Giuliani and the “Zero” Defense

225px-rudy_giulianiBelow is my column in USA Today on the disastrous interviews given by Rudy Giuliani where he made a series of damaging statements on the Stormy Daniels scandal and other matters related to President Donald Trump.  He has since walked back his remarks and President Trump has said that Giuliani needs to “get his facts straight” and said that people had to “learn before you speak. It’s a lot easier.”   Giuliani seemed to contradict himself in the same interview and tripped more wires for potential criminal and ethical violations. Giuliani who emphasized that “zero” money for Daniels came from the campaign seemed to fundamentally miscomprehend the law which is designed precisely to catch contributions coming from outside the campaign reporting system.  While doing little for the defense, it did create new questions about the failure to report the loan, the use of payments disguised as fees, and the obvious conflict with Cohen’s own recollection and statement — a point that Cohen himself made to the media.

Here is the column:

One day after President Trump added a major league lawyer to his lineup in the form of Emmett Flood, the Trump legal team returned to playing T-ball on television. Rudy Giuliani sat down with both Fox News host Sean Hannity and the Fox and Friends crew, and added incomprehensible moments to an increasingly incomprehensible defense.

First came Hannity, who asked Giuliani about Russians giving dirt on Trump to the investigator Christopher Steele, paid by the Hillary Clinton campaign. Giuliani’s response will now enter the Hall of Fame of the greatest non sequiturs in history. Giuliani immediately started talking about Stormy Daniels and said, “Sorry, I’m giving you a fact now that you don’t know.”

He then proceeded to directly contradict the past denials by both the president and Trump lawyer Michael Cohen that Trump had no knowledge of the $130,000 paid to the porn star. It was clearly a planned moment where the Trump team would start the awkward process of tacking away from the president’s denials and toward defensible legal ground.

Trump’s past blanket denials were consistent with Cohen’s past insistence that he received no reimbursement for the Daniels’ payments, and that the president had no knowledge of the agreement or the payments. The problem is that the denials were manifestly implausible and increasingly in conflict with developing facts.

The defense team likely saw a painful change in Trump’s account as inevitable and decided that it was time to take the hit. Indeed, the team might have concluded that changing the president’s factual account is unlikely to come at a political cost. The White House may have been encouraged by a new NBC News poll that shows 76% of Republicans still believe Trump tells the truth “all or most of the time.” The White House may feel that Trump’s base is virtually immune from glaring contradictions by the president.

Giuliani asserted Thursday on Fox and Friends that the payment of hush money just before the election “wasn’t for the campaign” — reflecting a clear calculus that the logically implausible can still be legally defensible. Thus, if the money is claimed to be, as suggested by Giuliani, an effort “to save their marriage,” it makes the motivation personal rather than political.

However, this change in the narrative then changed immediately when Giuliani corrected himself to say, “Not their marriage as much as their reputation.”

If it is about reputation, it brings the matter back toward the campaign.

It remains to be seen whether Trump’s team has found a better legal footing. Giuliani describes the money as being “funneled” through Cohen in the form of attorney fees — a practice that would seem at best deceptive and at worse potentially criminal or unethical in some respects. It is like saying you did not rob the bank, you only embezzled through a banker.

According to Giuliani, a monthly retainer for attorney fees was used to pay hush money and the president “did know” of the general arrangement. Giuliani also suggested that virtually the entirety of the retainer fees were for this purpose, but that Cohen was given “retainer of $35,000 when he was doing no work for the president.” Giuliani said it was meant to pay Cohen back “with a little profit and a little margin for paying taxes.”

However, it was being claimed as fee payments — a subterfuge that could only be used to shield the payments. It would also mean that, whatever attorney-client privilege claims Cohen is maintaining in New York after the FBI raid, Cohen is now the only person claiming a substantive attorney-client relationship with Trump. He has been reduced to little more than a “funnel.”

In removing the glaring conflicts with some prior facts, Giuliani’s new account conflicts with a new set of facts. Giuliani insists that the president did not know about the “details” until 10 days ago. That would be April 23. Conveniently, that was weeks after the president on Air Force 1 expressly denied any knowledge of the payment to Cohen.

However, it would also mean that these details were unknown months after the explosion of this scandal and weeks after he sat down for a high-visibility dinner with Cohen.

Even if the president succeeds in moving to a new position, Cohen does not have the same flexibility. He is stuck in the same place that he was 48 hours ago, but now he is alone. Cohen has repeatedly stated that there was no reimbursement for his payments to Daniels: “Neither the Trump Organization nor the Trump campaign was a party to the transaction with (Daniels), and neither reimbursed me for the payment, either directly or indirectly.”

There is now a growing chasm between Trump and Cohen. The obvious problem for Trump is that if Cohen gets lonely enough, he could find a new friend in Mueller.

