Harry Litman is the former U.S. attorney for the Western District of Pennsylvania and deputy assistant attorney general in the Justice Department. He teaches constitutional law in the political science department at the University of California at San Diego and practices at the firm Constantine Cannon.
On June 15, a federal judge ordered Paul Manafort to jail, saying that President Trump’s former campaign chairman had attempted to tamper with witnesses while he awaits trial on money-laundering and federal conspiracy charges springing from special counsel Robert S. Mueller III’s investigation of Russian influence in the 2016 presidential election. Later that day, Rudolph W. Giuliani, a Trump attorney, spoke with the New York Daily News about Mueller’s investigation. “When the whole thing is over,” Giuliani said, “things might get cleaned up with some presidential pardons.”
How should Giuliani’s words be most reasonably understood, and has he exposed himself to criminal liability for obstruction of justice and witness tampering?
The applicable federal statute, 18 U.S.C. 1512, “Tampering with a witness, victim, or an informant,” includes a provision making it a crime if one person “corruptly persuades another person” to “withhold testimony” from an “official proceeding.”
The core factual question on which criminal liability turns is whether Giuliani was attempting to dangle the possibility of a pardon to persuade Manafort not to provide testimony to Mueller.
Is there any real doubt that was Giuliani’s intent? What other explanation makes sense of his words?
Perhaps he would claim that he wasn’t trying to persuade Manafort to not cooperate; he was simply observing a fact, as any other TV commentator might, that Trump could sweep in post-investigation and tidy up the mess with “some” pardons. That reading, though, is far-fetched, and not simply because of the timing.
First, consider the surrounding statements that Giuliani offered. He said Manafort’s jailing had “no justification,” was “excessively zealous” and represented “out of control” behavior. These statements seemed plainly designed to provide Manafort some sense of support that the jailing was deeply wrong and to stir hope that it would be reversed in time.
Second, Giuliani, as he has been doing with increasing zeal, sought to cloak himself in presidential authority. He was making a representation as the president’s spokesman of what he and Trump might want to make happen at the end of the investigation. No mere armchair prediction, this was the next best thing to reassurance from the president.
Giuliani naturally can credibly claim that he has no way of knowing that Trump would actually do. But that’s hardly exculpatory — it remains the case that Giuliani gave every appearance in his capacity as the president’s champion and confidant of hoping to persuade Manafort not to provide testimony to Mueller.
The fact that Giuliani is not president removes from the case any tricky issues of actual presidential power. Trump may one day try to argue — wrongly— that he has an absolutely unfettered power to grant pardons, but Giuliani has none, and thus he cannot shield himself behind any claim of executive authority.
Giuliani might try to defend himself by asserting that he is the president’s lawyer, but nothing in the attorney-client relationship shields counsel from criminal liability for witness tampering. Imagine a mob lawyer visiting a defendant in jail to let him know that the boss intends to provide for his family if he keeps quiet. That would be plainly criminal. How does it differ from Giuliani’s suggestion, sent through the Daily News, that Manafort can hope to be rewarded for not cooperating?
Probably sensing he was on precarious ground, Giuliani tried to back off his claim, asserting on NPR that Trump “is not going to pardon anybody in this investigation. But he is not, obviously, going to give up his right to pardon if a miscarriage of justice is presented to him after the investigation is over.”
That sort of hedging statement might make a prosecutor less inclined to pursue a case, but it sheds little or no light on the potential criminality of Giuliani’s statement in the Daily News. More important, what he told NPR isn’t much of a hedge. It can be read as communicating to Manafort that he might have to wait longer than originally planned for his deliverance from Mueller’s supposedly outrageous behavior. Even in his walk-back, Giuliani still managed to suggest to that he was speaking with authority about the president’s likely future actions.
Mueller has a lot on his hands and ample reason not to open a new file on Giuliani for witness tampering. Then again, as illustrated by guilty pleas from Alex van der Zwaan and George Papadopoulos for lying to the FBI in matters related to the Russia investigation, little focuses the attention and ire of a prosecutor like an attempt to set roadblocks in his pursuit of the truth.
Regardless of how this episode is resolved, it has further tarnished Giuliani's legacy as a scourge of organized crime when he was U.S. attorney for the Southern District of New York. These days the former prosecutor is acting more like the mob lawyers he used to fight.