He wants Sessions to investigate … the U.S. Attorney’s office? Whose leader, like Sessions himself, was appointed by Trump? Remember, it’s not Mueller who’s leading the charge against Cohen. He handed the case off to the Southern District of New York because whatever it is they’re looking at Cohen for isn’t within his Russiagate purview as special counsel.
There’s an old saying among litigators. When the facts are on your side, pound the facts; when the law is on your side, pound the law; and when neither is on your side, pound the table. Maybe Giuliani has spent the last few weeks becoming acquainted with the facts and law on Trump’s side annnnnnnd has concluded that it’s table-pounding time. That would explain his surprise admission last night about Trump reimbursing Michael Cohen for the Stormy Daniels payment. If the facts aren’t on their side, better to admit it now and move past it asap. It would also explain his “stormtroopers” comment about the FBI, which is rough stuff for any politician but shocking coming from a former U.S. Attorney who was (is?) in line to be Attorney General himself. Giuliani might believe that things look sufficiently dire for Trump now that there’s really no legalistic way out of the mess. The way out is political: Double down on the “witch hunt” rhetoric about Mueller, the “stormtrooper”/”deep state” insinuations about the FBI, and the attacks on Sessions and Rosenstein for running a lawless Justice Department. The more successful he and Trump are in convincing righties that this is some sort of slow-motion coup, the harder it’ll be for Republicans in the House and Senate to impeach and remove him.
Pounding the table won’t win a case in court but Trump probably won’t end up in court regardless of what Mueller has on him. The field of battle is in Congress, with his presidency potentially on the line. Rudy’s going to spend most of his time as a public commentator in the weeks and months ahead, I’d guess, alternately making damaging factual stipulations to get them out of the way and throwing roundhouses at the most useful political scapegoats.
“I am waiting for the Attorney General to step in, in his role as defender of justice, and put these people under investigation,” Giuliani said, reacting to an NBC News report that phones belonging to Cohen, President Trump’s longtime personal attorney, had been tapped by investigators…
Giuliani, who joined President Trump’s personal legal team about two weeks ago, predicted that Trump would share his anger at the reported wiretapping, though he said he had not yet spoken to the president about it.
When he does so, Giuliani predicted, “He is going to say to me, ‘Isn’t there an attorney-client privilege?’ And I am going to tell him, ‘No, the Department of Justice seems to want to trample all over the Constitution of the United States.’”
“[T]hey don’t even notify us?” he said of the Cohen wiretap that wasn’t. “I mean, he’s only the president of the United States.” One thing you definitely want to do as a prosecutor when you’re wiretapping someone is let his friend and boss know that you’re doing it.
To answer his question, though, yeah, of course a prosecutor can wiretap a lawyer. Not easily; as noted here, he needs special approval up the chain and probably very, very special approval when it’s the president’s lawyer. But an alternative system is unworkable for reasons you, I, and the average four-year-old can discern. If prosecutors flatly weren’t allowed to wiretap lawyers, even when there’s probable cause to believe the target is engaged in a crime or fraud, then becoming a lawyer would give you legal immunity to use the phone lines to further your own criminal schemes. (If you think lawyers are shady now, try them under that system.) Attorney-client privilege isn’t absolute, and can’t be. And it’s not in the Constitution either. Rudy threw that into his speech because, again, he’s playing to the grandstands, making political arguments more so than legal ones. “They’re tearing up the Constitution!” is exactly the sort of thing you’d say when you’re pounding the table.
Even his Jared and Ivanka comment to Hannity last night was a political one dressed up as a legal one. Rationally, as a lawyer, you should worry about Kushner being subpoenaed at least as much as you’d worry about Ivanka. Kushner’s been in the middle of everything since the campaign days and, unlike Ivanka, he already has Russiagate exposure: He was in Don Jr’s meeting with the Russian lawyer, he allegedly tried to arrange a secret back-channel with the Kremlin away from the prying ears of U.S. intelligence, etc. Rudy, though, took the position that it’d be worse for Mueller to target Ivanka than Kushner, reasoning that men are “disposable” but the King’s favorite daughter is a “fine woman.” That’s not something you’d say as a lawyer, it’s something you’d say as a political figure who’s looking to feed Trump fans’ outrage. The implication seems to be that subpoenaing Ivanka would amount to some sort of judicial molestation.
I think this is a political argument at base too more so than a legal one. Rudy told the Daily Beast, wisely as it turned out, that he was skeptical of the NBC report about Cohen being wiretapped — although in that case, why was he suddenly demanding that Sessions start investigating the U.S. Attorney?
“Us lawyers have talked about it, we don’t believe it’s true,” Giuliani told The Daily Beast. “We think it’s going to turn out to be untrue because it would be totally illegal. You can’t wiretap a lawyer, you certainly can’t wiretap his client who’s not involved in the investigation. No one has suggested that Trump was involved in that investigation. So they’re going to wiretap the lawyer, his client, and his client the president of the United States? I don’t think so, not if they want to stay out of jail. Disclosing a wiretap is a federal felony. I never took ‘em home when I was a U.S. attorney.”…
“Anybody who says that I’m exaggerating when I say that this is an out-of-control investigation and they’re acting like storm troopers––give me a break, baby! They prove it every day.”
Pound that table, buddy. Again: It’s not illegal to wiretap a lawyer and a former U.S. Attorney like Rudy absolutely knows it. He’s lying through his teeth about it to rile up Trump fans to lead them to the conclusion that the DOJ is breaking laws left and right as part of the deep-state witch-hunt double-secret-probation silent coup to oust Trump. Even his doubts about whether there really was a wiretap or not, although vindicated, appeared disingenuous. He seemed to be saying it to stoke the idea that wiretapping Cohen would be so horrifically outrageous that it couldn’t possibly be true. Why, it’d be like breaking into the National Archives and wiping yourself with the original Constitution, or like digging up James Madison and playing kickball with his empty skull! Where is Jeff Sessions to crack down on this outrageously outrageous outrageousness — which, by the way, if there were a wiretap, would have necessarily required a judge’s authorization, not just the DOJ’s.
Whatever he and Trump are up to strategically, it’s very closely held. According to WaPo, even White House counsel Don McGahn and new Russiagate lawyer Emmet Flood had no idea that Trump reimbursed Cohen for the Stormy payoff until Rudy just riffed out the information last night on “Hannity.” Sarah Huckabee Sanders says she didn’t know either. Imagine facing the press every day and having no idea if what you’ve been telling them for the past three months might blow up in your face while you’re asleep the night before. Exit quotation via Rudy: “Look at all of the bad faith we’re seeing here.”
Reporter: When did you know that President Trump repaid Michael Cohen the $130,000?
Press Sec. Sanders: “The first awareness I had was during the interview last night.” pic.twitter.com/5ZxpSrCNPc
— NBC Nightly News with Lester Holt (@NBCNightlyNews) May 3, 2018