Impeachment, Ukraine

Giuliani’s Hot Mess

The president’s lawyer—or former lawyer? or de facto ambassador?—faces some hard choices.
October 29, 2019
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CLEVELAND, OH - OCTOBER 22: Rudy Giuliani introduces Republican vice-presidential nominee Mike Pence during his campaign stop along side presidential nominee Donald Trump at the International Exposition Center on October 22, 2016 in Cleveland, Ohio. Trump and Democratic presidential nominee Hillary Clinton continue to campaign as Election Day nears. (Photo by Justin Merriman/Getty Images)

Rudy Giuliani recently fired his lawyer, announcing that he didn’t think he needed one, which is a strange message for a lawyer to send into the world, especially when his own most prominent client has a history of rocky relationships with counsel.

Including with Giuliani himself.

But Giuliani’s problems aren’t limited to his business prospects. Due to his involvement in the Ukrainian scandal central to the House’s impeachment inquiry, he may need a lawyer—or several—very soon.

The U.S. ambassador to the European Union, Gordon Sondland, testified to Congress two weeks ago that Giuliani managed a shadow American policy toward Ukraine at the direction of the White House. That policy, according to the testimony last week from former ambassador and current chargé d’affaires to Ukraine William Taylor, included withholding an invitation to the White House and congressionally mandated military aid from the Ukrainian government unless and until the Ukrainians found “evidence” that:

  1. the hackers who targeted the Clinton campaign and the Democratic Party in 2016 weren’t Russian but Ukrainian;
  2. the “black ledger” that revealed evidence of Paul Manafort’s corruption—for which he is now in federal prison—was a fabrication;
  3. the so-called Steele dossier originated in Ukraine; and
  4. Joe Biden tried to protect his son, Hunter, from corruption investigations in 2016.

President Trump has claimed that his policy was an anti-corruption initiative, with the goal of rooting out self-dealing in the Ukrainian government that somehow is connected to the 2016 election and also implicates Joe Biden. That is supposedly why, in the infamous July 25 phone call, the president asked President Zelensky to speak to Giuliani.

Although Giuliani was reportedly at the heart of President Trump’s parallel Ukraine policy, he held no official position in the federal government. So either his actions in Ukraine had nothing to do with policy at all, or he was an unofficial policymaker with the White House’s blessing.

Neither is a good option for him.

If Giuliani Wasn’t Doing Policy Work
Giuliani maintains that he was working on behalf of his client, Donald Trump, in his personal capacity. He therefore refused to comply with a congressional subpoena, citing attorney-client privilege. (Technically, President Trump would have to invoke the privilege, not Giuliani.)

But, assuming for the moment that Giuliani’s characterization of his relationship with President Trump is correct, attorney-client privilege probably doesn’t apply.

The privilege only starts when a lawyer is giving legal advice or a client is requesting it. While the definition of “legal advice” can be difficult to pin down, it probably doesn’t include a globetrotting mission to shake down a foreign government. One hint is that a law degree is not required to run an international protection racket.

Even if acting as a personal representative of the president did count as legal advice, Giuliani would have voided the privilege if he conspired with his client in the commission of a crime. That’s the so-called “crime-fraud” exception to attorney-client privilege.

Did Giuliani commit a crime? It is unclear—much will depend on the facts being gathered by investigators. Anyone who “attempts to intimidate, coerce, threaten, or harass” foreign officials or who “obstructs” them in the performance of their duties, whether this happens abroad or on American soil, is open to prosecution. So, at least in theory—and again, depending on what the facts show—Giuliani could be prosecuted for attempting to coerce President Zelensky into announcing a politically motivated investigation.

And that’s not all. Attorney-client privilege also doesn’t count if the supposedly privileged communication was shared with people who aren’t covered by the privilege—i.e., people other than the attorney and the client—or if the client chooses to disclose the information publicly.

So, for example, President Trump and Giuliani can’t claim privilege over any communications that also included Mick Mulvaney, any of the Trump children, Energy Secretary Rick Perry, Sondland, Taylor, or anyone else.

If that’s not enough, President Trump might not even be able to claim privilege over his communications with Giuliani about Ukraine, because the president has discussed his desiderata from the Ukrainians in public multiple times.

Giuliani also may have violated the Logan Act. That law, which dates back to the administration of John Adams, states, in relevant part:

Any citizen of the United States, wherever he may be, who, without authority of the United States, directly or indirectly commences or carries on any correspondence or intercourse with any foreign government or any officer or agent thereof, with intent to influence the measures or conduct of any foreign government or of any officer or agent thereof, in relation to any disputes or controversies with the United States, or to defeat the measures of the United States, shall be fined under this title or imprisoned not more than three years, or both.

That phrase “without the authority of the United States” is tricky. If Giuliani were carrying out orders of the president, but were neither a de facto nor a de jure official of the United States, could he still be operating under the authority of the United States? Maybe.

But the argument that he was an extension of rightful presidential authority isn’t helped by the fact that the authority was being used illegally to withhold congressionally approved funds, and possibly for other crimes.

Giuliani is probably safe on this count, though, because no prosecution under the Logan Act has ever succeeded. So he’s probably better off telling his lawyer to focus on harassment of foreign officials and spurious claims of attorney-client privilege.

That is, once he gets a new lawyer.

If Giuliani Was Doing Policy Work
Maybe at this point it looks like America’s Mayor would be on sturdier ground if he changed his story and claimed that he was acting as a de facto administration official rather than as the personal representative of the man who happens to be president.

Nope.

For starters, Giuliani’s attorney-client privilege claim would immediately collapse. Government lawyers can’t claim privilege against their own client, the United States government.

No attorney-client privilege means Giuliani would have to turn his communications over to Congress. Which he didn’t.

