Mr. Chief Justice, Majority Leader McConnell, members of the Senate, I expect you have heard American poet Carl Sandburg’s summary of the trial lawyer’s dilemma. If the facts are against you, argue the law. If the law is against you, argue the facts. If the facts and the law are against you, pound the table and yell like hell.
Well, we’ve heard the House managers do some table pounding and a little yelling. But in the main, they’ve used a different tactic here. A tactic familiar to trial lawyers, though not mentioned by Mr. Sandburg. If both the law and the facts are against you, present a distraction. Emphasize a sensational fact. Or perhaps a colorful and controversial public figure, who appears on the scene. Then distort certain facts. Ignore others, even when they’re the most probative. Make conclusory statements. And insinuate the shiny object is far more important than the actual facts allow. In short, divert attention from the holes in your case.
Rudy Giuliani is the House manager’s colorful distraction. He’s a household name. Legendary federal prosecutor who took down the Mafia, corrupt public officials, Wall Street racketeers. Crime-busting mayor, who cleaned up New York and turned it around. A national hero. America’s mayor after 9/11. After that, an internationally recognized expert on fighting corruption.
To be sure, Mr. Giuliani has always been somewhat of a controversial figure for his hard-hitting, take no prisoner approach. But it’s no stretch to say that he was respected by friend and foe alike for his intellect, his tenacity, his accomplishments, and his fierce loyalty to his causes and his country.
Then the unthinkable. He publicly supported the candidacy of President Trump, the one who was not supposed to win.
The House managers would have you believe that Mr. Giuliani is at the center of this controversy. They’ve anointed him the proxy villain of the tale, the leader of a rogue operation. Their presentations were filled with ad hominem attacks and name-calling. Cold-blooded political operative. Political bag man. But I suggest to you that he’s front and center in their narrative for one reason and one reason alone, to distract from the fact that the evidence does not support their claims.
What’s the first tell that Mr. Giuliani’s role in this may not be all that it’s cracked up to be? They didn’t subpoena him to testify. In fact, Mr. Schiff and his committee never even invited him to testify. They took a stab at subpoenaing his documents back in September. When his lawyer responded with legal defenses to the production, the House walked away. But if Rudy Giuliani is everything they say he is, don’t you think they would have subpoenaed and pursued his testimony? Ask yourselves, “Why didn’t they?”
In fact, it appears the House committee wasn’t particularly interested in presenting you with any direct evidence of what Mayor Giuliani did or why he did it. Instead, they ask you to rely on hearsay, speculation, and assumption, evidence that would be inadmissible in any court.
For example, the House managers suggest that Mr. Giuliani, at the president’s direction, demanded that Ukraine announce an investigation of the Bidens and Burisma before agreeing to a White House visit. They base that on a statement to that effect by Ambassador Sondland.
But what the House managers don’t tell you was that Sondland admitted he was speculating about that. He presumed that Mr. Giuliani’s requests were intended as a condition for a White House visit. Even worse, his assumption was on third-hand information. As he put it, the most he could do is repeat what he heard through Ambassador Volker from Giuliani, whom he presumed spoke to the president on the issue. By the way, as Mr. Purpura has explained, the person who was actually speaking to Mr. Giuliani, Ambassador Volker, testified clearly that there was no linkage between the meeting with President Zelensky and Ukrainian investigations.
The House managers also make much of a May 23rd White House meeting, during which the president suggested to his Ukraine working group, including ambassadors Volker and Sondland, that they should talk to Rudy. The managers told you that president Trump gave a directive and a demand that the group needed to work with Giuliani if they wanted him to agree with the Ukraine policy they were proposing. But those words, directive and demand, are misleading. They misrepresent what the witnesses actually said.
Ambassador Volker testified that he understood, based on the meeting, that Giuliani was only one of several sources of information for the president. And the president simply wanted officials to speak to Mr. Giuliani because “he knows all these things” about Ukraine. As Volker put it, “The president’s comment was not an instruction, but just a comment.” Ambassador Sondland agreed. He testified that he didn’t take it as an order. He added that the president wasn’t even specific about what he wanted us to talk to Giuliani about.
It may come as no surprise to you that after the May 23rd meeting, the one during which the House managers told you the president demanded that his Ukraine team talk to Giuliani, neither Volker nor Sondland even followed up with Mr. Giuliani until July. The July followup by Mr. Volker happened only because the Ukrainian government asked to be put in touch with him. Volker testified that President Zelensky’s senior aide, Andriy Yermak, approached him to ask to be connected to Mr. Giuliani.
