Giuliani Subpoenaed In Impeachment Inquiry

Photo by SLT

Giuliani Subpoenaed In Impeachment Inquiry

The President’s attorney Rudy Giuliani is among the first to be served with a subpoena in connection with the newly-launched impeachment inquiry.

Doug Mataconis

October 1, 2019

Comments

As part of its investigation of the President’s phone call(s) with Ukrainian President Volodymyr Zelensky and the efforts to get him to reopen an investigation aimed at former Vice-President Joe Biden and his son, the House Intelligence Committee has issued subpoenas against Rudy Giuliani, the President’s personal lawyer who has played a key role in pressuring Ukrainian officials to act:

WASHINGTON — House Democrats on Monday subpoenaed President Trump’s private lawyer, Rudolph W. Giuliani, a key figure in their impeachment inquiry, even as the president vowed to learn the identity of the anonymous whistle-blower whose accusations of presidential impropriety toward Ukraine lie at the center of the scandal.
The Giuliani subpoena punctuated another day of confrontation in the capital, rife with accusations by both Democrats in Congress and an increasingly combative president.
“Our inquiry includes an investigation of credible allegations that you acted as an agent of the president in a scheme to advance his personal political interests by abusing the power of the office of the president,” three Democratic House chairmen wrote in a letter to Mr. Giuliani, who has served as Mr. Trump’s personal representative in Ukraine.
Democrats also requested documents and testimony from three of Mr. Giuliani’s associates who are said to be connected to an effort to pressure the Ukrainians into investigating Democratic rivals of Mr. Trump. They promised more subpoenas for other witnesses in the coming days.
(…)
For now, though, Democrats remain focused on Ukraine and what efforts were made there on behalf of Mr. Trump. In targeting Mr. Giuliani, Democrats are aiming directly at the man who appears to be at the center of the pressure campaign against the Ukrainian government.
Mr. Giuliani is mentioned frequently in the whistle-blower’s complaint and in recent weeks, he has admitted in interviews to trying to gather damaging information in Ukraine on Democrats, including Mr. Biden, that would help the president politically. He has also said the State Department was aware of some of his actions.
Mr. Giuliani has now been asked by House investigators for a range of communications and documents going back to January 2017. They include anything related to $391 million in American security aid that the Trump administration temporarily withheld from Ukraine and that Democrats have speculated may have been part of an effort to pressure the Ukrainian government.

Giuliani acknowledged receipt of the subpoena, but was not clear on whether or not he’d comply with it:

President Trump’s personal attorney, Rudy Giuliani, wouldn’t say Monday if he will comply with House Democrats’ subpoena related to the administration’s interactions with Ukraine, which are now the subject of an impeachment inquiry.
“I have received a subpoena signed only by Democrat Chairs who have prejudged this case,” Giuliani said in a statement on Twitter.
Giuliani is facing mounting scrutiny over accusations that he tried to influence Ukrainian officials to investigate former Vice President Joe Biden or Biden’s son as part of a broad effort to aid Trump’s 2020 re-election efforts.

He also commented about it on Fox News last night:

Just hours after being issued a subpoena from top congressional Democrats, Rudy Giuliani appeared on Fox News to defend his involvement with Ukraine, actions that have become central to an impeachment inquiry of President Donald Trump.
Trump’s personal attorney appeared on Sean Hannity’s program as part of his latest effort to distance himself from the political whirlwind surrounding Trump’s July 25 call with the Ukrainian president.
During the “Hannity” segment, Giuliani appeared to question the motives behind the subpoenas while defending his communications with officials in Ukraine about investigating former Vice President Joe Biden, a top Trump rival in the 2020 presidential campaign. He also reminded viewers that he was a professional lawyer as he pushed unfounded conspiracy theories targeting a spate of his boss’s political rivals.
“These people are such intellectual heavyweights, I don’t know if I could handle Schiff,” Giuliani said Monday, appearing to joke about Rep. Adam Schiff (D-Calif.), the chair of the House Intelligence Committee who recently sent him a subpoena.
Giuliani went on to push unfounded claims about the Biden family, Trump’s 2016 political rival Hillary Clinton and former President Barack Obama.

Here’s the video of the appearance:

The fact that Giuliani has been subpoenaed so soon in the investigation is not surprising, of course. For months now, the former New York Mayor and United States Attorney has traveled to and from Ukraine seeking to pressure Ukranian officials to provide more information about the business dealings of Hunter Biden and the role, if any, that former Vice-President Joe Biden had in the alleged, but unproven, corruption at the company where the younger Biden was a member of the Board of Directors. He has talked openly about these trips in his all-too-frequent appearances on various news channels, including both CNN and Fox News Channel, and has even taken to claiming recently that he was working at the behest of the State Department, something that Foggy Bottom has not verified.

