Giuliani's History Raises Legal Questions for Trump Defense

By Josh Gerstein and Darren Samuelsohn, Politico

21 April 18

 

The former New York City mayor and federal prosecutor may be a witness in the Russia probe, and has other entanglements that could complicate his new role.

s 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.

"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.

A spokesman for Mueller's office declined to say whether Giuliani has been in contact with Mueller's team or whether Trump's decision to retain Giuliani was vetted with the special counsel.

Giuliani took leave from New York law firm Greenberg Traurig this week in order to join Trump's team. The firm said only that Giuliani was taking "a leave of absence, effective today, for an unspecified period of time to handle matters unrelated to the law firm or its clients."

A spokeswoman for the firm declined to respond to questions about why Giuliani could not represent Trump through the firm and whether there was a conflict of interest with the firm's existing clients.

However, in a court filing last year, Greenberg Traurig said that its client roster includes Deutsche Bank, a major lender to Trump, the Trump Organization and the real estate firm owned by the family of Trump's son-in-law, Jared Kushner. Last December, Bloomberg reported that Mueller subpoenaed Deutsche Bank for records about lending to Trump. The news outlet later corrected the story to say that the subpoena was from Mueller, but did not target Trump.

"GT is the attorney of record for Deutsche Bank in a variety of litigation, corporate and compliance matters, in the United States and abroad," Greenberg attorney Laurence Levy wrote.

The potential for Giuliani to advise Trump on a possible interview with Mueller could add even more complexity if it appears the former mayor and U.S. attorney was involved in any of the factual matters the special counsel is investigating.

Republican lawmakers have repeatedly complained that former FBI Director James Comey allowed Clinton lawyers Cheryl Mills and Heather Samuelson to sit in on Clinton's July 2016 interview with the FBI even though they played roles in the sifting of Clinton's messages, some of which officials determined were classified.

While many conflicts between clients can be waived, that's sometimes easier said than done.

Just last month, Trump's team announced that former U.S. Attorney Joseph DiGenova and his law partner and wife Victoria Toensing were joining the group of lawyers advising Trump in the Mueller probe. A few days later, Trump aides reversed course and said the pair would not be joining due to conflicts involving other witnesses they represented in the investigation.

As the episode unfolded, Trump insisted that high-quality lawyers were beating a path to his door.

"Many lawyers and top law firms want to represent me in the Russia case...don’t believe the Fake News narrative that it is hard to find a lawyer who wants to take this on. Fame & fortune will NEVER be turned down by a lawyer, though some are conflicted," Trump wrote.

But Trump's turn to Giuliani despite his potentially problematic campaign, transition and Turkey-related work is a sign that there are few lawyers with name recognition willing to come on board.

"I know the president said everyone will want to represent me. I don't know that's accurate...There's just not a huge pool of people who have the experience, the interest or the desire," Levenson said.

But, Levenson noted, Giuliani may be a hire made just for the moment. He was announced alongside the husband-and-wife law partners Jane Serene Raskin and Marty Raskin — and Trump has remained in close touch with his former lawyer Marc Kasowitz, among other advisers.

"The same reason Trump wants [Giuliani] — his knowledge and his access — make it likely he's going to have some type of conflict," Levenson said. "It may be a short-term representation."