Former Donald Trump personal lawyer and election interferer Rudy Giuliani, who is already under federal investigation, is now facing new complications after being subpoenaed by the House Select Committee investigating the Jan 6 storming of the US Capitol.
The House Jan 6 Panel subpoenaed Giuliani and other lawyers who pushed the Trump agenda in court, including Sidney Powell, Jenna Ellis, and Boris Epshteyn, who admitted during an interview to have participated in a fake electors scheme to keep Trump in office.
Giuliani will claim “executive privilege and attorney-client privilege” as defense, according to his attorney, Robert Costello.
But the subpoena makes Giuliani’s legal problems even worse. Complying with the committee could mean undermining himself. If he doesn’t comply, he could be referred to the DOJ for criminal contempt of Congress.
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, according to former U.S. Attorney Barbara McQuade.
But pleading the Fifth in order to avoid self-incrimination also brings its own issues for the former New York Mayor. Giuliani has already had his New York law license temporarily suspended and making the plea would further complicate his professional standing.
John B. Harris, a partner in the professional responsibility group at Frankfurt Kurnit predicted that having no reasonable defense, Giuliani will claim that he “didn’t know and don’t know that this was an illegal thing.”
Also, 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 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. But it may not work.
“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,” Harris said, according to The Hill.
“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 added.
