Rudy Giuliani, President Donald Trump’s personal lawyer, has indicated that he will invoke attorney-client privilege in response to the impeachment inquiry triggered by Trump’s July 25th phone conversation with Ukrainian President Volodymyr Zelensky. Reacting to his likely role as a witness, Giuliani recently told CNN, “Ultimately, if I were to say yes and [Trump] were to say no, I can’t testify,” recognizing that the attorney-client privilege belongs to the client and in this case, could only be waived by Trump. Giuliani has tweeted the same, referencing “attorney client and other privileges in response to the subpoena.”
Here’s the bad news for Giuliani and Trump: Attorney-client privilege, which preserves confidentiality between the two parties to ensure that legal advice can be given freely, doesn’t apply to everything. If there is evidence that a lawyer has been used to advance a crime or fraud, the privilege vanishes. And for Giuliani, that evidence is everywhere.
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It already appears that Giuliani’s attorney-client privilege defense will be tested. The House Permanent Select Committee on Intelligence has issued a subpoena to Giuliani compelling the preservation and production of information relating to his attempts to get Ukraine to investigate the president’s Democratic rival.
And Giuliani might well have to answer to it. We represent private sector and government whistleblowers. When we find out that lawyers representing the defendants in those cases are advancing a fraud themselves, we have used what is called the “crime-fraud exception” to obtain documents and testimony that the defendants’ attorneys initially claimed were protected by attorney-client privilege.
The Supreme Court has endorsed the application of the crime-fraud exception as an appropriate tool to prevent the misuse of the attorney-client privilege by fraudsters and criminals. Much like in the Godfather movie, where the Corleone family hides behind their attorney and bribery scheme mastermind Tom Hagen, it is not uncommon for defendants to use their relationship with their attorneys to obscure evidence of wrongdoing.
The crime-fraud exception is applied by the courts using a “prudent person” standard, when a judge decides that there is evidence for a prudent person to believe that the objective of the client’s communication with the attorney was to further a fraudulent scheme. (In this case, if Giuliani claims attorney-client privilege for any documents in response to a subpoena, the committee House Intelligence Committee could bring the issue before a federal judge to challenge the privilege, who would then have to determine whether the exception should apply.)
It won’t be difficult for Giuliani and Trump’s conduct to meet the standards for the crime-fraud exception. The potential crime is their efforts to solicit foreign support, in the form of dirt on political rival Joe Biden, to help Trump in the 2020 U.S. election. Federal election law bars foreign nationals from contributing anything of value “for the purpose of influencing any election for Federal office.” The effort to pressure Zelensky to provide information regarding Biden’s son’s involvement with the Ukrainian gas company Burisma is a solicitation of something valuable to Trump. Complicating matters less, both men have admitted to this solicitation, and it is present in the summary of the telephone call between Trump and Zelensky released last week. So, Giuliani’s likely refusal to testify based on privilege would be an effort to withhold evidence of his and Trump’s involvement in the commission of a potential fraud or crime—and the crime-fraud exemption should apply.
Election law might not be the only possible violation that should interest a judge in deciding whether attorney-client privilege can hold in this case. Giuliani may also have conducted U.S. foreign policy in violation of the Logan Act, which prohibits any private American citizen from engaging in unauthorized negotiations with foreign governments.
Giuliani has said his work in Ukraine was official business on behalf of the State Department—a claim that, if true, would conceivably put him on the right side of the Logan Act and possibly protect his activities under executive privilege, allowing the president to prevent documents and communications from disclosure if he can argue that doing so would compromise national security or executive branch deliberations.
However, Giuliani’s claims to be on official business have already been undercut by recent reporting. On September 25, the Washington Post reported that a senior administration official said Secretary of State Mike “Pompeo and the State Department never authorized what Giuliani was doing.” The Post went on to report that the “department’s August statement emphasized that Giuliani is a private citizen, was acting in his personal capacity and ‘does not speak on behalf of the U.S. government.’”
A federal judge using a prudent-person standard may have to decide what is more plausible: a reasonable conclusion that Trump’s personal attorney ran afoul of the Logan Act, or Giuliani’s work on Trump’s re-election campaign is official State Department business. The latter scenario is simply too far-fetched; no judge would believe it.
The evidence of Giuliani as adviser and co-conspirator to violate federal election laws and the Logan Act is substantial. The evidence demands application of the crime-fraud exception if Giuliani cites attorney-client privilege to avoid providing key evidence during the impeachment inquiry. As a once-esteemed member of the bar and federal prosecutor, Giuliani should avoid being a real-life Tom Hagen—a consigliere helping to break, not uphold, the law.