted her request to DOJ to open a federal inquiry. “Obviously this is part of a much bigger conspiracy,” Nessel said.
The House January 6 panel seems to share those views. Last month the committee subpoenaed Giuliani and three other Trump allies he worked closely with on multiple fronts to overturn the election results by promoting baseless charges of widespread voter fraud.
“The four individuals we’ve subpoenaed today advanced unsupported theories about election fraud, pushed efforts to overturn the election results, or were in direct contact with the former President about attempts to stop the counting of electoral votes,” Democratic representative Bennie Thompson of Mississippi, who chairs the committee, said in a January statement.
Congressman Adam Kinzinger, one of two Republican members on the House panel, in February told CBS’ Face the Nation that “we fully expect that, in accordance with the law, we’ll hear from Rudy.”
Giuliani’s lawyer Robert Costello told the Guardian that talks with the panel are ongoing, but would not offer any details, and scoffed at the justice department investigation into the fake elector certificates.
Facing a subpoena and the prospect of a criminal referral to DOJ from the House panel if he doesn’t cooperate, Giuliani could wind up as a crucial witness.
“Giuliani’s information about various schemes that Trump promoted to block Biden’s win could potentially be very helpful to the House inquiry,” Zeldin noted. “If Rudy provides significant cooperation (which is unlikely) he could help the panel unravel some of the major ways that Trump tried to thwart Biden’s election victory including, most significantly, whether there was any coordination or pre-planning between Trump and those who stormed the US Capitol.”
Still, other ex-prosecutors say the fake electors scheme offers a rich target for investigators to unravel that could spell significant trouble for Giuliani.
“For Giuliani and his crew to have legal trouble, you don’t have to get much more into the facts than to understand that he was orchestrating fake slates of electors, based on fake reports of fraud, using faked documents, to fake the outcome of the election, and then submitting those fake documents to government officials,” said Michael Moore, a former US attorney in Georgia.
“That is a conspiracy that a kindergartener could unravel,” Moore added. “The submission of the pro-Trump fake elector certificates to the National Archives was about as smart as taking the note that you used to rob the bank to the frame shop.”
• This article was amended on 28 February 2022. The call between Donald Trump and Brad Raffensperger that is being investigated by a Georgia special grand jury took place on 2 January 2021, not 2020 as an earlier version said.
