Rudy Giuliani’s Potential Legal Jeopardy Over the 2020 Election

Rudy Giuliani was a public face of Donald Trump’s efforts to overturn the 2020 election results, and on Jan. 6, 2021 he told a crowd of Trump supporters gathered on the National Mall that “trial by combat” was needed to settle the outcome.

Giuliani used his international fame from his time as mayor of New York City during the Sept. 11, 2001 attacks to boost the false claims that the election was stolen, according to a TIME Studios documentary airing its final episode on MSNBC on Sunday. Giuliani “encouraged the millions of people already believing the Big Lie that here is a respectable former American hero saying that it’s true in all of its fantastical aspects,” said Kurt Anderson, author of Evil Geniuses, in the documentary. “I would say that’s his single greatest crime.”
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Giuliani may in fact face legal liability for crimes related to spreading false claims about the 2020 election and working to send slates of fake electors to Washington to change the outcome. Giuliani is among Trump allies referred to the Department of Justice for criminal charges by the House Jan. 6 committee. In November, Attorney General Merrick Garland instructed special counsel Jack Smith to investigate possible 2020 election interference and efforts to disrupt the peaceful transition of power. Separately, Giuliani’s legal team said in August they were informed that Giuliani was a target of the Fulton County special ground jury that was part of district attorney Fani Willis’ investigation into Trump’s effort to change vote tallies.

Giuliani’s lawyers don’t believe Giuliani faces legal jeopardy in Willis’s case. Giuliani’s lawyer Robert Costello tells TIME that the prosecutor who contacted them in August may not have used the right term to describe Giuliani. “I don’t put much credence in his use of the term ‘target,’ as opposed to ‘subject,’ because frankly, I don’t think that he knew what he was doing,” Costello says.

As for the Justice Department probe, “We have received no communication from Jack Smith’s office, if he has one, anyone working for him, if he has people working for him,” Costello says.

Giuliani’s already seen some other repercussions for his actions. A New York court suspended Giuliani’s state law license in 2021 for lying about the election results. In its decision, the court wrote that Giuliani “communicated demonstrably false and misleading statements to courts, lawmakers and the public at large in his capacity as lawyer for former President Donald J. Trump and the Trump campaign in connection with Trump’s failed effort at reelection.”

Read More: To Understand Rudy Giuliani’s Actions on Jan. 6, Look at a 1992 Police Riot in New York

After the rally on the Ellipse on Jan. 6, when Giuliani called for “trial by combat” to decide the argument over election results, Trump supporters stormed the Capitol to stop the counting of electoral votes and attacked police with sharpened flagpoles, cans of mace, and bear spray. Crowds were chanting “Hang Mike Pence.”

Mike Fanone, a Capitol Police officer who was beaten and tased by people trying to get into the Capitol, said in the documentary that Giuliani’s impact on the crowd came from his notoriety. “America’s mayor is telling people the election was stolen,” Fanone said. “His speech on January 6 was just the culmination of months and months of bullsh-t that he fed to the American people.”

“I blame Rudy more for that day than I do Trump,” said Ken Frydman, who was Giuliani’s press secretary during his run for mayor in 1993. “He encouraged the insurrectionists to take the Capitol. That’s what trial by combat means. By any means necessary.”

Could Giuliani face criminal charges?

Giuliani’s legal liability is “profound,” says Norm Eisen, a senior fellow in governance studies at The Brookings Institution, who was counsel to the Democrat-led House Judiciary Committee during Trump’s first impeachment. Eisen led a team of legal experts at the Brookings Institution to examine what criminal acts may have been taken by Trump and his allies to overturn the 2020 election results.

In the Department of Justice investigation, special counsel Smith is charged with looking into who may have “unlawfully interfered” with the transfer of power after the 2020 election or the certification of Joe Biden’s victory in the Electoral College vote on Jan. 6. Eisen says that Giuliani may have broken federal law against being a part of a conspiracy to defraud the United States by spreading false election fraud claims and promoting slates of fake electors, as well as laws against obstructing an official proceeding in Congress. Eisen cites the language of the federal law against anyone who “incites, sets on foot, assists, or engages in any rebellion or insurrection,” arguing Giuliani may qualify based on his “trial by combat” comment.

“He has as serious criminal risk as anyone other than Donald Trump,” Eisen says.

In a court filing last year, Giuliani defended his speech at the Jan. 6 rally, saying he was speaking “hyperbolically.” According to CNN, Giuliani told the D.C. Bar’s board on professional responsibility in December that his claims of election fraud were part of him “responsibly alleging, based on the things that were told to me by other people. I wasn’t proving – I had a long way to go to prove.”

The challenge for federal prosecutors will be to show that Giuliani knew he was spreading false information. “Can you prove that he knowingly and willfully was making those false statements? That requires proof of state of mind,” says Renato Mariotti, a former federal prosecutor. Proving those cases requires showing what’s in a defendant’s mind, which is “more challenging than you might think,” Mariotti says.

Still, there have been signs Giuliani may have known he didn’t have enough verifiable information to back up his claims. While testifying to the Jan. 6 committee, Arizona House Speaker Rusty Bowers described Trump and Giuliani trying to convince him to hold a hearing to investigate allegations of voter fraud. But Bowers didn’t think there was enough evidence to justify it. Bowers recalled Giuliani responding, “We’ve got lots of theories, we just don’t have the evidence.”

In Willis’ investigation, Giuliani could potentially be charged with making false statements to the Georgia legislature when he appeared before state lawmakers in December 2020, says Eisen at Brookings. And Georgia has a state racketeering law that Giuliani may have violated by being part of a larger effort to overturn Biden’s win in the state, Eisen says. In August 2022, Giuliani appeared before a special grand jury in the Fulton County probe. When part of the grand jury’s report was released in February, it concluded that some witnesses may have lied under oath. But the portions of the report made public didn’t name names.

“We’ve seen no reason to believe that Rudy Giuliani is in jeopardy in Georgia,” says Giuliani’s lawyer Costello. When it comes to legal liability Giuliani faces, “Anything is possible,” Costello says, “but we don’t think anything is likely.”

When Truth Isn’t Truth: The Rudy Giuliani Story is a new four-part series from TIME Studios and MSNBC Films. The series explores the former prosecutor and mayor’s rise to power, his fall from grace, and how little he changed in between. Watch Sunday, March 12th at 10 pm ET on MSNBC and streaming on Peacock TV.