February 16, 2023
A Georgia grand jury is concerned witnesses lied to them during their investigation of former President Donald Trump and his allies’ efforts to interfere in the state’s 2020 election—raising the specter of potential charges, reports USA Today.
Descriptions of the alleged lies could be unveiled on Thursday, February 16, when parts of the grand jury’s long-awaited report on the Trump probe are made public. Indeed, although the witnesses won’t be identified and no one has been charged, prosecutors could pursue perjury charges as leverage to broaden the investigation, according to legal experts.
Charges for lying to investigators or perjury are rare because they can be difficult to prove and peripheral to the main case, according to legal experts. But federal prosecutors have convicted witnesses in recent years of lying to authorities during previous investigations of Trump.
“That expands the scope of potential defendants quite a bit,” said Clark Cunningham, a law professor at Georgia State University. “It also opens up the possibility for the district attorney to proceed immediately with perjury indictments, which would be pretty straightforward.”
A perjury charge in Georgia, which carries a maximum ten-year prison term, could be used to leverage testimony for more serious conspiracy charges carrying a maximum 20-year term, according to legal experts. Fulton County District Attorney Fani Willis hired an expert in conspiracy cases against Racketeering Influenced and Corrupt Organizations and legal experts said she may pursue RICO charges in this case.
A RICO charge alleges the suspect participated in at least two crimes, as part of a pattern of criminal activity. State and federal prosecutor—including Trump’s personal lawyer, Rudy Giuliani—have wielded RICO laws in recent decades to combat organized crime and drug dealing. Dozens of charges qualify to build a RICO case, including perjury, bribery and tampering with witnesses or evidence.
Willis has brought RICO cases against Atlanta school officials and alleged gang members, which is why some legal experts expect her to use the statute in the Trump investigation.
Tom Morgan, a criminology professor at Western Carolina University and a former district attorney in DeKalb County, Georgia, said he probably wouldn’t pursue stand-alone perjury charges from a grand jury because those cases are difficult to prove. But he said perjury felonies could become part of a broader RICO case.
“It makes the other counts stronger in the RICO case because it shows a pattern of covering up,” Morgan said. “Juries don’t like that.”
Fulton County Superior Court Judge Robert McBurney said that the part of the report to be released on Thursday “discusses the concern that some witnesses may have lied under oath during their testimony to the grand jury.”
Defenses against perjury charges include witnesses thinking they were telling the truth or making a false statement without knowing it was a mistake.
An average of fewer than 30 people per year during the last decade have been charged with perjury in Georgia and fewer than ten per year have been convicted, according to the Georgia Bureau of Investigation. Yearly convictions twice peaked at 17 during the last decade and there were none last year, according to the agency.
“In my career, I’m not aware of a perjury indictment based on grand jury testimony,” said Morgan, a former 12-year prosecutor. “It’s very rare.”
Samuel Gross, a law professor emeritus at the University of Michigan, said perjury is common, but prosecution of it is rare. Anecdotally, in civil cases, witnesses sometimes lie in response to questions they consider unrelated to the point of the case, Gross said. In criminal cases, police might lie about the justification for a search or defendants might lie to avoid being found guilty, he said.
“Perjury is really, really, really common,” said Gross, referring to a phrase he doesn’t like: “testi-lying.”
Federal prosecutors have charged witnesses with lying to investigators, either as stand-alone charges or in combination with broader cases.
In Fulton County, Willis asked the special purpose grand jury to investigate attempts to interfere with the 2020 election. The inquiry covered Trump’s call January 2, 2021, to state Secretary of State Brad Raffensperger, asking him to “find” enough votes for Trump to win the state. Trump has denied wrongdoing and described the call as “perfect.”
Another aspect of the inquiry deals with the Trump campaign recruiting an alternate slate of presidential electors, in an attempt switch Georgia’s results from President Joe Biden to Trump.
The 75 witnesses who were summoned included Trump advisers such as Giuliani; Senator Lindsey Graham (R-South Carolina); and former House Speaker Newt Gingrich (R-Georgia).
Giuliani, who has been told he is a target of the investigation, testified to state lawmakers about alleged voter fraud. Graham called Raffensperger and his staff in the weeks after the election. Gingrich advocated a strategy to have the House decide the election, which Trump would have won because a majority of state delegations were Republican.
Giuliani, Graham, and Gingrich each have each denied wrongdoing. No charges have been filed and their testimony hasn’t been revealed.
Clark Cunningham said that, if he were Willis, he wouldn’t charge Trump immediately—even if he could—because the former president has numerous defenses that could slow down the case. Instead, Cunningham said people charged with perjury could become cooperating witnesses against higher level conspirators.
“That puts the district attorney in a position to immediately start working with defendants who might become cooperating witnesses and could really open things up,” Cunningham said.
Research contact: @USATODAY