Rudy Giuliani’s long history includes the Reagan Administration, being one of the more successful U.S. Attorneys, and a number of runs for offices. USA TODAY
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WASHINGTON – Rudolph Giuliani, by his own admission, reached out to a foreign government to unearth damaging information about his boss’ potential presidential rival – mixing roles of personal attorney and unofficial diplomat.
Depending on the time of day and who he’s talking to, Giuliani is an attorney advising President Donald Trump on legal matters. An unofficial envoy corresponding with foreign leaders. A cable news attack dog. A freelance investigator.
Now Giuliani finds himself in a difficult position. Two associates, who tried to help him get Ukrainian officials to investigate one of Trump’s political rivals, have been arrested on campaign finance charges. Prosecutors are examining Giuliani’s business dealings in that country. And Democrats have accused him of violating lobbying laws by acting as an unregistered agent for a foreign government.
Giuliani has said he’s an attorney for Trump as well as the two men now in federal custody. But experts say he can’t rely on attorney-client privilege to completely shield himself from answering questions from Congress or prosecutors.
In short, Giuliani can’t have it both ways, said Josh Rosenstein, a Washington, D.C., lawyer who advises clients on foreign lobbying laws.
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More: Federal investigators have been looking into Giuliani’s dealings in Ukraine since early 2019
“Either he is admitting that he was somehow an unofficial emissary of the U.S. government operating outside legal channels and directed by the president to engage in the sort of activity at the root of the impeachment inquiry,” Rosenstein said, “or he was acting as an unregistered agent of foreign principals and potentially assisting them in violating campaign finance laws.”
It’s too early to gauge what Giuliani’s legal exposure might be, experts say – if there is any at all. The opacity and fluidity of his relationship with the president has raised challenging questions about what Giuliani can and cannot reveal to congressional and criminal investigators.
But it’s clear that Giuliani is the latest person in Trump’s orbit to come under scrutiny by federal authorities. Michael Cohen, Trump’s former personal attorney, once said he would take a bullet for his boss. Now he is serving three years in prison.
Giuliani has cast any scrutiny as likely politically motivated and said he is not in any legal jeopardy. “Did nothing wrong,” he said Tuesday, hours after he defied a congressional subpoena for documents related to his dealings in Ukraine.
The president has come to Giuliani’s defense, tamping down speculations that his standing might be in peril.
Is Giuliani a ‘foreign agent’?: Trump-Ukraine scandal puts spotlight on Rudy Giuliani’s business ties.
Two Florida businessmen tied to President Donald Trump’s lawyer and the Ukraine investigation were charged Thursday with federal campaign finance violations. The charges relate to a $325,000 donation to a group supporting Trump’s reelection. (Oct. 10) AP, AP
Giuliani is central figure in inquiries by Congress, prosecutors
Giuliani seems to begin his days much like the president does: with a series of tweets in the wee hours of the morning, often in the same bombastic tone.
He castigates the media, attacks the impeachment inquiry, discredits the whistleblower whose allegations fueled it, pushes baseless claims about former Vice President Joe Biden and his son Hunter, and peddles the conspiracy theory that Ukraine – not Russia – interfered in the 2016 presidential election to help Democrats.
Giuliani, however, has been distinctly mum about the arrests last week of two of his associates, Igor Fruman and Lev Parnas, charged by federal prosecutors in Manhattan of funneling foreign money to American political campaigns. Two other men were charged as well.
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Prosecutors allege that Parnas and Fruman gave $5,400 to a U.S. congressman and pledged to raise another $20,000 as they sought his help in removing Marie Yovanovitch as U.S. ambassador to Ukraine.
That congressman is former U.S. Rep. Pete Sessions, R-Texas, who wrote a letter to U.S. Secretary of State Mike Pompeo urging Yovanovitch’s removal. After Parnas and Fruman were arrested, Sessions said he didn’t know about the alleged scheme and would donate their contributions to charity.
That investigation appears to have extended to Giuliani.
Kenneth McCallion, a New York lawyer who has represented several Ukrainian clients, told USA TODAY that federal authorities questioned him in early 2019 about Giuliani’s activities in Ukraine.
Giuliani said Tuesday he had “no such knowledge” of a federal inquiry involving him.
The New York Times has reported that prosecutors in the U.S. attorney’s office in the Southern District of New York – the office Giuliani led in the 1980s – are investigating whether he violated the Foreign Agents Registration Act, or FARA, in his dealings with Ukraine. The Times reported that the investigation into Giuliani is tied to the criminal case against Parnas and Fruman.
FARA requires Americans who work on behalf of foreign entities to register their activities with the Justice Department.
The focus of the investigation, according to the Times, is Giuliani’s efforts to “undermine” Yovanovitch, as part of a campaign to get Ukraine to help Trump politically.
A spokeswoman for the U.S. attorney’s office in the Southern District of New York said she cannot confirm whether Giuliani is under investigation, but the probe into Parnas and Fruman is ongoing.
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Federal prosecutors have ramped up their enforcement of FARA, a law meant to identify foreign actors attempting to influence U.S. policy.
