CAMBRIDGE, Mass. (Tribune News Service) — If President Donald Trump wants to avoid federal criminal investigation once he’s out of office, here’s my free advice: Don’t pardon Rudy Giuliani.
The New York Times reports that the two men have discussed whether the president should pardon his personal lawyer. But Trump owes Giuliani money for representing him, and pardoning someone to whom you owe money could easily be construed as a criminal act.
Under federal law, it would be bribery to offer an official government act, like a pardon, in exchange for a debt, like the money Trump owes to Giuliani. An investigation would have to ensue. And as President Bill Clinton learned after pardoning financier Marc Rich, an investigation into a questionable pardon can be serious business.
In response to the report, Giuliani’s spokesperson said that as a lawyer, Giuliani could not comment on any discussions he had with his client, the president. Attorney/client privilege is a real thing, yet it would not shield either Giuliani or Trump from criminal investigation if there were reason to think a criminal exchange had occurred.
When a lawyer and a client together conspire to commit a criminal act, the attorney/client privilege evaporates. Evidence of their communication for criminal purposes could be subpoenaed and introduced in court.
If no third party could testify and there are no tapes of their conversation, then the only direct evidence of a criminal bargain would be testimony by one of the two men. In this scenario, Trump could choose to remain silent and exercise his right against self-incrimination under the Fifth Amendment.
However, Giuliani could not plead the Fifth — not if he had already been given a blanket pardon for any criminal act he might have committed during the Trump administration.
The right against self-incrimination only applies when a person’s testimony might put them in criminal jeopardy. A person with a blanket pardon covering some period of time doesn’t face criminal jeopardy for conduct occurring during that period of time. Giuliani could therefore in theory be compelled to testify against Trump, on pain of going to jail for contempt of court if he refused.
The only escape hatch from this trap would be if Giuliani’s pardon were deemed to be invalid because it was obtained as part of a criminal act. No one knows for sure whether a criminally obtained pardon is constitutionally valid because the issue hasn’t been litigated. But obviously, neither Trump nor Giuliani would want to go down this path.
If he really felt he had to pardon Giuliani, Trump might ostentatiously pay Giuliani lots of money first, to prove the pardon wasn’t given in exchange for forgiving the lawyer’s perhaps $20,000 per day legal fees. But it would be tough for Trump to prove that he had definitively paid for all of the work Giuliani had done.
The upshot is that just about the best way Trump could bring a criminal investigation on himself would be by pardoning Giuliani on his way out of the White House.
Consider the pardon of Marc Rich on Bill Clinton’s last day in office. That led to George W. Bush’s attorney general, John Ashcroft, appointing a special prosecutor to investigate the pardon process.
That prosecutor was — wait for it — James Comey. You just can’t make these things up.
Most likely, President-elect Joe Biden’s Department of Justice would prefer not to investigate Trump on criminal charges. Biden’s attorney general, whoever it is, will be eager to re-establish the norm of non-political criminal investigation and prosecution. Going after Trump would make it all but impossible to restore that norm.
But a Giuliani pardon would look so corrupt that it would put huge pressure on the Department of Justice to bring in a special prosecutor to look into it. And because Trump would no longer be president, he would not be able to fire or intimidate that prosecutor.
Comey’s investigation ultimately did not recommend criminal charges against Clinton, although congressional Republicans did pursue several investigations of their own. Whether or not Trump is afraid of Congress, he should be afraid of the appointment of a federal prosecutor.
The final irony here is that if Giuliani were any kind of a responsible lawyer, he could not possibly ask Trump for a pardon — because doing so would be a disaster for his client. And if Trump brought it up, Giuliani should ethically tell him, as his lawyer, that any such pardon would jeopardize Trump. If Giuliani doesn’t tell the president not to pardon him, some other lawyer should.
Noah Feldman is a Bloomberg Opinion columnist and host of the podcast “Deep Background.” He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.” Distributed by Tribune Content Agency. © 2020 Bloomberg Opinion.