House Democrats also rely on testimony that Mayor Giuliani told ambassadors Volker and Sondland that in his view, to be credible, a Ukrainian statement on anti-corruption should specifically mention investigations into 2016 election interference and Burisma. But when Ambassador Volker was asked whether he knew if Giuliani was, and these are his words, “conveying messages that President Trump wanted conveyed to the Ukrainians,” Volker said that he did not have that impression. He believed that Giuliani was doing his own communication about what he believed he was interested in.
But even more significant than their reliance on presumptions, assumptions, and unsupported conclusions is the manager’s failure to place in any fair context, Mr. Giuliani’s actual role in exploring Ukrainian corruption. To hear their presentation, you might think that Mayor Giuliani had parachuted into the president’s orbit in the spring of 2019 for the express purpose of carrying out a political hit job. They’d have you believe that Mayor Giuliani was only there to dig up dirt against former Vice President Biden, because he might be President Trump’s rival in the 2020 election.
Of course, Mr. Giuliani’s intent is no small matter here. It’s a central and essential premise of the House manager’s case that Mr. Giuliani’s motive in investigating Ukrainian corruption and interference in the 2016 election was an entirely political one, undertaken at the president’s direction.
But what evidence have the Managers actually offered you to support that proposition? On close inspection, it turns out, virtually none. They just say it over, and over, and over. And they offer you another false dichotomy. Either Mr. Giuliani was acting in an official capacity to further the president’s foreign policy objectives, or he was acting as the president’s personal attorney, in which case they conclude ispe dixit, his motive could only be to further the president’s political objectives.
The House managers then point to various of Mr. Giuliani’s public statements in which he is clear and completely transparent about the fact that he is indeed the president’s personal attorney. There you have it. Giuliani admits he’s acting as the president’s personal attorney and therefore, he had to have been acting with a political motive to influence the 2020 election. No other option, right? Wrong.
There is of course another obvious answer to the question, “What motivated Mayor Giuliani to investigate the possible involvement of Ukrainians in the 2016 election?” The House managers know what the answer is. It’s in plain sight. And Mr. Giuliani has told any number of news outlets exactly when and why he became interested in the issue. It had nothing to do with the 2020 election.
Mayor Giuliani began investigating Ukraine corruption and interference in the 2020 election way back in November of 2018, a full six months before Vice President Biden announced his candidacy. And four months before the release of the Mueller report, when the biggest false conspiracy theory in circulation that the Trump campaign had colluded with Russia during the 2016 campaign was still in wide circulation.
As The Hill reported, “As President Trump’s highest-profile defense attorney, the former New York City mayor, often known simply as Rudy, believed the Ukrainian’s evidence could assist in his defense against the Russian collusion investigation and former special counsel Robert Mueller’s final report. So Giuliani began to check things out in late 2018 and early 2019.”
The genesis of Mayor Giuliani’s investigation was also reported by numerous other media outlets, including CNN, which related that “Giuliani’s role in Ukraine can be traced back to November 2018, when he was contacted by someone he describes as a ‘well-known investigator.’” The Washington Post and many other news outlets reported the same information.
So yes, Mayor Giuliani was President Trump’s personal attorney, but he was not on a political errand. As he has stated repeatedly and publicly, he was doing what good defense attorneys do. He was following a lead from a well-known private investigator. He was gathering evidence regarding Ukrainian election interference to defend his client against the false allegations being investigated by special counsel Mueller.
But the House managers didn’t even allude to that possibility. Instead, they just repeated their mantra that Giuliani’s motive was purely political. That speaks volumes about the bias with which they have approached their mission. The bottom line is Mr. Giuliani defended President Trump vigorously, relentlessly, and publicly throughout the Mueller investigation and in the nonstop congressional investigations that followed. Including the attempted Mueller redo by the House Judiciary Committee, which the managers would apparently like to sneak in the backdoor here.
The House managers may not like his style. You may not like his style. But one might argue that he is everything Clarence Darrow said a defense lawyer must be. Outrageous, irreverent, blasphemous, a rogue, a Renegade. Fact is in the end, after a two years siege on the presidency, two inspector general reports, and a $32 million special counsel investigation, turns out Rudy was spot on.
Seems to me, if we’re keeping score on who got it right on allegations of FISA abuse, egregious misconduct at the highest level of the FBI, alleged collusion between the Trump campaign and Russia, and supposed obstruction of justice in connection with the special counsel investigation, the score is Mayor Giuliani four, Mr. Schiff zero.
But in this trial, in this moment, Mr. Giuliani is just a minor player. That shiny object designed to distract you. Senators, I urge you most respectfully, do not be distracted.
Thank you, Mr. Chief Justice.