What exactly is Giuliani doing?

It’s easy to criticize Rudy Giuliani for how he has chosen, as a lawyer, to represent President Trump, if legal representation is what you call it. His public comments and statements are all over the map — admitting terribly incriminating things that the president previously denied; admitting things about the president’s conduct that he himself has previously denied; and making arguments that seem nonsensical, such as that the president cannot commit obstruction of justice by firing an FBI director because he’s the president. Truth isn’t truth, folks.

If you have known Giuliani as long as I, dating to the 1970s when he was a prosecutor on top of his game — back then, perhaps the most successful U.S. attorney in American history — you kind of wonder if any of this nonsense makes sense. Giuliani’s latest action on the talk show circuit makes me wonder: Why would he publicly admit what the president has been denying tirelessly for two years?  

{mosads}Giuliani publicly proclaimed that Trump didn’t stop working through a gigantic development in Russia until Nov. 8, 2016, when he was elected. Everyone who was watching dropped their jaws; this was a bombshell acknowledgement that the president had every reason to suck up to Russia’s Vladimir Putin. Trump had a big payday on the line, and the Russian leader was in the enviable position to scuttle or approve it, depending on whether a possible future president of the United States was willing to play ball.

It appears that most TV commentators haven’t figured it out; many see Giuliani as just losing his edge, and Trump loving the chaos. But Giuliani, by all accounts, is a very smart guy. So others conclude that it is Giuliani’s strategic intention to obfuscate, to muddy the waters.  And if that’s the end game, Giuliani has been successful. No one has figured out his intent for certain, though. Why would a lawyer say the things he says about his client — in fact, literally the most important client in the world?

This brings us to Jeffrey Toobin, the CNN legal analyst and New Yorker columnist. Speaking on Anderson Cooper’s evening show on CNN on Jan. 21, Toobin explained Giuliani in a way that makes sense: Since Day 1, Trump has boldly denied doing business in Russia, lest the public conclude that he had good reason indeed to flatter and side with Putin over his own intelligence community. But Trump now has given exacting answers to special counsel Robert Mueller. We don’t know what those answers are, but Giuliani certainly does, having appropriately helped Trump with them.

To be clear, it is not a crime to lie to the public (if that’s what happened), but it is assuredly a crime to lie to Mueller. If they believed that Mueller had proof that Trump was negotiating a Moscow business deal through Election Day 2016, there’s no chance Trump would have denied it in his answers.

So let’s assume that Trump’s statements to the public are, shall we say, different from those given to Mueller under oath. As Toobin says, “Giuliani has to sort of move Trump’s answer in line with what Trump said in the questionnaire, without seeming to. And it’s impossible. So he sounds ridiculous.”

Thus, Toobin offers, knowing that Mueller is likely to issue his report relatively soon, Giuliani, either on his own or with Trump’s blessing (and that’s a good question right there) feels the need to bring the public along to wherever this is going. That is, to prepare the public for what soon might be in the public record — i.e., that Trump indeed was planning to build a Russian hotel until the day he was elected, and only then abandoned it. All this would lead Trump’s supportive base to say, when Mueller’s report is made public, “Yeah, we knew about that; Giuliani said it.  What’s the big deal?” And if that supposition is true, it sounds like the agile Giuliani of his heyday.

Now, of course, the day after his bombshell, Giuliani came up with some nonsense to cloud what he had done, by saying that he had only been speaking “hypothetically” about Trump’s Russian business deal. I am not quite sure anyone knows what that means. But maybe — and this is my theory, not Toobin’s — Giuliani wanted to make his initial remarks seem defensible, given that he was widely beaten up in the press for having made a startling admission in the first place. Everyone’s got ego in the game, including Giuliani, and so perhaps he went back to the obfuscation strategy.   

We’re not going to know for a while, if ever, what really happened here. The president can’t be counted on to tell the truth, although none of his lawyers would knowingly let him lie to Mueller. But regarding Giuliani, it seems that Toobin’s is the best account of what motivated his shocking display. Remember, the most difficult client possible has chosen the most wily advocate possible.  Just think, a few years back, Giuliani himself could have become president.  

Joel Cohen, a former state and federal prosecutor, practices criminal defense law at Stroock & Stroock & Lavan LLP in New York. Cohen is an adjunct professor at Fordham Law School. He regularly lectures and writes on law, ethics and social policy for the New York Law Journal and other publications, and is the author of “Broken Scales: Reflections on Injustice.”