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Rudy Giuliani has only two safe options in Georgia

News that Giuliani is planning to use attorney-client privilege as a shield against the election investigation in Georgia is head-scratching. It's arrogant to think that's an effective strategy.

News that Rudy Giuliani is now a “target” of the Fulton County, Georgia, criminal investigation into possible election interference came from his attorney on Monday. It is the latest accelerant in a fiery fall from grace. While it is not uncommon for politicians to become targets of criminal investigations, it is certainly rarer for former top law enforcement officials, in part because they typically understand the criminal justice system better than most. 

His role in Donald Trump’s orbit over the years has led many to question whether Giuliani (a lawyer who also served in Ronald Reagan’s Justice Department) has forgotten how the system works. And hearing that he will probably use attorney-client privilege as a shield against the investigation in Georgia is the latest head-scratching instance. According to The New York Times, Giuliani’s lawyer mentioned the possibility in an interview. It is arrogant and misguided of Giuliani to think that invoking attorney-client privilege is an effective strategy. 

His role in Donald Trump’s orbit over the years has led many to question whether Giuliani (a lawyer who also served in Ronald Reagan’s Justice Department) has forgotten how the system works.

At this point, he has only two safe options. He can invoke the Fifth Amendment repeatedly, or he can negotiate a cooperation deal with not only Fani Willis, the Fulton County district attorney, but also the Justice Department. Such broad deals are often referred to as “global” cooperation and plea bargains, and it is the only way Giuliani may be able to put an end to what otherwise will be an ever-growing line of investigations and potential charges. 

Any other strategy on his part is just wishful thinking. Attorney General Merrick Garland and other prosecutors may struggle over whether to take the unprecedented step of criminally charging a former president, but they will have little compunction about charging, prosecuting and seeking jail time for an allegedly crooked lawyer.

As it has time and time again, Richard Nixon’s presidency gives us the most recent historical context to understand what sort of corruption was happening while Trump was in office. The Watergate experiences of then-Attorney General John Mitchell and former White House counsel John Dean exemplify what can happen when lawyers are seduced away from their ethical standards by the attraction of currying favor with the powerful. 

Mitchell, the only attorney general to be imprisoned, was convicted of conspiracy, obstruction of justice and lying under oath and sentenced to 2½ to eight years in prison for his part in the Watergate break-in and cover-up. After his release from prison, he was disbarred. Dean, who ultimately acted in good conscience and became a Watergate whistleblower, for which he is deservingly lionized today, was also convicted. He pleaded guilty to a single count of obstruction of justice for his part in Watergate and served time. His guilty plea, part of his cooperation agreement with the Justice Department, resulted in a lesser sentence of 127 days of incarceration, but it did not spare him from sharing Mitchell’s fate of being disbarred and losing his license to practice law. 

Giuliani has not yet been charged or convicted, but if he is, he could end up sharing the fate of Mitchell and Dean, as his license to practice law has already been suspended in New York and Washington, D.C., for his role in trying to overturn the 2020 presidential election.  

But Giuliani’s predicament is worse than Mitchell’s or Dean’s. He faces multiple potential criminal investigations, from state prosecutions like the one in Georgia to federal ones possibly arising from his involvement in the Jan. 6 insurrection attempt and the alleged scheme to use slates of fake electors. And unlike Mitchell and Dean, Giuliani cannot even claim to have been acting in an official government capacity, which might have let him argue that he believed he was acting in his official capacity, adding additional buffer from any election interference efforts, insurrection or other potential crimes committed by Trump.

Instead, Giuliani is stuck arguing that all his actions were just part of his fervent advocacy for his personal client — Trump. While it is a foundation of legal ethics that lawyers are to represent their clients zealously, being a lawyer confers no grant of immunity from prosecution for crimes the lawyer commits. Furthermore, when a lawyer knows that a client seeks the lawyer’s aid in committing crimes, the crime-fraud exception to attorney-client privilege applies, and the lawyer is free to reveal confidential but incriminating information.   

The fact that Giuliani was not in government but was rather part of a group of nongovernment people conspiring to help overturn the results of a valid election highlights the potential illegal nature of Trump’s pressuring others to lie about nonexistent election fraud. It also implicitly endangers Giuliani’s client (Trump), because it is impossible to imagine that Giuliani was acting as an advocate for Trump without any direction from him. That is, of course, precisely what the Fulton County district attorney wants to learn from Giuliani: What did Trump tell you to do?

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At the moment, Giuliani appears committed to refusing to give up any confidential communications he had with Trump about the alleged Georgia election interference. According to The New York Times, his lawyer asserted that anyone who thinks Giuliani will testify about communications with Trump is “delusional.” But bold talk by a defendant at the start of a case often becomes a whimper as the reality of criminal prosecution sets in.  

Rudy Giuliani is not yet a criminal defendant — and perhaps never will be — but the official notification that he is a target of a criminal investigation is the first step toward becoming one. As a former U.S. attorney and former associate attorney general, Giuliani should know this, but if he has somehow forgotten, this would be the right time for him to remember the skills and knowledge he once possessed in past glory days.