Giuliani’s history raises legal questions as he takes on Trump defense
As a prominent surrogate for Donald Trump’s 2016 campaign, Rudy Giuliani was an active purveyor of pre-election leaks about the FBI probe into Hillary Clinton’s emails. As a member of Trump’s transition, he played a political role during a period central to Robert Mueller’s Russia investigation.
Now, Giuliani is taking on the high-profile job of helping lead Trump’s legal team combating that investigation — and other lawyers say his past activities could present conflicts, depending on how Mueller proceeds.
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“The big problem here is how likely is he to become a witness in the case, whether it be in a grand jury or otherwise,” said Loyola Law School professor Laurie Levenson, a former federal prosecutor. “You can’t be a witness and a lawyer in the same case. That’s the big sticking point.”
Giuliani was announced as Trump’s newest counsel this week amid an escalating federal investigation into longtime Trump Organization lawyer Michael Cohen, whose office and apartment were raided earlier this month. Giuliani, who’s known Mueller for decades, has said his job is to speed along the Russia probe, which encompasses questions of whether Trump tried to obstruct justice, including negotiations about Trump’s participation in an interview.
Trump lawyer Jay Sekulow says Giuliani’s past activities present no known obstacle to the former New York mayor joining Trump’s legal team.
“There are no conflicts at all regarding the representation of the president by Mayor Giuliani that would impact anything involving this case,” Sekulow told POLITICO on Friday.
While Giuliani didn’t hold a formal position in the Trump presidential campaign, he often opened for Trump at rallies in the final months of the race, a role which would have had him in contact with top campaign operatives. He’s acknowledged he was in touch with FBI officials during the 2016 campaign and said the bureau’s rank-and-file were “boiling” over about the Clinton email investigation. Shortly before the FBI director at the time, James Comey, reopened that investigation that October, Giuliani said the Trump campaign had “a couple of things up our sleeves that should turn things around.”
Giuliani’s former law firm, Bracewell & Giuliani, advised Trump’s data-mining contractor Cambridge Analytica on its obligations under U.S. campaign law.
After Trump’s victory, Giuliani was formally named as a vice chairman of Trump’s presidential transition team in late November 2016. However, his role in the transition is murky. Giuliani and Gov. Chris Christie (R-N.J.) were initially considered major players in the transition, but were shunted aside as it progressed. Giuliani has all but confirmed that he was hoping to be nominated as secretary of state, but Trump decided against it.
A lawyer for the Trump transition confirmed last December that Mueller’s prosecutors obtained access to the emails of at least 13 people working on the transition. There is no indication that Giuliani was among them, but the requests focused on personnel handling national security and policy issues, raising the possiblity that Giuliani’s communications with Trump advisers could already be in Mueller’s possession.
Another issue of potential conflict: Giuliani’s effort to broker a deal to resolve the case of Turkish-Iranian gold dealer Reza Zarrab, who was accused of violating U.S. law by helping Iran evade economic sanctions related to its nuclear program. Giuliani revealed in an affidavit filed last April that he met with Turkish President Recep Erdogan in an effort to resolve Zarrab’s case as part of “some agreement between the United States and Turkey that will promote the national security interests of the United States.”
NBC News reported last November that Mueller was investigating whether fired National Security Adviser Flynn was also involved in trying to end the U.S. prosecution of Zarrab. A few weeks after the NBC report, Flynn pleaded guilty to lying to investigators and agreed to cooperate with Mueller. In the plea deal, Flynn admitted to making false statements about his work related to Turkey.
“Giuliani cannot talk about Zarrab, a former client, or disclose information learned in representing him. It’s just off base,” said New York University law professor Stephen Gillers.
It’s unclear how actively Mueller is pursuing the Turkey-related issues at this point and what information Mueller’s office may have about them as a result of their interviews of Flynn. Flynn’s attorneys reportedly cut off communications with Trump’s lawyers just prior to entering into the plea deal. Zarrab ultimately pleaded guilty and agreed to cooperate. At a trial of a co-conspirator, Zarrab said he made as much as $150 million laundering cash for Iran.
Trump’s legal team has concluded that Giuliani is not a witness in the Russia case, but legal ethics experts say one complication for the Trump lawyers is they can’t be sure of the exact bounds of what Mueller is investigating.
“Rudy Giuliani is sufficiently connected to past historical events that both he and Mueller should be on guard against potential conflicts of interest,” said Paul Rosenzweig, a fellow at the R Street Institute and former senior counsel to Whitewater Independent Counsel Kenneth Starr. “None is apparent at all on the public factual record and I have a high degree of confidence either Giuliani or Mueller and his team will make them known should they actually come to fruition.”
Of course, Mueller’s office could warn Giuliani about any potential conflicts, but such warnings usually come during a court proceeding rather than during ordinary back-and-forth between attorneys and prosecutors.