By Frank Bowman
Yesterday I discussed Rudolph Giuliani’s remarkable, and remarkably damaging, admissions to the New York Times that his client, Donald Trump, told him that the project to build a Trump Tower Moscow was a live possibility up through the November 16, 2016 election. Giuliani quoted Trump as saying of the Moscow project, “It was all going from the day I announced to the day I won.” As I noted, a lawyer’s public statements about what his client said are admissible against the client because the lawyer is, in that setting, the clients’s speaking agent. Federal Rule of Evidence 801(d)(2)(C).
It would appear that someone reminded Giuliani of this basic fact of evidence law, or perhaps just explained how damaging his new timeline is to Mr. Trump. Because today Giuliani effectively said, “Never mind.” He put out a statement saying:
Hypothetical, my foot. When a lawyer quotes his client speaking in the first person, that’s not hypothetical. It’s a quote, pure and simple. Of course, the lawyer can claim, as Giuliani basically does here, that he made up the quote without consulting his client. But neither the opposing party, nor the courts, nor Congress is obliged to accept that claim. They are instead entitled to take the lawyer’s original words at their face value and subpoena him to explore under oath what he represented as the client’s statement and circumstances of its making.
Of course, neither Mr. Mueller nor Congress may think Mr. Giuliani’s testimony worth the caterwauling brawl that a subpoena to him would produce. But at a minimum, this is yet another example of Giuliani’s extraordinary unfitness as an attorney.
There are really only three possibilities here:
(1) Giuliani talked to Trump in advance of the Times interview and Trump made the statement attributed to him, but did not give Giuliani permission to disclose a client confidence. In that case, Giuliani’s disclosure is a flagrant violation of professional ethics, specifically ABA Model Rule of Professional Conduct 1.6.
(2) Giuliani didn’t talk to Trump in advance of the Times interview or did, but Trump did not make the statement attributed to him. In that case Giuliani not only betrayed his client’s interests, but, by lying to the press, violated ABA Model Rules of Professional Conduct 4.1 and 8.4(c) prohibiting making false statements to third persons in connection with representation of a client and conduct involving dishonesty generally.
(3) Giuliani talked to Trump in advance of the Times interview, Trump made the statement attributed to him, and the two of them decided that revealing that statement would help get out ahead of facts that would come out later anyway. Afterwards, when the statement was reported as a potentially incriminating gaffe, Trump ordered Giuliani to cover by issuing a false denial to the press. That false denial would be a violation of ABA Model Rules of Professional Conduct 4.1 and 8.4(c).
When I was a young lawyer in the Department of Justice back in the early 1980s, Rudi Giuliani, then up in the S.D.N.Y., was known as a really sharp prosecutor — sharp-elbowed, to be sure, and transparently ambitious — but sharp. This creature fawning on Trump and spinning feeble falsehoods in his service is a pathetic remnant of that younger self. As a lawyer, I wouldn’t wish him on any client other than the one he’s now got.