Giuliani and his consulting firm have had clients from Latin America to eastern Europe. In an interview with The New York Times, a wealthy developer from the city of Kharkiv in Ukraine described Giuliani as a “lobbyist” who would burnish his city’s reputation in the U.S.
The Justice Department has shown a willingness to prosecute high-profile figures with ties to foreign countries. Among them are two men who once were in Trump’s inner circle: Michael Flynn, the former national security adviser who is awaiting sentencing, and Paul Manafort, the former campaign chairman who’s serving seven and a half years in prison.
Giuliani has rejected accusations that he has violated FARA, saying he was working on behalf of Trump, not a foreign entity.
But that claim, legal experts say, could put Giuliani in a bind.
Either he acknowledges advancing Ukrainian interests in his effort to discredit Yovanovitch, or he says he was working at Trump’s behest, which furthers the impeachment inquiry, said Matthew Sanderson, a Washington, D.C., lawyer who advises clients on FARA.
The arrests of Fruman and Parnas also could pose legal risks for Giuliani.
“The risk is all your communications and activities with these people will be exposed, probably, and investigated,” said Patrick Cotter, a former federal prosecutor in New York. “There’s a significant chance that people who know a lot about things they did with Mr. Giuliani may at some point in the future decide to be debriefed by the government.”
Any legal risk to Giuliani, though, remains hypothetical because so little is known about what evidence the investigators have found, Cotter said.
Giuliani has declined to discuss his dealings with Parnas and Fruman, saying the duo were his clients “on two separate things,” and much of their communication is privileged. He said he has to talk to them to figure out what’s confidential and what’s not.
Parnas and Fruman: Criminal case against Giuliani’s associates darkens cloud over Trump’s personal attorney, White House
The shifting nature of the Trump-Giuliani relationship
The nature of Giuliani’s work for the president is murky, experts say, in part because Giuliani himself has described it in different ways. This raises questions about whether he could assert attorney-client privilege during the impeachment inquiry and what limits there could be to that privilege.
For example, Giuliani has identified himself as the president’s lawyer, as he did in an interview with Fox News on Sept. 26. But he has also asserted he is not acting as Trump’s lawyer, as he did in an interview with The Atlantic the same day.
Other times, he’s appeared to act as an unofficial envoy, telling Fox News’ Sean Hannity that he spoke to the Ukrainians at the request of the State Department. “I wasn’t operating on my own,” he said.
In that case, conversations between him and Trump may not be protected, experts say. Communication between an attorney and his client is protected only if they pertain to the issue for which the attorney was hired.
Giuliani joined Trump’s legal team in 2018 amid former special counsel Robert Mueller’s probe into Russian interference in the 2016 election. With the Mueller investigation over, experts say it’s now unclear what legal work, if any, Giuliani is doing for Trump.
“The nature and exact extent of their relationship is in question,” said Paul Rosenzweig, a former prosecutor under independent counsel Kenneth Starr.
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Giuliani can’t avoid testifying in impeachment inquiry, experts say
Still, Rosenzweig said there is no way Giuliani can use attorney-client privilege to shield himself entirely from testifying in impeachment proceedings. “The only thing it will accomplish – and it probably will succeed to some extent – is to delay his testimony,” he said.
Attorney-client privilege is limited to confidential communications between a client and that person’s attorney. Lawyers can’t claim privilege to protect themselves from what they said while representing their clients. Only clients can decide if they want their dealings to be confidential.
That means the privilege does not apply to conversations or correspondence Giuliani had with foreign leaders or State Department officials in the course of his dealings in Ukraine, experts say.
“The conduct at issue – pushing arguments about potential corruption to foreign officials – does not appear to involve providing confidential legal advice,” John Bies, chief counsel at American Oversight, a nonprofit focused on government accountability, wrote on the Lawfare blog.
“It is not even clear that Giuliani’s conduct constitutes legal work performed in his capacity as Trump’s attorney, even if it were charitably viewed as something other than political campaign work,” he wrote.
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Bies, a former Justice Department official in the Obama administration,agreed there is no indication that Trump sought legal advice from Giuliani. Instead, Trump directed him “to undertake other (nonlegal) activities” on his behalf, Bies wrote.
“Directives of this sort, of course, would not be privileged,” he wrote.
Giuliani pushed back against the notion that attorney-client privilege wouldn’t apply, telling Fox News’ Laura Ingraham that if the work he did was to “obtain evidence in order to exonerate your client, it damn well does apply.”
There’s one other thing not protected by attorney-client privilege, Rosenzweig said: communication regarding future crimes, either by the client or the attorney.
If attorney-client protections fail, Giuliani cannot assert executive privilege. “Giuliani, so far as I know, holds no executive rank”in the Trump administration, Rosenzweig said.
Many of the recent headlines about Giuliani have drawn parallels with Cohen, who also held dual roles for Trump: attorney and, in his own words, fixer. Cohen pleaded guilty last year to several crimes, including arranging hush-money payments to women who claimed to have had affairs with Trump.
The roles the two men played show the president’s desire for someone who can both be a lawyer and a political henchman, Cotter said.
“Both attorneys … have engaged in actions that seem, to me, beyond the bounds and ethics of a lawyer,” Cotter said, “but they do them anyway.”
Contributing: Kevin McCoy, Kevin Johnson and David Jackson
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