In a column for the conservative Bulwark, attorney Philip Rotner suggested that the Democrats pull out all the stops and insist that former New York City Mayor Rudy Giuliani testify in the impeachment trial of Donald Trump -- even if he pleads the Fifth Amendment which could be equally damaging to the president.
As Rotner sees it, testimony by the man who has been serving as Trump's attorney and Ukraine conspiracy sleuth would likely sway some Republican senators who would be hard-pressed to explain away what would likely be explosive testimony.
"If there is one piece of evidence that might bring around a handful of congressional Republicans to the pro-impeachment side it would be direct, first-hand testimony that Trump personally and unambiguously ordered that the release of military aid to Ukraine be conditioned upon a public announcement that Ukraine would investigate his 2020 political rival, Joe Biden," the attorney began. "The evidence we have so far would be sufficient in any court of law, whether the standard was preponderance of the evidence, clear and convincing evidence, or beyond a reasonable doubt."
"It’s obvious that there’s one person who could easily supply the link that Republicans claim is missing: Rudy Giuliani," he continued. "Guiliani was Trump’s personal lawyer, acting on his behalf, communicating with him frequently, and managing the execution of the quid pro quo. And yet, the Democratic pro-impeachment forces have been oddly hesitant to demand Giuliani’s testimony."
According to Rotner, Giuliani -- should he be called to appear -- would likely try to invoke attorney-client privilege but that may not hold up and could in fact be even more damaging to the president.
"While the attorney-client privilege might shield lawyers from testifying about certain conversations with their clients, it doesn’t shield them from testifying, full-stop. Neither the attorney-client privilege nor anything else would shield Giuliani from testifying about his conversations with Gordon Sondland, John Bolton, Mick Mulvaney, or any other U.S. or Ukrainian government officials. Or any of the actions he took to implement the quid pro quo," the attorney explained. "And it’s likely that even Giuliani’s conversations with his client, Trump, would not be fully protected either."
"The attorney-client privilege doesn’t apply to every conversation between an attorney and a client," he continued. "It applies only to conversations conducted in confidence (meaning outside the presence of others and with an expectation of confidentiality), and in furtherance of receiving or providing legal advice (meaning that routine conversations transmitting factual information from a non-privileged source are not privileged)."
According to Rotner, all legal niceties aside, it would be worth the effort to put the spotlight on Giuliani because his answers and demeanor would likely damage Trump.
"At a minimum, getting Giuliani to testify would force him to assert the privilege. That alone could be of value. He would be required to testify, on the record and under oath, that his actions in Ukraine were undertaken in the course of legal representation on Trump’s personal behalf—because otherwise, he would have no basis for claiming the privilege in the first place. That testimony, in and of itself, would tie Trump to Giuliani’s actions," he wrote. "Imagine what it would suggest if one the House managers asked Giuliani, Did President Trump instruct you to inform Ukraine that U.S. aid wouldn’t be released unless and until it announced publicly that it was investigating the Bidens?
And then Giuliani replied, I refuse to answer on the grounds of the attorney-client privilege."
"That would be . . . not good for Trump," he added.
"It’s hard to overstate how crucial Giuliani is to the entire Ukraine scandal," Rotner continued. "Think about it: if Trump’s demands for investigations by Ukraine were in furtherance of U.S. government policy, why weren’t they carried out by the secretary of State, the attorney general, or some other government official? Why were they carried out by a lawyer hired by Trump to defend him personally?"
"Congressional Democrats should insist—loudly and often—that Giuliani testify," he concluded. "Their case demands it and the public deserves it."
You can read more here.