Prominent prosecutors use public evidence to draft a mock indictment of Rudy Giuliani
Former Mayor Rudy Giuliani of New York speaking at a forum titled “Countering Iran’s Nuclear Terrorist Threats” hosted by the Iranian American Community of Arizona in Phoenix, Arizona. (Gage Skidmore/Flickr)

Former federal prosecutors Barbara McQuade and Joyce Vance co-authored an explanation of what they anticipated a trial against President Donald Trump's lawyer, Rudy Giuliani, may face.

Writing for Just Security Thursday, the prosecutors wrote out a "mock indictment" of the former New York City mayor as well as a preface describing why they chose some of the charges they did.

They began by explaining that the lawyer of the president doesn't enjoy the same protection from indictment that the president does.

"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," they wrote.

They also admitted that they were doing "some degree" of speculation that charges could be brought using only the publicly available information. Typically, prosecutors know all of the details and evidence because they've been working with investigators.

"Their sense of the evidence will be more nuanced than what is publicly available," they explained.

The prosecutors noted that Giuliani's conduct is serious particularly when combined with the criminal code and testimony provided by Ambassador Bill Taylor. In his opening statement this week, Taylor called out Giuliani for being an "irregular channel" for doing foreign policy in Ukraine.

"The three counts we outline represent just the crimes that could be proven by the public record alone," they wrote. "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 It is entirely possible, but not yet clear, that some or all of those counts could be superseded to add Giuliani as a defendant."

They also questioned whether Giuliani is operating as a foreign agent without being registered as one.

"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," they explained. "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."

They noted that Giuliani's associates, Lev Parnas and Igor Fruman, could also make a deal with a prosecutor to reveal further evidence of Giuliani's crimes. They would then move to work with the two men to wade through bank records and other documents that could be pertinent to the investigation.

"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," they explained. "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."

They said that prosecutors decide whether a crime has been committed, but they also examine whether it would be in the federal interest to bring charges.

"We believe that the charges contained here represent a substantial federal interest," they wrote. "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."

Giuliani also runs the risk of scoring a contempt of Congress charge, if Congressional committees report a failure to comply with subpoenas.

In their mock indictment, Vance and McQuade said that the names they included would likely be replaced by things like "Candidate-1" or "Company-A." Meanwhile, they describe Giuliani both as an "agent" as well as an "attorney" for "Individual-1," to make it clear that not all communication will be protected by the attorney-client privilege.

You can read the mock indictment at Just Security.