Thursday, 24th October 2019
United States of America V Rudolph W Giuliani
by Barbera McQuade & Joyce Vance
While the Department of Justice’s Office of Legal Counsel has issued legal opinions that a sitting president cannot be indicted, there is no similar prohibition on indicting a president’s personal lawyer or other potential co-conspirators involved in committing a federal crime.
Based on facts already in the public record, we believe that Rudolph Giuliani could be indicted now for conspiracy to interfere with the fair administration of elections, conspiracy to commit bribery, and contempt of Congress.
Below is what an indictment of Giuliani might look like if it were drafted today.
It’s important to note that we are, to some degree, speculating here. We are considering charges that could be brought against Giuliani, using publicly available information.
Prosecutors obviously don’t do this.
They use only evidence that they are confident is correct and that they believe will be admissible in court.
And their sense of the evidence will be more nuanced that what is publicly available.
Nonetheless, with so much information now available, it is helpful to understand the seriousness of Giuliani’s conduct by seeing how it lines up to the crimes proscribed by the federal criminal code and whether there is evidence of criminality in what Ambassador Bill Taylor called the “irregular channel” for conducting foreign policy in Ukraine that involved Giuliani and others.
(Taylor, a former U.S. Ambassador to Ukraine, currently heads the U.S. embassy in Ukraine as Chief of Mission.)
The three counts we outline represent just the crimes that could be proven by the public record alone.
No doubt, if Giuliani is under investigation, prosecutors would want to probe additional potential crimes relating to his role, if any, in the recent campaign finance scheme charged against his associates Lev Parnas and Igor Fruman.
It is entirely possible, but not yet clear, that some or all of those counts could be superseded to add Giuliani as a defendant.
Prosecutors would also want to consider whether Giuliani was acting as an unregistered foreign agent in violation of the law when, as reported, he asked then-Secretary of State Rex Tillerson to intervene in the criminal prosecution of Reza Zarrab, a Turkey-based businessman, for money laundering and violation of U.S. sanctions on Iran.
Of course, a grand jury investigation related to the allegations we focus on here could uncover additional aggravating or mitigating facts that would inform potential charges against Giuliani.
Prosecutors would likely use grand jury subpoenas and court orders to obtain Giuliani’s bank records and income tax returns to identify his sources of income and movement of money.
Prosecutors would also interview individuals with knowledge of Giuliani’s activity, perhaps including some of the same former and current State Department officials who have been testifying before Congress.
In addition, prosecutors could offer cooperation deals to Parnas and Fruman, as well as to their less visible co-defendants David Correia and Andrey Kukushkin.
If they were to promise to plead guilty to their crimes and provide truthful and comprehensive information, prosecutors could offer to make that information known to the sentencing judge and recommend a reduction in their sentences.
Prosecutors would then work to corroborate the testimony of the cooperators, whose testimony is subject to skepticism because of the benefit they receive in exchange.
If their testimony can be supported by the testimony of other witnesses or documents, such as phone or bank records, then they could be used as important narrators to the case that is presented at trial against Giuliani.
Only after the entire investigation of Giuliani is complete would prosecutors decide whether to charge, and if so, which violations to include in an indictment.
We do so here without the benefit of facts known only to investigators and protected by grand jury secrecy rules.
There could be mitigating facts or defenses that are not publicly known that would cause us to decline to file charges.
And, as with any indictment, a defendant is presumed innocent until he is proven guilty at trial beyond a reasonable doubt.
When making charging decisions, prosecutors ask not only whether a crime has been committed, but whether a substantial federal interest would be advanced by filing charges.
We believe that the charges contained here represent a substantial federal interest.
An individual who conspires to inject foreign interference into a U.S. election attacks the very heart of democracy.
Our laws prohibit foreign influence in our elections because our founding fathers believed that only American citizens should decide who holds public office in the United States, and we recognize that foreign governments and their citizens act in their own interests, not ours.
Criminal cases are prosecuted for several reasons, including deterring illegal conduct, promoting respect for the rule of law, and protecting public safety. A prosecution here would advance all of these important goals.
A few observations on the charge for contempt of Congress deserve mention.
Giuliani’s refusal to comply with a subpoena for documents, which was issued by the three House Committees conducting the impeachment inquiry, is a criminal offense.
