Trump won't be prosecuted for Ukraine call about Biden. But Rudy Giuliani can.

While Attorney General William Barr has made it clear that he will not prosecute Trump due to current DOJ policy, Giuliani enjoys no such privilege or immunity.
Image: President-elect Donald Trump and Rudy Giuliani shake hands following a meeting at Trump International Golf Club in Bedminster, N.J., on Nov. 20, 2016.
President-elect Donald Trump and Rudy Giuliani shake hands following a meeting at Trump International Golf Club in Bedminster, N.J., on Nov. 20, 2016.Drew Angerer / Getty Images file
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By Mimi Rocah, former assistant U.S. attorney

UPDATE (September 24, 2019, 5:30 pm. E.T.): This piece has been updated with Rep. Nancy Pelosi's announcement that Democrats are opening a formal impeachment inquiry into President Donald Trump.

With respect to Ukraine, most of the focus, rightfully, rests on President Donald Trump’s conduct, but the conduct of his attorney Rudolph Giuliani also deserves serious attention. Based on the facts already in the public arena, the Department of Justice has more than enough basis to open a federal criminal investigation into the former New York mayor.

Let’s start with the basic facts as reported by multiple news organizations and as essentially confirmed by Trump in public statements: In one conversation between Trump and Ukranian President Volodymyr Zelensky on July 25, Trump made “about eight” demands for Zelensky to work with Giuliani to investigate Democratic rival Joe Biden and his son Hunter. On Tuesday, Trump confirmed reports that his administration froze nearly $400 million in aid to Ukraine, but said that move was unrelated to any requests for information from the Ukrainians.

Based on the facts already in the public arena, the Department of Justice has more than enough basis to open a federal criminal investigation into the former New York mayor.

It is not yet clear if Trump explicitly mentioned the hundreds of millions of dollars in military aid previously promised to Ukraine during the July 25 call — but whether he did or did not is legally irrelevant. It does seem clear, however, that the Trump-Zelensky conversations are part of a broader campaign by Trump to pressure Ukraine into doing election opposition research, using previously promised military aid package as leverage.

And the demands that Ukraine investigate Joe Biden included repeated, personal exhortations by Trump to work with Giuliani. In addition, Giuliani has by his own admission personally pushed Ukrainian officials to conduct such an “investigation.” And Giuliani can’t say definitively that Trump did not threaten Ukraine.

There are several different federal laws that might apply to Giuliani’s conduct here. Most obviously, Giuliani appears to be in violation of the Logan Act, which makes it a crime for private citizens who attempt to intervene without authorization in disputes or controversies between the United States and foreign governments. He is Trump’s personal lawyer, not a government official, and so his involvement is clearly a complicating, detrimental element for U.S. diplomatic interests. Ukraine officials need to know who is speaking for the president and, as Ukrainian journalist Serhiy Leshchenko wrote this week, who is trying to “drag” Ukraine into a U.S. presidential election.

More significant, Giuliani and Trump’s reported actions raise the real specter of a federal criminal bribery and extortion conspiracy. While Attorney General William Barr has made it clear that he will not prosecute Trump due to current DOJ policy, Giuliani enjoys no such privilege or immunity. And, while the factual record is not fully developed, federal investigations are opened every day against people with far less known and incriminating information. Any objective prosecutor, I believe, would agree with that.

As explained by my colleague, former U.S. Attorney Barbara McQuade, in the Daily Beast, it is a crime under the federal bribery statute for a public official to demand anything of value in exchange for performing an official act. Additionally, the Hobbs Act defines extortion as "obtaining property from another, with his consent, under color of official right." McQuade continues:

The essence of both crimes is a demand by a public official to obtain something for himself to which he is not entitled in exchange for performing an official act of his office. Here, if the reporting is correct, Trump may be similarly committing bribery and extortion by using the power of his office to demand a thing of value, dirt on Biden, in exchange for an official act, the provision of military aid. This is precisely the kind of old-fashioned corruption scheme that the bribery and extortion statutes were designed to punish.

And, if Giuliani assisted or agreed to assist this scheme — even if he did not fully adopt the entire plan — may have aided and abetted or conspired to commit those same crimes. In addition, the Foreign Corrupt Practices Act makes it illegal for a U.S. citizen to corruptly offer “anything of value” to a foreign official to retain business or influence an official decision.

Giuliani defended himself by claiming that “no money was mentioned, no quid pro quo,” in the call between Trump and the Ukranian president. Let’s see if that’s true. But more important, Giuliani — a former mob prosecutor — surely knows that most crimes don’t happen so explicitly. In 16 years of listening to criminals on wiretaps, I rarely heard anyone say, “If you don’t give me X, I will do Y.” That’s not how mafia bosses work. They make a “request” and others follow up with the demand. The law is very clear that a quid pro quo need not be explicit for a crime to have taken place. It can be inferred from the facts as a whole.

Even if there was no quid pro quo (no withholding of military aid, in this case), Giuliani was clearly acting on behalf of Trump’s campaign in seeking to persuade Ukraine to “investigate” the Bidens. Federal law prohibits a foreign national from directly or indirectly making a “contribution or donation of money or other thing of value” in connection with a U.S. election, and prohibits a person from soliciting, accepting or receiving such a contribution or donation from a foreign national. Damaging information about a political opponent could fit within this definition, meaning Trump and Giuliani solicited an illegal “thing of value” from a foreign national in connection with an election.

This isn’t to say Giuliani should or shouldn’t be charged with a crime — and I am not calling for any certain outcome. This is to say that, based on my experience as a federal prosecutor, I believe the facts support the kind of investigation that would have been undertaken by former U.S. attorneys in the Department of Justice under Republican and Democratic presidents.

And my real concern is that the attorney general will try to prevent such an investigation or, perhaps worse, that current prosecutors will not feel that they can even initiate such an investigation because of Giuliani’s relationship with the president.

These are not things I say lightly or indeed ever imagined I would have to say about the top law enforcement official in America. But, here we are.

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