Giuliani’s Sit-Down With Jack Smith Is Bad News for Trump
What this looks like to a former federal prosecutor.
THIS WEEK, SPECULATION mounted about a second potential federal indictment against former President Donald Trump arising from his unlawful retention of government documents. The speculation was fed by Tuesday’s leak of an audio recording of Trump strongly suggesting he was showing a top secret contingency war plan to unauthorized individuals at his resort in Bedminster, New Jersey in July 2021. The speculation held that because of risks involved in the first indictment in the case, issued in Florida earlier this month, a second indictment in New Jersey could serve as a sort of “backup.”
But another bombshell Wednesday hinted at why Special Counsel Jack Smith may feel no need for such a backup indictment. Trump’s former personal lawyer, Rudy Giuliani, has reportedly made a “proffer” of potential January 6th-related testimony. Smith appears to be steaming toward an indictment relating to Trump’s role on January 6th.
That case would be brought in Washington, D.C., where prosecutors have won every trial involving January 6th participants.
Before we unpack what we know and what we can reasonably surmise, here’s a little background: “Proffers” consist of evidence and leads that “profferors” can give prosecutors. Proffers are based on understandings between the parties that give the potential witness a “free pass” to provide everything that might help the prosecution. Truthful information provided cannot be used against the witness offering it. Most often that information is about someone in the prosecutor’s crosshairs.
Proffers can occur in various situations, including when the profferor is not seeking to become a cooperating witness in exchange for leniency. One example is where a subpoenaed grand jury witness, if compelled to testify, will assert the Fifth Amendment. A proffer allows prosecutors to learn something about what the witness has to say. The advantage for profferors is that the information provided cannot be used against them.
HERE’S WHY I THINK that Giuliani is indeed seeking to cooperate.
First, however nonsensical Giuliani’s past thinking and public utterances have been, facing prosecution tends to focus the mind. Giuliani likely sees his freedom at risk because he was so central to Trump’s attempt to overturn the 2020 election before January 6th.
Among other things, after the 2020 election, Giuliani, along with Trump himself, pressured Arizona House Speaker Rusty Bowers to help reverse the certification of Joe Biden’s election, though Giuliani admitted not having evidence to justify such a move. Giuliani also reportedly led the Trump “fake electors” campaign, which aimed to send Congress phony slates of electors from battleground states to provide a pretext for then-Vice President Mike Pence to reject or delay certification of President Joe Biden’s election.
The New York Times reported on Wednesday that in the proffer session, “Mr. Smith asked Mr. Giuliani about [the] plan to create fake slates” of electors. Giuliani was also reportedly asked about his role with Steve Bannon, Trump lawyer John Eastman, and others at a command center at the Willard Hotel near the White House on January 6th itself.
Second, Giuliani probably figures that at this point he owes Trump nothing. Author Michael Wolff reported that in 2021, after Rudy’s over-the-top labors attacking the 2020 election, Trump gave Rudy “the cold shoulder,” irked that “he tried to get paid for his election challenge work.” Of all things!
Third, Giuliani and his lawyers surely feel the prosecutorial vise tightening on him. Two of Nevada’s fake electors have testified before Smith’s grand jury. So has Trump campaign official Gary Michael Brown, who was reportedly connected to the fake-electors scheme, while his boss, Michael Roman, has now reportedly reached a cooperation agreement with Smith. Even Mark Meadows, Trump’s last White House chief of staff, who emailed about the need “to have someone coordinating the [fake] electors for states,” is reported to have testified in Smith’s probe.
And Giuliani has witnessed how Smith has obtained court orders piercing the attorney-client privilege to compel other Trump lawyers’ testimony about their communications with Trump. As to Giuliani, we don’t know whether Smith has already done so in a closed proceeding.
You can see why Rudy might wish to cooperate: The best deals fly away quickly to co-conspirators who come to prosecutors first. Or, as they say, the early worms catch the birds.
Fourth, while prosecutors can’t use the words in a proffer directly against the profferor, those words can be used by prosecutors as leads to investigate a future case against the person interviewed. Would Rudy really want to provide that help without seeking a deal to obtain some leniency in return?
Finally, Giuliani is a target in Georgia. Boy, would he love Jack Smith’s help brokering a global deal with Fulton County District Attorney Fani Willis.
To tempt prosecutors to make a deal, potential cooperators have every incentive to spill their guts. Prosecutors can use against profferors any facts they omitted.
Jack Smith’s prosecutorial team is a freight train barreling down the tracks at full speed, with one destination in mind: Applying the law and the facts to the person or persons atop the chain of command on January 6th. Rudy would be smart to get out of the way.
From the evidence amassed by the House January 6th Committee and the public reporting about Smith’s investigation, we know that a trial against Trump in Washington is unlikely to come out well for him. He understands that the best he can do is derail the train by winning the 2024 election.
Keeping that from happening is not Jack Smith’s job. It’s ours.
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