Rudy Giuliani, since leaving the U.S. attorney’s office nearly 30 years ago, has spent only a small fraction of his time practicing law. He has been a mayor, a presidential candidate, a security consultant, a TV pundit and an unhinged campaign surrogate. In his new gig as President Trump’s lawyer, he is now in far over his head, dealing with areas of law in which he has little expertise, and is up against the most formidable group of prosecutors assembled in recent memory. It should surprise no one that he is a font of bad advice and misinformation.
Take Giuliani’s pronouncements on campaign-finance law. Giuliani is under the mistaken impression that so long as campaign funds were not used to repay Michael Cohen for the Stormy Daniels settlement, Trump is in the clear. He actually thinks that he has dispensed with the campaign-finance-law matter. ABC News reports:
“I think the investigation with him [Cohen] largely fell apart, with the loss of the campaign finance possible violation which never existed in the first place, but they sure thought it did,” Giuliani told ABC News Thursday night in a phone interview, adding that his client, President Trump, has nothing to worry about in this matter.
“We don’t hear anything, see anything, see any documents that contradict what we’ve said. Some of the recollection is a little hazy because it came during a very busy period. But, I mean, on both sides it’s pretty clear. They may have a little differences here and there but nothing important.” Cohen faces a criminal investigation by New York’s Southern District U.S. Attorney’s office and a civil suit from Daniels in California.
This is flat wrong as a factual and legal matter. Simply because Giuliani hasn’t heard or seen anything (what would he have seen?) doesn’t mean there is not exposure, both civil and criminal. In its amended complaint filed on Thursday with the Office of Government Ethics, Citizens for Responsibility and Ethics in Washington cites Giuliani’s own words at length and explains:
This newly reported information supports finding that Mr. Cohen made a loan to President Trump for which Mr. Cohen expected to be reimbursed after making a $130,000 payment on behalf of President Trump to Ms. Clifford as part of a nondisclosure agreement. If it was a loan, President Trump likely violated federal law by failing to disclose it as a liability on his OGE 278 report, filed in June 2017 and covering liabilities incurred in 2016 like this $130,000 payment.
To maintain public confidence in the integrity of the federal government, EIGA [the Ethics in Government Act] requires public filers such as President Trump to report the “identity and category of value of the total liabilities owed to any creditor . . . which exceed $10,000 at any time during the preceding calendar year.” . . . Failure to properly disclose information required to be reported on the OGE 278 can result in civil penalties and criminal prosecution. EIGA provides for civil penalties of up to $50,000, and imprisonment of up to one year for knowingly and willfully failing to report required information. Federal law further prohibits anyone from knowingly and willfully making “any materially false, fictitious, or fraudulent statement or representation” in any matter within the jurisdiction of the executive, legislative, or judicial branch, with violations punishable by up to five years in prison.
“Funneling” the payments through a law firm and a specially created LLC is powerful evidence of intent to evade campaign-finance laws. In short, Giuliani has not “settled” the matter of Trump’s potential campaign-finance violation; rather, he has provided valuable admissions. Trump really should have hired someone who understands this area of the law.
Among his ludicrous pronouncements, Giuliani now declares that the chances that Robert S. Mueller III would subpoena Trump are “50/50.” We’ll give him points for recognizing that Trump does not get to choose whether to sit down with Mueller; Trump can give a voluntary interview or get a subpoena to appear before a grand jury without his lawyer. Where does Giuliani get his “50/50” analysis? He made it up.
Let me give a better prediction: 90/10. Trump is a critical witness whose testimony can materially affect charges against himself and others, including Cohen and Paul Manafort. It would be a dereliction of Mueller’s duties as a prosecutor not to seek the information. The notion that he would not try to subpoena Trump because he might lose in court is nonsensical. The available precedent is all on Mueller’s side, and the potential that one might lose in court or that it might take time to enforce the subpoena would have little, if any, impact on Mueller’s thinking. If he were concerned about losing, he would not be pursuing obstruction-of-justice claims against a sitting president, or taking Manafort to trial. There is always a risk of losing. Count this 50/50 hooey as another instance of Giuliani’s atrocious legal advice.
The worst of all, however, is Giuliani’s public exhortation for Attorney General Jeff Sessions to interfere with the Cohen investigation by going after the investigators (presumably Giuliani’s former colleagues at the U.S. Attorney’s Office for the Southern District of New York, the court that issued the warrant, the criminal division of the Justice Department, etc.). “I am waiting for the Attorney General to step in, in his role as defender of justice, and put these people under investigation,” he declared.
This is obstruction of justice — the very thing Trump is accused of doing in the case of Michael Flynn — hiding in plain sight. “Giuliani’s statement is part of a profoundly troubling assault by Trump and his cronies on the norm of non-interference with criminal investigations,” says former White House ethics counsel Norm Eisen. “This penumbra of hostility and aggression towards the rule of law [and] those who administer it surrounds and reinforces the core, possibly obstructive conduct of the president in pressuring and firing [James B.] Comey, intimidating and threatening him and other witnesses, fabricating false narratives for witnesses such as his son Don Jr., and the like.”
Demanding that the Justice Department shield the president’s allies from prosecution or use its power to go after Hillary Clinton, as Giuliani personally urged during the campaign, is an outrageous violation of the rule of law. “Giuliani is making clear that what the president has asked for all along — for someone at the department to step in and quash a lawfully predicated investigation — is now a central part of their strategy,” says former Justice Department spokesman Matt Miller. “These are the same demands to obstruct justice that the president has been making in public and private for over a year, and now he’s found an attorney who will add a thin veneer of legality to it. But it is nothing more than corruption out in the open.”
Giuliani is Trump’s cartoon version of what a lawyer does. Playing Roy Cohn on TV is one thing; engaging in this conduct when you serve as the president’s lawyer is quite another. It might be delightful for prosecutors and Michael Avenatti to watch Giuliani mess up this badly, but the president really should have better legal help. Oh, but wait. Esteemed lawyers won’t take Trump as a client. Well, it’s fitting, I suppose, that a client as bad as Trump gets a lawyer as bad as Giuliani.