Jan. 6 panel’s subpoena furthers complications for Rudy Giuliani, DOJ
The Jan. 6 select committee’s subpoena to former President Trump’s legal team is likely to queue up a lengthy legal battle while escalating complications for Rudy Giuliani, who is already under federal investigation.
The committee has subpoenaed Giuliani and other lawyers who pushed the Trump agenda in court, including Jenna Ellis, Sidney Powell and Boris Epshteyn, an attorney who served as a strategic adviser for the campaign.
The subpoenas go after the Trump legal team’s strategy for denying President Biden the White House and could also open the door to a fight over whether they can skirt the committee by claiming attorney-client privilege.
It’s a tactic already floated by Giuliani’s attorney Robert Costello.
“Chairman Bennie Thompson, who is not a lawyer, should realize that Giuliani has a claim of executive privilege and a claim of attorney-client privilege,” he told CNN.
The committee has asked the group about its efforts to convince state lawmakers to reject the election results and the circulation of a memo outlining a case for then-Vice President Mike Pence to buck his duty to certify the election. The subpoenas also note the baseless claims of election fraud that have since earned rebuke from bar associations and courts.
Subpoenaing Giuliani, whose office and home were raided by the FBI last summer, is a risky move both for the former mayor and the committee. It could complicate the investigation, as past inquiries have scored testimony by securing immunity for the witness. And for Giuliani, complying with the committee could mean undermining himself.
Pleading the Fifth in order to avoid self-incrimination brings its own issues. Giuliani has already had his New York law license temporarily suspended and making the plea would further complicate his professional standing.
Experts say claiming attorney-client privilege may be the best path forward for Giuliani and others since it could carry the fewest occupational consequences while potentially pushing the matter to the courts and draining the committee’s time.
“Stripping aside all of the other issues and all of the concerns that the committee has, the idea that there was actually legal advice that was being rendered here or that these discussions could have been privileged, I think that that is colorable depending on a lot of other facts,” said John B. Harris, a partner in the professional responsibility group at Frankfurt Kurnit.
“A memo about what the Vice President’s rights, duties and obligations are with respect to certification — that sounds to me like a kind of classic legal research and that you could absolutely give it to your client and not necessarily believe that you were committing a crime or fraud. It’s a legal issue that somebody like the president could have been entitled to know,” Harris said.
Giuliani, however, may struggle to make the case that his conversations with Trump were privileged.
Bruce Green, a law professor at Fordham University, said the conversations need to be relatively private to be considered privileged. If legal advice was given in a large meeting attended by those not central to the matter, there wouldn’t be grounds to keep them from the committee.
Another major exception would be any legal advice given in the process of committing or with the intention of committing a crime or fraudulent act.
“I think there are people who think it would be a fraud to pressure election officials to certify somebody as the winner when they’re the loser,” he said. “So, if they’re trying to influence state election officials to say that Trump was the winner in the swing states where he actually lost to Biden, there are people that think that would be fraud or conspiracy to commit fraud.”
The Jan. 6 committee, which did not respond to a request for comment, would be likely to fight any blanket attorney-client privilege claims, as it has with other would-be witnesses.
Giuliani previously made attorney-client privilege claims following the FBI raid, with a judge in the case appointing a so-called special master to review his communications to determine what might be privileged and what might not.
A similar “in camera” review could happen with the latest subpoenas to Giuliani, Ellis and Powell, assuming either they sue to block the subpoena or face censure by the committee and then full House for failing to comply with a subpoena and the Justice Department prosecutes the case.
But such a move would take time, which could be of value for a “beat the clock” strategy tied to GOP hopes of winning back the House majority in November.
Giuliani could have some incentive to cooperate. Harris noted lawyers are allowed to release communications that might demonstrate that they were not a party to any illegal activity. Giuliani also may see the value in cooperating with the committee if he can secure immunity.
Experts warned that could lead to a repeat of the Oliver North situation, however, in which the National Security Council lieutenant colonel’s 1987 testimony before Congress was used to help overturn his conviction for his role in the Iran-Contra affair.
Former U.S. Attorney Barbara McQuade said Giuliani may have a well-grounded fear of prosecution for his role in the events of Jan. 6 and the larger “Stop the Steal” effort, something that might leave him again leaning toward taking the Fifth.
There are reasons that the Department of Justice (DOJ) might not want to offer Giuliani or others immunity, too.
Marjorie Peerce, a managing partner at the New York office of Ballard Spahr, said she thinks the DOJ would not want the panel to offer immunity given the risk of complicating its own legal strategy as anyone working on the case would need to be “hermetically sealed” from any details that might arise during the interview.
With immunity an unlikely option, Giuliani again might view an attorney-client privilege claim as his best option.
“You never know what sort of sympathetic ear you’re going to get if you’re challenging a subpoena so you probably spin the wheel and see what happens,” Harris said, adding that he could get an amenable judge.
“So I assume that’s going to be how they approach this — that ‘We didn’t know and we don’t know that this was an illegal thing. We thought that this was a perfectly appropriate use of our legal skills.’ And how that flies eventually, who knows, but it’s going to take a long time to resolve,” he said.
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