October 7, 2019
As details of the Ukraine scandal that is rapidly engulfing the Trump presidency have become public, the role of President Trump’s “personal lawyer” Rudy Giuliani, the once-acclaimed prosecutor and mayor, has come sharply into focus: Giuliani is now the President’s fixer, the new Michael Cohen.
In a series of increasingly erratic, rambling media appearances since the beginning of the scandal, Giuliani has referred to his role variously as the President’s personal lawyer, an unofficial quasi-State Department operative, and a “private citizen” who was just minding his own business. As Congressional investigators probe Giuliani’s role in the scandal, we can expect him to appeal to a variety of equally incomprehensible quasi-legal defenses to protect the information he knows from public disclosure. But his ever-shifting defenses cannot hide either his true role or the President’s culpability. And none should provide him a legitimate basis to hide the truth from the American public.
In various interviews, Giuliani has suggested that, because he was working as President Trump’s personal lawyer during his involvement in the Ukraine scandal, his communications with the President, the State Department, and numerous other officials are privileged and thus cannot be disclosed. Giuliani has already publicly floated the “defense” in order to avoid complying with Congressional subpoenas. Putting aside its dubious merit, Giuliani’s suggestion that he was working as the President’s private attorney while conducting matters of crucial foreign policy raises significant questions.
First, it suggests that the President went outside of the mechanisms designed to communicate and implement the nation’s foreign policy when dealing with a foreign power. If this is really the case it raises the question of why the President felt it necessary to circumvent these channels. Did he turn to Giuliani to conduct his “investigation” because he knew that such a request would be viewed as criminal by the State Department or the intelligence community? Did he choose Giuliani because the investigation was designed to come up with a specific answer–that Vice President Biden acted corruptly–and he knew that an impartial investigation would do nothing to establish that previously-debunked conspiracy theory? Or did he turn to Giuliani because he knew that only someone who was ostensibly unrelated to the American government could convey the full scope of the pressure he intended to put on the Ukrainian government–namely, that the congressionally appropriated military and financial aid would be withheld pending its cooperation?
Second, it raises questions about the extent to which President Trump intended to hide the extent of his involvement from others within the government. When a President makes official foreign policy decisions, many officials and agencies are involved–both actively, in an advice-giving role, and passively, in order to understand the policy so as to implement it. This structure is critical to the nation’s security because it ensures that our government is acting in concert to address and respond to critical foreign policy issues. Any decision to circumvent such a process puts the nation at risk.
Finally, Giuliani suggested on Fox News that the transcript of the President’s call with the Ukrainian government was “read to [him]” before it became public. This statement alone raises a whole new set of issues, especially given the revelation that the transcript was allegedly improperly placed on a code-word clearance computer system housing the highest classified information in the government. Does Rudy Giuliani have code word clearance to access the transcript? If not, who accessed it in order to read it to him? Did the President authorize the release of the ostensibly secret transcript to Giuliani?
There are also significant questions about whether the attorney-client privilege could possibly apply in this context. Giuliani’s communications with anyone other than President Trump would not be protected. Even in cases where Giuliani was speaking directly with Trump, the privilege would apply only to legal advice and not to communications regarding other matters, such as (“I’d like you to lean on the Ukrainians to see if they’ll go after Biden”). And, of course, the privilege could not be applied if Giuliani’s services were being used to commit a crime.
Furthermore, in exactly what legal proceeding was Giuliani representing Trump? He has claimed the reason he has focused on the Bidens and Ukraine is that he is “doing it to defend my client.” But what specifically was he legally defending him from? Special Counsel Robert Mueller delivered his report to the Justice Department on March 22, 2019. It was released to the public on April 18, 2019, and Mueller formally announced the closing of the Special Counsel’s Office on May 29, 2019. In a recent interview with pro-Trump media personality Bill Mitchell, Giuliani even claimed that he “had long finished my investigation of Ukrainian collusion and Biden corruption” and that he “completed it while the Mueller investigation was still going on.”
