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Impeachable Offenses?

~ Examining the Case for Removal of the 45th President of the United States

Impeachable Offenses?

Tag Archives: Giuliani

Giuliani backtracks … too late

21 Monday Jan 2019

Posted by impeachableoffenses in Uncategorized

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Giuliani, rudolph giuliani, Trump Tower Moscow

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.

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Giuliani helps build the case that his client may be a Russian asset (and maybe helps restore Buzzfeed’s credibility)

21 Monday Jan 2019

Posted by impeachableoffenses in Uncategorized

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attorney-client privilege, buzzfeed, Giuliani, Michael Cohen, Robert Mueller, rudolph giuliani, Trump Tower Moscow, waiver of attorney-client privilege

By Frank Bowman

Somewhat lost in the coverage of Mr. Trump’s apparently unsuccessful effort to end the government shutdown standoff comes the quite remarkable story of Rudy Giuliani’s interview with the New York Times in which Giuliani:

  • admitted that conversations about building a Trump Tower in Moscow continued throughout the 2016 campaign up until the November election;
  • quoted Mr. Trump as saying of the Moscow project, “It was all going from the day I announced to the day I won”;
  • claimed that the whole project was run by Cohen with little input by Trump, quoting Trump as saying, “We talked about it, I knew [Cohen] was running with it, I honestly didn’t pay much attention to it”;
  • “acknowledged that Mr. Trump might have talked to Mr. Cohen before his congressional testimony [in which Cohen falsely claimed that the Trump Tower Moscow negotiations ended in January 2016], but … said his client had never instructed Mr. Cohen to lie.”

From a lawyer’s perspective, perhaps the most amazing part of this interview is the fact that Giuliani just created evidence against his own client, admissible in any court and certainly in the more procedurally relaxed setting of a congressional investigative hearing or an impeachment proceeding.

Non-lawyers probably think that whatever Giuliani says to the press presents no risk to Trump because of the attorney-client privilege. But that’s quite wrong. Attorney-client privilege covers only statements made by the client to the lawyer in confidence for the purpose of obtaining legal advice. What a client said to his lawyer is privileged as long as both lawyer and client keep it secret. Once either of them discloses a client statement, it is no longer privileged. Indeed, even unauthorized or inadvertent lawyer disclosures of client statements sometimes waive the privilege.

Certainly once the lawyer assumes the role of public spokesman for the client and makes public assertions of fact in that role, the lawyer becomes a “speaking agent” of the client and the lawyer’s statements are admissible against the client. Federal Rules of Evidence 801(d)(2)C). This basic rule doesn’t change where the fact publicly asserted by the lawyer is the content of what his client said in an otherwise-private conversation.

Hence, Giuliani just became a witness to the duration of the Trump Tower Moscow project and to Trump’s knowledge of that duration. He may also have become a witness to what Trump told him about any conversation with Michael Cohen before Cohen’s congressional testimony.

Why it could matter

It has been reported that, right up to election night, Trump did not expect (or maybe even want) to win the election. He admits that he was keeping his options open. As he put it, “There was a good chance that I wouldn’t have won [the election], in which case I would have gone back into the business. And why should I lose lots of opportunities?” But both during and after the campaign he repeatedly insisted that he had no deals in Russia. In January 2017, after his election, he explicitly stated that, “I have no dealings with Russia, I have no deals in Russia, I have no deals that could happen in Russia because we stayed away.”

Of course, as we now know, he and the Trump Organization had not “stayed away” from Russia. Far from it. Nonetheless, once the existence of Moscow tower negotiations became public, Trump minimized his interest and the duration of negotiations. As recently as two months ago, in a statement on the South Lawn of the White House, he claimed that they did not continue past “the early part of ’16.” Placing that end date on the project allowed him to dismiss any connection between his financial self-interest in 2016 and his otherwise odd chummy attitude to Putin and promotion of pro-Russian policy throughout the election season. 

Michael Cohen tried to back Trump’s story by telling Congress that the Trump Tower Moscow project ended in January 2016. Cohen has admitted this was a lie and that the project was pursued  actively through at least June 2016. But Giuliani has now established that the project continued still longer. More importantly, he has provided independent proof that Trump knew about its duration and repeatedly lied about it. Proof of Trump’s knowledge no longer depends on Michael Cohen’s unsupported assertions or even on inferences from whatever Trump Organization documents Mueller may have. Instead, it can be established by Giuliani’s testimony about what Trump himself admitted.

Proof of the duration of the Moscow project and Trump’s knowledge of it matters because it solidifies at least one incentive for Trump’s peculiar affinity for Russia during the campaign. More importantly, it proves beyond any shadow of a doubt that, after the election, the Kremlin had leverage on Trump.

Once Trump won, the Kremlin knew that Trump had been actively trying to do a deal in Moscow, while simultaneously and repeatedly publicly denying it. That gave Putin leverage. He could expose the new president as a liar who had been trying to curry financial favor with a traditional enemy state. There are multiple other Russian pressure points that remain unproven – mostly the possibility of ongoing financial relations with Putin-backed Russian oligarchs – but here we have a concrete indisputable fact, corroborated by both Trump’s former and current attorney.

And this concrete indisputable fact lends credence to the still-astonishing possibility that the President of the United States is compromised by a hostile foreign power.

Giuliani’s Times interview does one other thing — it may help rehabilitate, at least somewhat, the BuzzFeed report that Trump told Cohen to lie before Congress. Giuliani denies that Trump told Cohen to lie, but concedes that Trump “might have” talked to Cohen before Cohen’s congressional testimony. That statement has two effects.

From a common sense perspective, Giuliani’s “might have” is as good as an admission that such a conversation occurred. Admission of its occurrence would help Cohen’s credibility immensely if he were to claim that Trump made damaging statements. After all, the mere occurrence of such a conversation — the President having a private talk with a potential witness against him –would be breathtakingly inappropriate. One obvious purpose of such a conversation would be to influence the upcoming testimony. Although speculation is dangerous, Giuliani’s de facto admission suggests that Robert Mueller’s repudiation of BuzzFeed‘s reporting may stem from the wording of the Buzzfeed story, rather than its essence. For example, Cohen may be prepared to say, not that Trump unequivocally told him to lie, but that Trump hinted at how he would prefer the testimony to run. Likewise, Mueller may have objected to the language of the BuzzFeed story insofar as it over-promised, suggesting that the special prosecutor had documentary corroboration of an express presidential direction to commit perjury.

From a legal point of view, Giuliani’s choice to discuss with the press what his client said about the occurrence of a Trump-Cohen conversation and its contents may constitute a waiver of attorney-client privilege on that topic. It certainly provides a legitimate basis upon which a grand jury or a congressional committee could subpoena Mr. Giuliani and seek to compel his testimony about what the President told him about any pre-testimony talk with Cohen.

Things grow curiouser and curiouser.

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Frank O. Bowman, III


Floyd R. Gibson Missouri Endowed Professor of Law
University of Missouri School of Law

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