During an interview with CNN’s Chris Cuomo on Wednesday night, Rudy Giuliani, President Donald Trump’s personal lawyer, seemed to acknowledge that there was collusion between one or more people involved in the Trump campaign and Russia — but just not involving his client, President Trump. Giuliani, who, along with Trump, has spent the last year telling the public that there has been no collusion, suddenly shifted gears and claimed he “never said there was no collusion between the campaign or between people in the campaign” only that there was “no collusion” on the part of “the president of the United States.”
Giuliani's statement is tantamount to an admission by the president’s attorney that there was, in fact, collusion. While he did qualify the comments later on Wednesday, it was only to say that he had no personal knowledge that anyone on the campaign had committed collusion. Let’s be clear, Giuliani’s conversation with Cuomo does not represent a subtle, nuanced shift in position. This is an admission by the president’s lawyer that when the president said “no collusion” and when he himself claimed there was no collusion by anyone, let alone “the top four or five people in the campaign,” they were not telling the truth.
Let’s be clear, Giuliani’s conversation with Cuomo does not represent a subtle, nuanced shift in position.
Of course, if the position had always been that maybe there was collusion, but Trump wasn’t involved, the response to the special counsel’s investigation would have been to fully cooperate. Any rational leader in this position would want to know who the bad actors were in his or her campaign. But that was not the response, because that has not been the position — until now.
Giuliani is technically Trump’s lawyer. But the strategy he has been running since he joined the team in April 2018 is a political one, not a legal one. None of what he does is meant to convince a judge or a jury. It is meant to confuse the issues, to inoculate people against shocking news before it arrives, and to retain the president’s good standing with his base. This is important because if the new Democratic House decides to file articles of impeachment against the president, Trump needs to have enough support among Republicans to ensure his majority in the Senate will hold. Giuliani has been moving the goal posts to accommodate the facts, always giving the president a retrenched argument.
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Indeed, Giuliani’s “defense strategy” for Trump has morphed over time, in response to evidence he and Trump’s other legal advisors could not refute, from 1) there were no contacts with Russians during the campaign, to 2) there were no election-related contacts with the Russians, to 3) there may have been contacts but it wasn’t collusion, to 4) collusion isn’t a crime, to 5) even if there was collusion and even if it was a crime, Trump himself didn’t participate or know anything about it.
And we still don’t know where it will end. It’s possible that they will have to make more concessions in response to future revelations. They may say the president might have heard about collusion, but didn't order it personally. Or, he might have heard about it briefly but he didn’t really know the details and didn’t care if it worked.
As a legal strategy, this is far from bulletproof. We have both successfully prosecuted cases where the kingpin in a crime network thought he could not be prosecuted because he didn’t personally touch the narcotics or other contraband his organization trafficked. But this thinking ignores how broad conspiracy law and accomplice liability are in our criminal justice system, helping to lay blame on those who are responsible for orchestrating violations of law. Someone who is not personally involved when a conspiratorial relationship is formed, but who sends or directs others to form it, helps to achieve its objectives, or participates in a cover up can still be charged.
In other words, whether or not Giuliani’s new theory on collusion succeeds in the political arena and keeps Trump’s base at his side, we believe it is deficient as a criminal legal strategy.
Giuliani made another questionable legal call in the interview with Cuomo, claiming that “the only crime you could commit here” is conspiracy with the Russians to hack the Democratic National Committee. This claim is rather astonishing, coming from a former U.S. attorney who is well aware of the full range of criminal provisions in the United States Code. Mueller has already identified other potential crimes that could be charged in his indictments of at least 33 individuals and 3 corporations.
His team has identified an alleged conspiracy to defraud the United States by interfering with an election (the Russian troll farm indictment), a failure to register as a foreign agent, and a host of false statements allegedly made to the government. As Giuliani knows, prosecutors are limited by the available evidence. But the evidence so far suggests a whole variety of possible allegations.
So, if Giuliani’s latest comments are a bad strategy, both factually and legally, why go there?
One of the only things that Giuliani has been consistently good at is getting out ahead of bad facts before they surface in the press or in pleadings.
Is this the latest in a series of big blunders made by Giuliani? We think not. One of the only things that Giuliani has been consistently good at is getting out ahead of bad facts before they surface in the press or in pleadings. When there is bad news coming, Giuliani blurts it out, the public gawks, and the shock is absorbed in advance. Giuliani, with his theatrics, socializes bad news so well that by the time it drops, most people are numb to it.
We saw this when the recordings of Cohen and Trump discussing payments to Stormy Daniels were released. Giuliani’s disclosure that work on the Trump Moscow project continued much later during the campaign than Trump allowed also got people used to that idea in advance of breaking news. His early disclosures mitigated the damage both of these stories did to his client and permitted him to bounce back in the polls.
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With Giuliani now giving the appearance of concern that proof of collusion is about to surface, it remains to be seen if he can once again satisfy Trump’s supporters that there is nothing to see here. What is Giuliani concerned about? Last night’s BuzzFeed report alleging Trump did not want Cohen to disclose the true timeline for Trump Moscow, for example? A recent mis-redaction by Paul Manfort’s lawyers that revealed the former Trump campaign manager shared polling data with his old employee, rumored GRU agent, and co-defendant Konstantin Kilimnik?
We don’t know for certain, but it could be this potential link between the campaign and the information Russia needed to throw its targeted online support to Trump. Giuliani could also sense a threat to his client in the special counsel’s recent filing of 400-plus redacted exhibits attached to its motion to declare Manafort in violation of his cooperation agreement, the 19 meetings with and generous sentencing recommendation for Michael Flynn, Rick Gates’ continued cooperation or Mueller’s extension of his grand jury investigation for another six month. It could even be indictments, soon to come.
In the face of mounting evidence that there was collusion between members of the campaign and Russians, Giuliani has doubled down on his strategy of distract, shock and confuse. But the position that he has staked out — that Trump was unaware of what others might have done — won’t get him very far with anyone who is paying attention.