Yet much of Giuliani’s efforts to push Ukraine to investigate former Vice President Biden and to get the media to cover his allegations occurred after his role defending Trump in the Mueller probe was “completed.” The New York Times reported in early May 2019, weeks after the Mueller report had been submitted, that Giuliani was planning to travel to Ukraine in an effort to push the incoming Ukrainian government to pursue investigations that would benefit Trump, including into the Bidens. Though Giuliani canceled the trip after his plans were publicized, the Times reported in late August that Giuliani had “renewed his push for the Ukrainian government to pursue investigations” into Trump’s political opponents, describing multiple contacts between Giuliani and Ukrainian officials.
Should Giuliani suggest that he was operating as President Trump’s private attorney, all of these questions should be asked of him.
“I did it at the request of . . . the State Department”
In one of Giuliani’s more bizarre interviews, he waved his phone at the camera while bellowing, “it’s all here! Right here!” Essentially, he was asserting that he had messages that somehow prove he was acting at the behest of the Department of State. He repeated some version of this story in various other media appearances. This strange defense may make sense given Secretary of State Mike Pompeo’s alleged role in the scheme. But it raises many more questions than it answers.
First, it is unclear whether Giuliani was the person giving or receiving the orders. He claims he was working at the behest of the state department, but the relationship, revealed in a series of texts released by the House of Representatives and Giuliani himself, paints a much more complicated picture. Giuliani originally tweeted images of what appear to be at least one group message that purports to be from Kurt Volker, a former State Department official involved in policy towards Ukraine, and an unidentified third party with the initial “A”. In a series of follow-up tweets, Giuliani appears to tell Volker when he will be in Madrid for meetings and correspond with a person he terms a “second State Department Ambassador.” Soon after Giuliani’s tweet-storm, the chairmen of the House Permanent Select Committee on Intelligence, Committee on Foreign Affairs, and Committee on Oversight and Reform, released a cache of text messages that include and provide context to Giuliani’s selectively-released messages. The contents seem to show that Giuliani was instrumental in setting up the July 25th phone call with Zelensky, and was tangentially involved in setting up a meeting with Andrey Yermak, an advisor to President Zelensky. That meeting appears to have been part of a much broader effort, partially directed by Giuliani, to coordinate the Ukrainian government’s response to the Trump administration’s demands for an investigation into Burisma holdings and the Bidens. In fact, the messages appear to show Giuliani directing the US diplomats in question on what they needed to get President Zelensky to commit to in order for the President to get on board. The texts that do not include Giuliani appear to show seasoned diplomats attempting to gather facts about Giuliani’s activities, as someone who was conducting and even directing foreign policy, while simultaneously taking suggestions from him on how best to pressure Ukraine to make a statement regarding an investigation into the Bidens.
In fact, the text exchanges lead to further questions: if Volker and others at State did authorize Giuliani’s meeting to discuss Biden and the Mueller investigation, why did they take messaging advice on such a sensitive diplomatic tasks from a non-governmental employee? And why did they convey such messages via text? And, if there was a meeting between Giuliani and representatives of the State Department, (one message appears to reference a “breakfast”) are there contemporaneous notes of the meeting?
And, at base, the question remains: did the President order the State Department to work with his private attorney to investigate his political rivals? In one particularly damning interaction, Volker advised Yermak that he had “heard from White House–assuming President Z convinces trump he will investigate / “get to the bottom of what happened” in 2016, we will nail down date for visit to Washington.” The Ukrainians had been pushing for a White House visit for months, and were growing increasingly desperate at the time of this offer. Thus, Volker’s text appears to confirm that the Trump administration and Giuliani were using Ukraine’s desire to meet with Trump to solidify their security situation as leverage to extract concessions to agree to conduct baseless investigations into Trump’s political rival.