The upshot is that the team can still face a campaign-finance allegation after leaving the most dangerous potential witness in an isolated and estranged position. It also means there was a conscious effort to pay Cohen for hush money paid to a porn star days before an election. That is not a material improvement.

After tweeting again this morning, the president made his way to a prayer breakfast. Hopefully, that is not the final option left to him by his legal team. Prayer can be redemptive but, in both life and litigation, “God helps those who help themselves.” None of this is helpful.

Jonathan Turley, a member of USA TODAY’s Board of Contributors, is the Shapiro Professor of Public Interest Law at George Washington University, where he teaches constitutional and tort law. Follow him on Twitter: @JonathanTurley.

154 thoughts on “Giuliani and the “Zero” Defense”

  1. I see that the usual escapees from Bedlam are posting here like crazy. Wait. They are crazy.

  2. And now for some REAL legal analysis of the Mueller scam from a REAL Constitutional scholar. . . . . .

    1. Turley is being absolutely crucified in the ‘twitter’ sphere by Constitutional lawyers all over this country…..

      Feel sorry for the guy – he is being substantially diminished by a mess of contradictions depending on which news source is using him for ‘narrative engineering’ on any given day. Apparently he’s really stepped in it this week……..

  3. Levy, I’ve spent some time in cyber security….About 35 years. I know who you are. And where you are! I’ll leave a case of donuts & butt plugs at your residence. Free shipping!

  4. Dr. Turley, altho i appreciate your analysis of the legal implications here w Rudy’s somewhat ill thought out remarks, i disagree w your thoughts on prayer. “GOD HELPS THOSE WHO HELP THEMSELVES” is NOT Biblical, but a historical rationale from Protestantism.

    1. You forgot the Leftist mantra. God helps those who help themselves to their neighbor’s property.

  5. Didn’t Cohen take the 5th? To whom did he lie?

    To whom did President Trump lie when he discussed the timing of either his legal romantic affair or his legal contract which is a non-disclosure agreement?

    If private money is spent on a haircut to make a candidate “look good,” does it constitute a violation of election law? If private money is spent on an NDA, does it constitute a violation of election law?

    The King of Saudi Arabia has four wives – how’s that religious freedom and freedom of assembly working for you?

    Were pre-dawn raids of their homes with guns drawn executed by an overzealous, rabidly aggressive, police state FBI against Hillary, Bill, Huma, Martha Stewart, John Edwards et al.?

    Meanwhile, the Obama coup d’etat in America moves inexorably forward as Rosenstein and Mueller execute a malicious prosecution of a person not a crime and without probable cause, the Royal Department of Justice and the Royal FBI refuse to provide incriminating documents to Congress, the representative of the “Sovereign,” the People and John Kerry, private citizen, has conducted shadow diplomacy with Iran, implementing the foreign policy of Barack Obama, private citizen.

    What we have here is subversion and treason while the propagandist MSM focus America’s attention on things salacious and superfluous.

    What we have here is the most prodigious scandal in American political history – the Obama coup d’etat in America.

    1. George, you should really take these questions to Alex Jones. He’s the specialist at big, wild conspiracies. Professor Turley teaches law at a fine university. Big, wild conspiracies are not his forte.

      1. BS is Mr. Turley’s forte. And, of course, his deep love and admiration for the “Anal Queen.”

      2. Peter, Ralph is impervious to reason, and as big a whacky conspiracy buff as the demented Alex Jones.
        For some reason Professor Turley’s blog attracts more than its share of loonies, go figure.

        1. listlessbill, I consider leftists like you to be total whackos.

    2. What! No reference to the “Deep State”? Obviously, the Kookcast of georgie has been hijacked!

      this is to ” saw black helicopters shooting ray guns at possums in my backyard yesterday” georgie

  6. Trump is proving to be everything we all knew before the election – a circus ringmaster.
    His insults of immigrants and especially Latinos was beyond the pale.

    Has anybody seen Hillary? Are we sure she isnt hanging somewhere ala Vince Foster?

    It is highly likely she could not swallow the fact that she lost to such a circus barker like Dtrumpf, and yet, she did.
    She lost, she lost, how can she live with herself? Bill certainly wont miss her


    1. His insults of immigrants and especially Latinos was beyond the pale.

      He didn’t insult ‘immigrants’. He said the illegal immigrant population was shot through with criminals. Partisan Democrats fancy it’s ‘beyond the pale’ for someone to make sociologically true statements about the mascot groups of partisan Democrats.

  7. We Americans are television fed and movie educated.

    We stare at “The One Eyed God. The One And Only True God!”

    We look for deliverance, or, at least, revelation only to be mislead and deceived by those whom we grant power over us.

    Consequently, Rudy Giuliani, a washed-up political swamp creature with no criminal defense trial skills, dances and mouths shadows on the cave wall for all the mind forged manacled members of the red and blue team.