Refusing to comply with a congressional subpoena could leave Giuliani open to a charge of contempt of Congress, or the more rarely seen charge of obstruction of Congress.

Furthermore, if Giuliani claims he was a de facto government official, he opens himself up to more criminal liability. Writing at Lawfare, Philip Zelikow forcefully argues that Giuliani was at least accessory to a violation of a federal anti-bribery statute.

The elements, as they pertain here, are as follows:

  • Whoever, being a public official . . .
  • corruptly
  • directly or indirectly demands or seeks . . .
  • anything of value
  • for himself or some other person
  • in return for being influenced in the performance of any official act . . .

has committed the felony.

The defense of Giuliani against charges of bribery would probably go like this: The requests for investigations into “Ukrainian interference” in the 2016 election and Biden’s actions as vice president together form a broader anti-corruption initiative—and these requests weren’t designed to help President Trump win reelection but to finally get some answers on a lot of three-year-old funny business.

But Giuliani hasn’t exactly strengthened this argument by his actions. Let’s take the elements of this heroic struggle with corruption one at a time.

  1. The evil-Ukraine-and-Crowdstrike-teamed-up-to-frame-innocent-Russia-for-election-interference-to-hide-their-own-election-interference conspiracy theories: Giuliani has stated publicly that he never believed any of them.
  2. The Manafort “black ledger”: Giuliani’s main source on its origins appears to be . . . Paul Manafort. The ledger was uncovered by Ukraine’s Anti-Corruption Bureau. Is it possible that Giuliani is cooperating with a man convicted of corruption to fight corruption in a foreign anti-corruption agency? Yes, in the same way that it’s possible that you’re right and everyone else is driving the wrong way down the highway.
  3. The Steele Dossier: Giuliani and his recently arrested associate, Lev Parnas, can’t agree on exactly how it was they came to be investigating the dossier’s supposedly Ukrainian origins. Confronted with the contradictions between their two accounts, Giuliani expressed contempt for “petty little facts.” That’s how anti-corruption crusaders usually talk.
  4. The Bidens: This item appears to animate Giuliani most of all, based on a three-minute rant about it he accidentally left on a reporter’s cell phone.

In context, the shadow Ukraine policy looks less like a fight against corruption and more like a narrow, self-interested, political ask for a foreign government to help an American politician—sorry, hospitality mogul—win reelection.

That may also be a crime, because foreign governments aren’t allowed to donate to political campaigns. Specifically:

It shall be unlawful for—

(1)a foreign national, directly or indirectly, to make—

(A) a contribution or donation of money or other thing of value, or to make an express or implied promise to make a contribution or donation, in connection with a Federal, State, or local election;

The Department of Justice—of which, remember, Giuliani was once an employee—advises that “thing of value” includes “intangible as well as tangible things,” so a politically convenient investigation probably counts.

To recap: If Giuliani was a de facto member of the administration, he may have committed contempt of Congress, obstruction of Congress, criminal bribery, and a campaign finance violation. Yet these infractions could all amount to basically nothing because administrations in power are usually unwilling to prosecute their own. (Still, hiring a lawyer would probably be a smart move.)

Giuliani could nonetheless face non-criminal repercussions. If he announced that, effectively, he had been mistaken about who his client was for more than a year, he could be disbarred. And that would not be good for his business with other clients.

The Constitutional Implications of Non-Official Officials
It also might not be good for President Trump. If Giuliani claims that he was a de facto official of the American government, it could accelerate the impeachment inquiry. Article II, section 2, clause 2 of the Constitution states that the president

shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

The highest-level officials in each federal department are nominated by the president and confirmed by the Senate. Lower-level positions are defined by statute and filled according to statutory criteria.

There are exceptions to this rule, though—senior administration officials who exist outside the nomination-confirmation structure. The White House chief of staff and the White House counsel, for example, are advisors to the president who don’t require confirmation. What separates Giuliani from Mick Mulvaney or Pat Cippolone?

The House impeachment investigators could—again, depending on the findings of fact—assert that Giuliani wasn’t acting as an advisor to the president, but instead was a de facto second ambassador to Ukraine, charged with directing policy toward that country. Ambassadors, unlike advisors, are explicitly mentioned in the Constitution as positions requiring Senate confirmation.

It’s not unreasonable to read the Appointments Clause as saying that only confirmed officials can fill the posts enumerated. There are exceptions: recess appointments, which the Constitution permits the president to make when the Senate is not in session, and “acting” appointments, which are permitted by statute. But both these exceptions are limited and temporary—otherwise, the exceptions would swallow the rule, and the president could either fill positions without Senate confirmation or could let confirmed officials languish in office while an informal government of shadow ambassadors, secretaries, and judges does all the real work of governing.

Presidents have frequently relied on informal advisors or even back-channel intermediaries with no formal role in government. But past practice doesn’t preclude the congressional prerogative of impeaching a president for pushing the separation of powers too far and encroaching on congressional oversight.

This is good, old-fashioned checks and balances. If Congress thinks it’s impeachable for the president to abuse his latitude in personnel, that means it’s impeachable.

Another Option?
Giuliani, the country’s most expensive free lawyer, may still have one way out. He could clarify that he never worked for President Trump or for the United States government, at which point the president could declare that Giuliani was an informal advisor whose communications with the president are covered not by attorney-client privilege but by executive privilege.

In that scenario, the president would be assuming responsibility for all of Giuliani’s Ukrainian shenanigans (and any other adventures he may have been involved in). President Trump would be using the expansive power of his office to protect a man who has willingly beclowned himself again and again on the president’s behalf. In short, it would be a magnanimous, self-sacrificing thing for the president to do.

So it looks like Giuliani’s screwed.

Benjamin Parker

Benjamin Parker is a senior editor at The Bulwark.