Giuliani Hints at New Defense: So What If Trump Did It?




 

(Bloomberg Opinion) -- Slowly but perceptibly, the Trump administration is moving towards a concrete defense in the president's Senate impeachment trial: Not that Donald Trump didn't pressure Ukraine to investigate Joe and Hunter Biden, but that he did - and that there's nothing wrong with it.

The latest indication of this direction comes from the president's personal lawyer, Rudy Giuliani, who in a couple of press interviews has acknowledged his role in advising President Trump to arrange the firing of the U.S. ambassador to Ukraine, Marie Yovanovitch, because Giuliani believed she stood in the way of getting those investigations.

If Trump wanted to focus on the impeachment defense that there was no quid pro quo and that he innocently asked for the investigations in order to fight corruption, then it would be genuinely crazy for his personal lawyer to reveal the specifics of how and what he communicated to the president. Giuliani's statements are terribly harmful to Trump's case - and he has now effectively waived attorney-client privilege, so he could be called to testify.

Of course Giuliani could just be crazy, a loose cannon making statements deeply detrimental to one possible line of defense his client might want to use in his Senate trial. But it seems more likely that Giuliani is foreshadowing Trump's future defense.

To see why Giuliani's interviews are only sane if Trump is planning a "so what" defense, consider how damaging the revelations are to the alternate defense that Trump was seeking to fight corruption, not achieve personal gain.

Most basically, Giuliani's narrative shows definitively that Ukraine policy was being driven by Trump's personal political objectives, not by the national interest. That's why Giuliani, a man with no U.S. government position - but with a direct, personal attorney-client relationship with the president - was driving the policy. It's not normal for the president's personal attorney to advise on the removal of an ambassador - who doesn't work for the president personally, but for the U.S. government. The very fact of Giuliani's advice, coupled with its ultimate success, helps prove the case that Trump was abusing his office, using the power of the presidency to advance his personal goals.

Put another way, Giuliani's interviews connect the dots between the policy of seeking the investigations from Ukraine and the president's personal goal of reelection. If the investigations had been aimed at rooting out corruption, it would have been logical for the State Department or the Justice Department to seek and demand them. Astonishingly, Giuliani seems to be going out of his way to make the very case that the House Democrats tried to make in the hearings before the intelligence committee: that Giuliani was the tool through which the president subverted the national interest to his personal advantage.

It's also frankly bizarre that the president's personal lawyer is talking to the press about matters he's refused to discuss under oath in testimony. Unlike former National Security Advisor John Bolton or acting Chief of Staff Mick Mulvaney, Giuliani could not claim executive privilege to refuse to testify. He doesn't work for the president in an official capacity, so executive privilege doesn't apply to him. Giuliani's refusal to testify would have to come in the form of a claim of attorney-client privilege, the same as any lawyer could claim on behalf of a client.

Yet by talking openly about conversations he had with his client, President Trump, Giuliani is effectively waiving attorney-client privilege. A classic instance of how attorney-client privilege is waived is disclosure to third parties - and the general public certainly counts as a third party. As a matter of law, Giuliani could now be subpoenaed to discuss his conversations with Trump about Yovanovitch and probably the investigations more generally. He's given away whatever privilege he once had.

Maybe Giuliani thinks he won't be called as a witness before the Senate. Yet if the House impeachment managers get the chance to call anyone, they would now be well advised to call Giuliani.

The only rational explanation (assuming reason applies to Giuliani's conduct) is that Trump plans to have his surrogates acknowledge that he was seeking personal gain by pressuring Ukraine - and that he intends to have them claim that doing so was perfectly legitimate. To use the metaphor he himself has made famous, Trump apparently won't deny shooting someone on Fifth Avenue. He'll just say he was within his rights to do so, and that the shooting wasn't an impeachable offense.

If Trump was always going to adopt the so-what defense, he should have done it sooner. Then he could have allowed some executive branch officials to cooperate with the House impeachment inquiry. In turn, that could have saved him from the impeachment charge of obstruction of Congress. In retrospect his blanket stonewall may turn out to have been a purely political gesture - one that violated the Constitution, and deepened the case for impeachment.

To contact the author of this story: Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story: Sarah Green Carmichael at sgreencarmic@bloomberg.net

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Noah Feldman is a Bloomberg Opinion columnist. He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include "The Three Lives of James Madison: Genius, Partisan, President."

For more articles like this, please visit us at bloomberg.com/opinion

©2019 Bloomberg L.P.

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