In a letter to the Committees, Giuliani stated that he would not comply with the subpoena because it is part of an “unconstitutional, baseless and illegitimate ‘impeachment inquiry.'”
Witnesses may challenge the scope of a subpoena as harassing, oppressive or overly broad by filing a motion to quash in court.
They may not simply ignore the subpoena and defy Congress’s authority as one of three co-equal branches of government.
The Constitution gives the power of impeachment to the House, and allows it to fashion its own rules for handling impeachment.
There is no requirement that the full House take a vote before it may begin an impeachment inquiry, and the House has the authority to investigate any matter on which it may act, including impeachment.
Giuliani’s conduct violates the federal criminal statute prohibiting witnesses from defying subpoenas issued by Congress or its committees.
A subpoenaed witness before Congress can no more ignore a subpoena than can a witness in a federal trial.
To permit individuals to selectively ignore such legal processes because they don’t want to comply, no matter who they are and who they represent, is a slippery slope to a lawless society.
However, before a U.S. Attorney may charge a witness with contempt of Congress, the contempt statute requires the completion of certain technical steps.
The Committees must report the failure of the witness to comply with the subpoena to the House and the Speaker of the House, who must then certify the statement of facts regarding the failure to comply to the U.S. Attorney for the District of Columbia.
Two final thoughts about the form of the mock indictment that follows.
If this were an actual indictment, many of the names would be replaced with generic identifiers, such as Candidate -1 or Company-A.
The Justice Department requires this practice to protect the reputations of individuals and entities that are not charged with any crimes.
A jury is told the identities of these individuals and entities at trial.
We have left the names in the indictment, however, for clarity for readers.
We refer to President Donald Trump as Individual-1, an unindicted co-conspirator.At paragraph 2, we describe Giuliani as an agent as well as an attorney for Individual-1 to make it clear that not all of their communications will be protected by the attorney-client privilege.
This privilege is limited to communications between a lawyer and client for the purposes of obtaining legal advice, and does not protect communications regarding an ongoing scheme to commit a crime or fraud.
Nor does it protect communications that have been divulged to others.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
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UNITED STATES OF AMERICA,
v.
RUDOLPH W. GIULIANI,
Defendant
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CRIMINAL NO.
(18 U.S.C. §§ 371, 201; 2 U.S.C. § 192)
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MOCK INDICTMENT
(A THOUGHT EXPERIMENT)
The Grand Jury for the District of Columbia charges:
COMMON ALLEGATIONS
Introduction
1. The United States of America, through its departments and agencies, regulates the activities of foreign individuals and entities in and affecting the United States in order to prevent, disclose, and counteract improper foreign influence on U.S. elections and on the U.S. political system. The Federal Election Commission is a federal agency that administers the Federal Election Campaign Act (“FECA”). Among other things, the FECA prohibits foreign nationals from making certain expenditures or financial disbursements for the purpose of influencing federal elections, and prohibits any person from soliciting, accepting or receiving a thing of value from a foreign national in connection with a federal, state or local election. 52 U.S.C. § 30121(a)(2).
2. At all times relevant to this Indictment, Defendant RUDOLPH W. GIULIANI was a private U.S. citizen licensed to practice law in the State of New York. At all times relevant to this indictment, GIUILIANI was serving as a private attorney and agent for Individual-1.
3. At all times relevant to this Indictment, Individual-1 was a public official, and a declared candidate for the 2020 U.S. presidential election.
Events in Ukraine
4. Ukraine is an independent foreign nation state that borders Russia and is a former Soviet Republic.
5. In or around March 2014, Russia invaded Ukraine and purported to annex the Crimean Peninsula, which Russia continued to occupy at all times relevant to this Indictment. The following month, Russian forces invaded the eastern Ukrainian regions of Donetsk and Luhansk and, with support of certain local forces, took control, starting a war that has continued at all times relevant to this Indictment and has killed more than 13,000 people. As a result of the Russian invasions, the United States imposed economic sanctions on Russia, the United Nations refused to recognize the new government in Crimea, and the inter-governmental political forum of industrialized nations known as the Group of 8 (“G-8”) expelled Russia and became known as the “G-7.”