Second, if Giuliani was truly working as a sort of civilian attache of the State Department, then any records of his conversations, meetings or other discussions with foreign and domestic officials would be subject to the recordkeeping requirements of the Federal Records Act (FRA) and potential disclosure under the Freedom of Information Act. Giuliani claimed on Laura Ingraham’s show on Fox News that he “reported every conversation back to [the State Department].” If true, to the extent Giuliani’s communications with State Department officials were either in writing or electronic, the FRA would require that State preserve them as agency records, and they would be subject to the FOIA’s disclosure requirements upon request. In light of these statutory requirements, the ultimate disposition or disclosure of these records records would be controlled by the State Department and subject to State’s decision-making regarding responding to records requests. Any efforts by Giuliani to unilaterally withhold them from Congress in defiance of a House subpoena would place him in legal jeopardy.
Finally, if Giuliani were acting on behalf of the government, the White House should have designated him as a Special Government Employee — a measure that would have subjected him to the federal conflict of interest laws — because he was performing a governmental function under the supervision of the President. In fact, guidance issued by the Justice Department’s Office of Legal Counsel in 1977, which that office referenced in 2002 and 2005 opinions, suggests Giuliani’s performance of a clearly governmental function for the President may have effectively made him a Special Government Employee, even absent the usual identifiable act of appointment to a government post. In that case, he could face serious consequences if he had financial interests that were potentially affected by his action in Ukraine.
“I’m not acting as a lawyer.”
To further muddy the waters, Giuliani had a bizarre phone call with The Atlantic’s Elaina Plott, wherein he bemoaned his treatment by the media, and said that he was the real hero of this story: “It is impossible that the whistle-blower is a hero and I’m not. And I will be the hero! These morons—when this is over, I will be the hero.” Importantly, he suggested that he was neither acting as the President’s lawyer nor as some sort of liaison to the State Department. Instead, he said, “I’m not acting as a lawyer. I’m acting as someone who has devoted most of his life to straightening out government.” In fact, he finished, “anything I did should be praised.”
This new slightly unhinged “defense” actually raises a number of additional problems for the embattled attorney–and for President Trump. The first question is, again, quite simple: was Giuliani working for the President (in this case outside of his legal capacity)? It’s a question that absolutely must be answered. If Giuliani was not working for the President, he may have run afoul of the little-used criminal statute called the Logan Act (18 U.S.C. § 953), which generally prohibits United States citizens without US government authority from interfering in relations between the United States and foreign governments. If Giuliani were truly working outside of the bounds of any official power–and the memorandum of President Trump’s July 25th call with Zelensky disputes this contention–he could be subject to three years in prison for violating the Logan Act.
Additionally, taking Giuliani at his word that he was conducting this investigation as some sort of heroic citizen-crusader working tirelessly to stop corruption, any communications he had in that role with the President would not be protected by privilege. Congress could rightfully and easily demand to see any records and contemporaneous notes or recordings Giuliani made during his discussions with the President–or anyone else in the government.
The most likely scenario is that Giuliani has been acting as President Trump’s “fixer”–a role that had been generally vacant since Michael Cohen decided to cooperate with the Mueller investigation. In the past, Trump’s fixers occupied a quasi-legal role that relied on dubious assertions of attorney-client privilege, overt criminal activities, and strangely aggressive threats to keep Trump’s secrets under wraps. Cohen, Trump’s most recent and long-time fixer, for example, famously paid off Stormy Daniels to ensure her silence in order to help Trump win the 2016 election. Cohen was also infamously aggressive and litigious, sending extremely threatening letters and appearing in various forms of media to attack anyone who published or said negative things about his client. To no one’s surprise–save, perhaps, President Trump’s–Michael Cohen was convicted on a number of felony counts and is now serving time in federal prison.
This, then, would explain why Giuliani appears to be wearing a number of quasi-legal and quasi-governmental hats. The President wants someone who he can rely on outside of the government to take care of his legal and quasi-legal problems for him by any means necessary. Michael Cohen played that role perfectly for more than a decade. Now, Giuliani may have stepped in to fill his shoes.
Given Giuliani’s increasingly aggressive behavior in support of his client, and his seemingly enthusiastic embrace of the Michael Cohen “fixer” role, it should surprise no one that he appears to be on a collision course with a federal indictment.