In his initial response, Giuliani has not made clear whether he will comply with the subpoena, but in reality, he has no choice in the matter. He cannot claim Executive Privilege because he was not working for the government at the time of his trips to Ukraine. In fact, since he has said he was serving as a personal attorney for the President it would potentially be a conflict of interest for him to work for both the government and the President at the same time. With respect to his communications with Ukrainian officials, he cannot claim any kind of Attorney/Client privilege because they were not his client. Indeed, it’s unclear if he can even claim Attorney/Client Privilege with respect to conversations with the President since he has spoken publicly about the contents of his talks with the President and therefore arguably already waived that privilege. Finally, there does not appear to be any other privilege that he could claim here.

Copies of the Chairmen’s letter and the list of documents that accompanied the subpoenaed:

House Letter to Giuliani by Doug Mataconis on Scribd

Giuliani Schedule of Documents by Doug Mataconis on Scribd

19 responses to “Giuliani Subpoenaed In Impeachment Inquiry”

Janro

October 1, 2019 at 9:32 am

My question is what actions are available to the House Intelligence committee if Rudy deems their subpoena “illegitimate”?

1
gVOR08

October 1, 2019 at 9:37 am

He cannot claim Executive Privilege because he was not working for the government at the time of his trips to Ukraine.

He can claim anything he wants, valid or not, and then stonewall. Then we’ll see what Schiff et al can and will do about it.

My understanding was that for executive privilege to take effect the Prez had to declare some conversation or subject to be under executive privilege, that a witness can’t just show up and say something is privileged. Is that correct?

5
Sleeping Dog

October 1, 2019 at 9:47 am

It is doubtful this will happen, but it would be great if Dems would appoint one of the former prosecutors among their members to conduct the questioning at these hearings. We saw how effective Klobuchar and Harris were in their questioning of Kavanaugh. But alas they won’t and we’ll be subject to the typical dissembling, logrolling and self puffery that dominates Congressional hearings.

2
OzarkHillbilly

October 1, 2019 at 9:52 am

He cannot claim Executive Privilege because he was not working for the government at the time of his trips to Ukraine. In fact, since he has said he was serving as a personal attorney for the President it would potentially be a conflict of interest for him to work for both the government and the President at the same time. With respect to his communications with Ukrainian officials, he cannot claim any kind of Attorney/Client privilege because they were not his client. Indeed, it’s unclear if he can even claim Attorney/Client Privilege with respect to conversations with the President since he has spoken publicly about the contents of his talks with the President and therefore arguably already waived that privilege. Finally, there does not appear to be any other privilege that he could claim here.

Lawfare agrees with you Doug.

In addition to your above points, the author states:

But even positing for the sake of argument that there may be some communications on the Ukraine issues that might potentially be subject to the privilege, those residual “privileged” communications would have little protection against compelled congressional testimony.

First, it is Congress’s long-standing position that the attorney-client privilege does not afford protection against compelled congressional testimony. Although Congress may consider claims of attorney-client privilege at its discretion, it does not recognize the common law privilege as a bar to compelled disclosure. Rather, it has consistently taken the position that it can insist that privileged communications be disclosed. Consistent with this position, a committee that calls Giuliani for testimony can simply direct him to answer if he were to attempt to assert attorney-client privilege, and can hold him in contempt if he does not comply.

I did not know this and wonder about limits and what kind of case law there may be about this.

3
Doug Mataconis

October 1, 2019 at 9:56 am

@Sleeping Dog:

I am with you 100%. Very few of the members know how to craft a proper line of questioning to being with and most of them seem to be most concerned with getting on television.

They used counsel to conduct most of the questioning in Watergate and the Iran/Contra hearings. They should do that here too.

10
Doug Mataconis

October 1, 2019 at 10:25 am

@Janro:

They can hold him in contempt and, while they apparently no longer really have the authority to arrest and hold him in jail, they can impose fines on him that fine him for every day he refuses to comply.

They can also take him to court and seek to enforce a civil contempt against him.

7
Doug Mataconis

October 1, 2019 at 10:26 am

@OzarkHillbilly:

My gut tells me that a court would not agree with the idea that there is no attorney/client privilege when testifying before Congress.

1
Joe

October 1, 2019 at 12:53 pm

it would be great if Dems would appoint one of the former prosecutors among their members to conduct the questioning at these hearings.

100x this, Sleeping Dog for the very reasons stated by Doug Mataconis.

Whatever talent most of our Congress critters may have, direct and cross examination are rarely among them. Not only do most of them (and this is explicitly a both sides do it issue) end up grandstanding, there is no continuity in the line of questioning.