6. In or around April 2014, Hunter Biden, the son of former Vice President Joe Biden, joined the board of Burisma Holdings, an oil and gas company in Ukraine. Joe Biden is a candidate for president in 2020. Burisma was founded in 2002 by Mykola Zlochevsky, who had served as a cabinet member in the administrations of pro-Russian presidents of Ukraine.
7. In or around August 2014, Ukrainian Prosecutor General Vitaly Yarema opened an investigation of Zlochevsky on suspicion of “unlawful enrichment.”
8. On or about October 14, 2014, the Ukrainian parliament passed a law establishing the National Anti-Corruption Bureau (“NABU”) to combat public corruption. NABU was created in part because of the recognized ineffectiveness and corruption of the Prosecutor General’s Office.
9. In or around February 2015, Viktor Shokin became the Prosecutor General of Ukraine. Throughout late 2015 and early 2016, U.S. Ambassador to Ukraine Geoffrey Pyatt, U.S. Assistant Secretary of State Victoria Nuland, and Vice President Biden were critical of Shokin for failing to pursue corruption investigations, explicitly including investigations of Zlochevsky.
10. In or around March 2016, Shokin was dismissed as Prosecutor General.
11. On or about May 12, 2016, Yuriy Lutsenko was appointed Prosecutor General.
12. In or around September 2016, a court in Kyiv, Ukraine, ordered the case against Zlochevsky closed because no evidence of wrongdoing had been presented.
13. On or about September 28, 2018, the U.S. Congress passed a spending bill for the Department of Defense that included $250 million in military aid under the Ukraine Security Assistance Initiative to help Ukraine contain Russian aggression in Crimea and other parts of the sovereign territory of Ukraine.
14. In or around March 2019, Lutsenko opened investigations into the 2016 presidential election and Burisma.
15. In or around April 2019, Hunter Biden resigned from the Board of Burisma.
16. On April 21, 2019, Volodomyr Zelenskyy was elected President of Ukraine.
17. On April 25, 2019, Joe Biden announced his candidacy for President.
18. On or about May 18, 2019, Ukraine Prosecutor General Lutsenko said that he had no evidence of wrongdoing by Hunter Biden or Joe Biden, and that neither of the Bidens nor Burisma were the focus of any investigations.
19. On or about May 20, 2019, U.S. Ambassador Marie Yovanovitch was publicly recalled from Ukraine and removed from her post.
20. On or about June 18, 2019, the Department of Defense announced the $250 million plan “for additional training, equipment, and advisory efforts to build the capacity of Ukraine’s armed forces.”
21. On or about August 28, 2019, it was reported that another $141 million was included in the military aid package for Ukraine, for a total of $391 million.
22. On or about September 12, 2019, the military aid funds were released to Ukraine.
COUNT ONE
(Conspiracy to Defraud the United States)
23. Paragraphs 1 through 22 of this Indictment are re-alleged and incorporated by reference as if fully set forth herein.
24. From in or around June 2017 to the present, in the District of Columbia and elsewhere, Defendant RUDOLPH W. GIULIANI and Individual-1, together and with others known and unknown to the Grand Jury, knowingly and intentionally conspired to defraud the United States by impairing, obstructing, and defeating the lawful functions of the Federal Election Commission in administering federal requirements that prohibit soliciting, accepting or receiving a thing of value from a foreign national in connection with a federal election.
Object of the Conspiracy
25. The conspiracy had as its object impairing, obstructing, and defeating the lawful governmental functions of the United States by dishonest means in order to interfere with the U.S. political and electoral process, including the 2020 presidential election.
Manner and Means of the Conspiracy
26. Starting in or around June 2017, defendant GIULIANI and his co-conspirators began to negotiate with representatives of the Government of Ukraine to obtain a public announcement that it was investigating (a) whether Ukrainians, US officials, and Democrats had conspired to interfere in the 2016 U.S. presidential election, and (b) whether Burisma had been involved in corruption in connection to the Bidens.
27. Defendant GIULIANI participated in meetings with representatives of the Government of Ukraine to advance these negotiations.
28. Defendant GIULIANI kept Indvidual-1 informed of his negotiations with representatives of the Government of Ukraine.
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