    It is better to remain silent and thought a fool then to open one’s mouth and resolve all doubt.

    I will not tire of saying, “Any lawyer worth his salt will tell the suspect in no uncertain terms to make no statement to the police under any circumstance.”  Watts v. Indiana  338 U.S. 49, 59 (1949).

    Trying, or attempting to try, a case in the “mythical court of pubic opinion” may be a productive activity for a politician mouthing propaganda or a professor professing gibberish, but it does not preserve, protect or advance a potential criminal defendant’s rights or interests.

    No greater or simpler evidence of an irrelevant politician or professor want-to-be criminal defense attorney is a final appeal to the imaginary baby sitter in the sky.

    dennis hanna

    1. Consequently, Rudy Giuliani, a washed-up political swamp creature with no criminal defense trial skills,

      He’s arguably the most accomplished elected executive this country has had since Gen. Eisenhower retired. It’s highly unlikely he could have prospered as a prosecutor without acquiring some skills of use in criminal defense.

      1. Nutchacha

        Yes, indeed. Maybe Rudy will one day show some of those skills. BTW, do you where Rudy was on 9/11?
        How did he know to not show up at his emergency command center? Did Larry “Pull it” Silverstein suggest it might not be a good idea to go there?

      2. Rudy Guiliani did great work as a United States Associate Attorney General back in 1981-1983.
        The Rudy making an ass of himself in interview after interview this week is not the same guy.

    2. “We Americans are television fed and movie educated.”

      Feed them anything you like, the vast majority was never intended to vote in the American restricted-vote republic (not a one man, one vote democracy). The criteria were Male, European, 21 and 50 lbs. Sterling or 50 acres (interestingly, 10% voted in the earliest democracy, Greece, 350 BC).

      Fun fact: The American Founders did not intend for the “poor,” women or illegal aliens to vote. Updated, the “poor” would include recipients of checks from taxpayer funds including welfare recipients and public workers – millions upon millions of them which the Founders, also, never intended. The “poor” would “sell” their votes. They did. Women, it was understood, were well represented by their husband’s vote (presuming he met the criteria) and very busy making the nation’s population; in modernity, as the American birthrate succumbs to a “death spiral” thanks to the dereliction and negligence of American women, America imports its population. That, also, was not the intent of the Founders as within the year of the adoption of the Constitution and twice later, the Founders passed the Naturalization Act of 1790 which required citizens to be “…free white person(s)…”

      Shall we toast “…to ourselves and our posterity,…?”

      America is a little bit off track, wouldn’t you say?

      1. Tinfoil sale down to the piggly-wiggly this weekend.

        this is to “doesn’t this hat look good on me” georgie

        1. George is not our only nut. see also Oky1 and Ralph Adamo.
          Whacky conspiracy theories galore.
          Oky1 is an Alex Jones fan, nuff said.
          Why does Professor Turley’s blog attract so many loonies?
          “Is a puzzlement”

  8. The fact that Mr. Turley is focusing on the Stormy “Anal Queen” Daniels story and is totally ignoring the Judge T.S. Ellis story calling Mueller to the carpet should immediately tell any thinking person that Mr. Turley is a partisan hack and a complete phony pretending to be a Constititional “scholar.” While Deep State pressure will be brought on Judge Ellis to fold, until and unless he folds, Mueller and the anti-Trumpers will be finished. Will Mr. Turley and other anti-Trumpers continue to focus on the “Anal Queen?” I don’t doubt it. That’s about all they have.

    1. Ralph

      Do you consider yourself fairly well informed about the Mueller investigation? If you do, you don’t seem to know much. If you don’t, you should get up to speed before your next attempt to give us the (dubious) benefits of your knowledge and uninformed opinions.

  9. I’ve resorted to other sources of information.

    Horoscopes, divination, tarot cards, astrology, Ouija Board & numerology.

    Nancy Reagan was into this. Nancy would not let go Ronald go to certain events. But Nancy slipped up when John Hinckley Jr. shot Ronald Reagan in Wash D.C.

      1. Levy, your standing in my ring. Don’t rub me the wrong way. Got that “LEVY”?

    1. No, Nancy took an interest in astrology after the assassination attempt.

    2. Jerry

      The Reagans never invited the Bushes to the president’s private quarters in the WHouse – because she believed or was suspicious that GHWB may have had something to do with the attempt to assassinate her husband. And then-CIA operative “Poppy” was seen in a photo right outside the TSBD on 11/22/63.

        1. Peartree,
          Patriot is an antisemitic nutcase.
          Why are so many loonies attracted to Professor Turley’s blog?
          Oky1, Adamo, Patriot….
          “Is a puzzlement”

  10. Maybe Giuliani just made that stuff up to make a trail to nowhere. He wasn’t under oath. Maybe Hannity was in on it.

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