1
Joe

October 1, 2019 at 12:55 pm

@Doug Mataconis:
Whether a court would agree with the no atty/client privilege issue, most Americans would consider it overreaching and imperious for the House to assert a position against it and would agree with waiting months for “the courts” to rule on that.
OzarkHillbilly

October 1, 2019 at 1:36 pm

@Doug Mataconis: Do you know if it has ever been challenged in court? As powers go it sure seems kinda broad to me
de stijl

October 1, 2019 at 3:28 pm

@Sleeping Dog:

A work friend of mine had the biggest “celebrity crush” on Amy Klobuchar when she first ran for office. I didn’t see it, but I’m not her. It was pretty adorable to witness.

Ms. Klobuchar is the daughter of probably the greatest coach in the history of the Minnesota men’s basketball program.
Pylon

October 1, 2019 at 5:18 pm

@Doug Mataconis: I think a court would rule that privilege exists no matter what the setting. However, I also think a could should rule that the privilege only exists in response to specific questions about conversations and does not attach to conversations with anyone except the client or his surrogates.
HarvardLaw92

October 1, 2019 at 5:30 pm

@Pylon:

I’m going to have to agree. Any testimony proffered before a Congressional committee is admissible in subsequent legal actions, and while Congress may not have the power to impose criminal sentencing, we shouldn’t kid ourselves that impeachment will be the end of the line for most, if not all, of the players in this soap opera. Guiliani would effectively be testifying against his client in every subsequent legal action which might be taken against him concerning these matters were the privilege not allowed to stand.

I want to see this Keystone Mafia taken down – Watergate style, with lots of indictments – as much as the next guy does, but abrogating privilege in order to accomplish it is a bridge too far.

1
Kathy

October 1, 2019 at 6:17 pm

I understand the reason for attorney-client privilege, and I think it’s completely right and proper, even if the client is the most despicable person on Earth. However, does such privilege apply if the client and attorney are conspiring to commit a crime? How about if they conspire on an impeachable offense?
Gustopher

October 1, 2019 at 7:13 pm

If you wave your cell phone around on TV, claiming to have evidence, I don’t think you should be surprised to be subpoenaed.

The man is a terrible lawyer, advocate and person.

2
HarvardLaw92

October 1, 2019 at 7:42 pm

@Kathy:

No. You’re referring to the crime-fraud exception to privilege. The crime-fraud exception applies if the client’s statements to his/her attorney (privilege belongs to the client, not the attorney) demonstrate that the client was in the process of committing or intended to commit a crime or fraudulent act, and the client communicated with the lawyer with intent to further the crime or fraud, or to cover it up. That determination is left to a court to make. In that instance, Congress should have to petition a court to make the determination that the exception applies and act to force the testimony if it finds that it does.

That I’m fine with. A blanket assertion that privilege just doesn’t exist with regard to testimony in front of a Congressional committee is a whole different ball game.

1
Kathy

October 1, 2019 at 8:02 pm

@HarvardLaw92:

Ok. But isn’t that what Giuliani and Trump were doing? If using the power of the presidency to pressure a foreign government to meddle in the electoral process is an illegal act, or at least grounds for impeachment, then it doesn’t matter whether Giuliani is Trump’s lawyer, or merely his gopher.

Further, if Giuliani knew the allegations against Biden were bogus, which they seem to be, then he was also acting fraudulently.

I hope the House committee has counsel of their own they will consult on these matters.

1
Joe

October 1, 2019 at 9:02 pm

To your “merely his gopher” point, Kathy, there is probably a pertinent question here about what legal advice was Trump seeking from Giuliani? (Let that question sink in a minute, with regard to both parties to such a communication.) I agree with HarvardLaw92 that I would not like to see anyone overthink Giuliani, this human rabbit hole, the privilege technically applies only to what a client tells his/her lawyer as a predicate to seeking legal advice. It does not apply to the lawyer’s advice and it does not apply to other convos between members of the bar and their friends/associates or even clients in the furtherance of any purpose other than seeking legal advice. For reasons that should seem pretty obvious, though, courts err on the side of keeping communications out of the record.

The Dems need to set up serious cross examination questions – the kind that they don’t care how Giuliani responds or, if they anticipate anything, they anticipate this silly hat-stacking:

I’m his personal lawyer, except when I have my secret State credentials, that I can’t share cause that’s an executive privilege, except when I am invoking my rights as his personal lawyer, because it’s ok that Trump has his personal lawyer, whose loyalty should be to him alone, conducting the affairs of the US people

Build a cross around that expectation and you might succeed.

2
Steven

October 3, 2019 at 1:19 am

@Janro: If they wish, the House committee can order the Sergeant-at-Arms to arrest Giuliani force him to appear.