Rudy Giuliani has had a lot of titles before his name but the one he wants to avoid is defendant. He is the former Associate Attorney General of the United States (the number three at the Justice Department), U.S. Attorney for the Southern District of New York, Mayor of New York City, and personal lawyer to Donald Trump.
But now, following reports that he met with Special Counsel Jack Smith’s team in their criminal investigation of the Jan 6 uprising, Giuliani finds himself the focus of speculation whether he will “flip” on Donald Trump.
Much of that speculation is hype over the reporting by The New York Times and CNN that Giuliani met with prosecutors under conditions known as a “proffer.” But proffers do not always lead to a cooperation agreement. Rather they are a method by which white-collar defense lawyers seek to probe what the prosecutor’s interest is in the client and to see if they can assuage any suspicions by the prosecution that the client has committed crimes.
An old adage in white-collar defense is the distinction between these categories of crimes versus violent crimes. In violent crimes it’s a “whodunit.” In white-collar crimes, it’s often the question of whether anything was criminally done at all.
From the reporting, it appears that interest and questioning of Giuliani focused on a wide variety of topics all related to efforts to overturn the 2020 election. Prosecutors asked him about the role of John Eastman—the “mastermind” who theorized how Trump could overturn the election through Vice President Mike Pence rejecting the electoral college vote, Sidney Powell—who had made baseless claims about foreign entities’ mass hacking of voting machines, and the meeting at the Willard Hotel days before the Jan. 6 attack on the Capitol.
Giuliani was at the center of all of this, so if any of those people and actions may be subject to criminal charges, then his own exposure must be alarming to him as well as to his legal team.
But it is too early and we don’t know enough to say whether DOJ is looking to charge him. The proffer conditions can vary from case to case and fall into two categories. The first type is where the client does not speak or even show up and it is merely the defense counsel who meet with agents and prosecutors to explain what their client would say in the hope that it will lessen interest in charging the client.
In such a preliminary meeting, the defense counsel will want to know if their client is a target, subject, or witness. The hope is that they are a witness. The fear is that they are a target or a subject. The anxiety is that none of those terms are binding on the government. It can all slide south for the client depending on the evidence developed in the case.
The second type of proffer—and the one it sounds like Giuliani did—is where the actual client is offered up to speak to the prosecutors. But in order to give the client some type of protection the conditions of the interview will be that nothing the client says will be directly used against them unless they lie.
This is commonly called the “Queen for a Day” letter because it is usually formalized for the client’s protection via a letter from the prosecutors. But being “Queen for a Day” offers limited protections since evidence developed from “independent” sources could still be used against the client and his statements could validate and even lead to other evidence against them. The real protection offered by this proffer condition for the client is that prosecutors know that if they use the statements to charge the “Queen” then they will likely face litigation over whether the evidence used to charge was truly independent or not.
“It is likely that the very first question from Giuliani’s legal team was whether he was a target and just as likely that DOJ would be coy about answering that question.”
It is likely that the very first question from Giuliani’s legal team was whether he was a target and just as likely that DOJ would be coy about answering that question. The reason for the coyness is that telling the lawyers that Giuliani is a target likely would trigger the lawyers to demand some form of immunity in return for Giuliani being questioned, which is a road prosecutors do not like to go down unless absolutely necessary.
In this dance of questioning, Giuliani and his team would seek to appear as believable and cooperative as possible while hoping to convince DOJ that Giuliani did nothing wrong. Somewhere along the way, both sides have to cross the Rubicon of whether Giuliani wants to assert attorney-client privilege protections in his interviews.
Normally, that would be a strong shield for Giuliani, but one of Trump’s lawyers—Evan Corcoran—has already been compelled to give notes and testimony under the doctrine of the crime-fraud exception to attorney-client privilege. That court result might make Giuliani shy away from leaning too heavily on privilege as his only shield.
“Cooperators present prosecutions with tough challenges involving attacks on the cooperator’s own culpability, motives, and character.”
As a former number 3 at DOJ and former U.S. Attorney, Giuliani likely knows all too well that fighting to shield information only whets prosecutors’ appetites for pursuit, and that it is much more effective to assuage that appetite through measured cooperation spun to put Giuliani in the best light possible.
Giuliani is an absolutely necessary building block for DOJ’s investigation. Remember that he was subpoenaed some six months ago for documents and is only now being interviewed—thorough investigations take time and this one is exceedingly complex. This means we should all manage the hype about whether Giuliani will “flip.” Too often “flipping”—meaning that a person will cooperate with the government in exchange for immunity or a lesser conviction—is treated in public perception as a magic bullet in any case. But cooperators present prosecutions with tough challenges involving attacks on the cooperator’s own culpability, motives, and character.
There are no magic bullets in the universe of Trump investigations and cases. Like any other criminal case, these cases must be built on a methodically laid foundation of evidence from documents and witnesses. The years that have passed since the January 6, 2021 attack and efforts by Trump to overturn the 2020 election remind us of just how late was DOJ to the starting line. Whether they were too late remains to be seen.
Shan Wu is a former federal prosecutor who served as counsel to Attorney General Janet Reno.
