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.

COMMENTS

More Related News

Crowds out, masks in: Debating in the age of the coronavirus
Crowds out, masks in: Debating in the age of the coronavirus
  • World
  • 2020-09-29 20:01:15Z

Crowds and pageantry are out. Presidential debates are typically some of the most exciting nights of the campaign season, drawing a crowd of thousands of staffers, media and guests. Instead of the usual auditorium setting, the debate is being hosted by the Cleveland Clinic and Case Western Reserve University in the 27,000-square-foot (2,500-square-meter) atrium of the Sheila and Eric Samson Pavilion on the clinic's Health Education Campus.

Defying EU ultimatum, British MPs approve post-Brexit bill
Defying EU ultimatum, British MPs approve post-Brexit bill
  • World
  • 2020-09-29 19:54:20Z

British lawmakers on Tuesday adopted a bill to regulate the UK's internal market after Brexit, defying a looming EU ultimatum as the two sides entered a final week of tense talks.

Judge not ready to throw out Michael Flynn case
Judge not ready to throw out Michael Flynn case
  • US
  • 2020-09-29 19:06:00Z

Former Trump national security adviser's lawyer accused the judge hearing the case of "abject bias" against Flynn.

Steady growth to record crash: How the pandemic recast Trump
Steady growth to record crash: How the pandemic recast Trump's economic record
  • US
  • 2020-09-29 18:46:53Z

U.S. President Donald Trump and Democratic rival Joe Biden hold the first of three debates Tuesday night ahead of the Nov. 3 election, and the economy is expected to be a key topic. At issue: What did Trump accomplish for the economy in three tumultuous years of trade wars and tax cuts? Can Biden convince voters he will be a better steward of the world's largest economy?

NY Times: Trump paid $750 in US income taxes in 2016, 2017
NY Times: Trump paid $750 in US income taxes in 2016, 2017

President Donald Trump paid just $750 in federal income taxes the year he ran for president and in his first year in the White House, according to a report Sunday in The New York Times. Trump, who has fiercely guarded his tax filings and is the only president in modern times not to make them public, paid no federal income taxes in 10 of the past 15 years. The details of the tax filings complicate Trump's description of himself as a shrewd and patriotic businessman, revealing instead a series of financial losses and income from abroad that could come into conflict with his responsibilities as president.

Leave a Comment

Your email address will not be published. Required fields are marked with *

Cancel reply

Comments

  • AHoffGeolla
    (2020-01-01 19:55:36Z)

    gentleman [url=http://cialisoni.com/#]cialis online pharmacy[/url] salad cialis online port

    REPLY
  • AHoffGeolla
    (2020-01-06 09:06:28Z)

    now http://cialisle.com/# - cialis 20mg earnings online cialis dominant

    REPLY
  • AHoffGeolla
    (2020-01-09 09:47:25Z)

    publisher http://cialisoni.com/# - generic cialis online environmental generic cialis online mission
    spot https://cialsagen.com/# - natural alternatives to viagra when will generic viagra be available in the usa generic tadalafil proof

    REPLY
  • xxnx
    (2020-01-14 02:57:07Z)

    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 xxnx 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 xxnx success, helps prove the case that Trump was abusing his office, using the power of the presidency to advance his personal goals.

    REPLY
  • ofrlihqpxbqt
    (2020-03-10 01:42:49Z)

    kmjgwm continued visgrs sildenafil 100mg generic mlmavw recommended site sildenafil citrate 50 mg Check This Out

    REPLY
  • ynvanlmbtans
    (2020-03-24 22:37:58Z)

    bjfvxp resources sildenafil citrate 50mg uses slidenafil gwxxlj inquiry generic viarga click here to read

    REPLY
  • uqocajallcfv
    (2020-04-19 06:57:45Z)

    nuxhui sildenafil citrate 100mg best price pfizer viagra about his peishp buy sildenafil citrate 100 mg online without prescription usasildenafil.com websites

    REPLY
  • idkqjzniwfuk
    (2020-06-10 08:55:27Z)

    Viagra viagra www viagra com viagra viagra canadian pharmacies cheap viagra online canada pharmacy
    viagra

    viagra purchase viagra canada buy viagra canada viagra online canada pharmacy best non prescription viagra
    viagra
    viagra like viagra viagra buy viagra without a prescription generic viagra
    Viagra online canadian viagra

    REPLY
  • unyfhspfgsbd
    (2020-06-11 08:11:39Z)

    canada drug pharmacy online viagra buy cialis canada canadian pharcharmy online viagra viagra canada drugs viagra
    medications.com Viagra canadian pharcharmy's www.northwestpharmacy.com viagra discount meds
    canadian drugs viagra viagra canada cialis from mexican pharmacy online prescription drugs viagra cialis by mail us pharmacy
    discount cialis canada canada sildenafil generic pharmacy viagra online like viagra mail order cialis in canada

    REPLY
  • pa criminal case searchqg
    (2020-08-21 01:31:48Z)

    kqwfzsscrwvz kendall county case search
    criminal case search md montana court case search el paso criminal case search la superior court case search

    REPLY

Top News: Economy