DOJ vets: Ukraine whistleblower puts Trump, Giuliani in legal jeopardy
Justice Department veterans say that an explosive whistleblower complaint against President Donald Trump that was released this week has thrown him in legal quicksand.
At the heart of the complaint is Trump’s July 25 phone call to Ukrainian President Volodymyr Zelensky in which Trump repeatedly pressured Zelensky to do him a “favor” and investigate former Vice President Joe Biden and his son. Trump held up a $400 million military-aid package to Ukraine days before the call.
The complaint mentioned Trump’s personal lawyer Rudy Giuliani 31 times. It said that he was a “central figure” in Trump’s effort and that Attorney General William Barr “appears to be involved as well.”
Former prosecutors told Insider that based on the complaint, Trump and others involved could face legal exposure in at least four areas: campaign-finance violations, bribery, misappropriation, and conspiracy.
Giuliani’s involvement also complicates matters for both him and Trump. “Why would a private citizen — not an employee of the United States — be involved in this unless he was working for the personal, political benefit of his client, Donald Trump?” one former prosecutor told Insider.
Justice Department veterans have one piece of advice for President Donald Trump and those around him in the wake of an explosive whistleblower scandal this week: Lawyer up.
The House Intelligence Committee on Thursday released a whistleblower complaint that a US intelligence official filed against Trump in August. The complaint alleged, among other things, that in a July 25 phone call, Trump repeatedly pressured Ukrainian President Volodymyr Zelensky to investigate former Vice President Joe Biden — the 2020 Democratic frontrunner and Trump’s political rival — ahead of next year’s election.
While the White House’s notes on the call showed that the US president did not directly mention offering aid in exchange for Zelensky’s assistance in investigating Biden, they confirmed that Trump brought up how the US does “a lot for Ukraine” right before asking Zelensky to do him a “favor” by investigating Biden and discrediting the former special counsel Robert Mueller’s Russia probe.
The whistleblower’s complaint mentioned Trump’s personal lawyer Rudy Giuliani 31 times. It said that he was a “central figure” in Trump’s effort and that Attorney General William Barr “appears to be involved as well.”
“The conduct discussed in this complaint is so direct that it’s striking,” said Elie Honig, a former federal prosecutor from the Southern District of New York who specialized in organized crime. “You have the president of the United States in direct communication — some might say collusion — with the president of Ukraine.”
Patrick Cotter, a former federal prosecutor who was part of the team that convicted the Gambino crime family boss John Gotti, echoed that view.
“What’s amazing is that the president went as far as he did here,” Cotter said. “It’s just stunning that he was so crude and open about it.”
Trump faces legal jeopardy on at least 4 fronts
In all, former prosecutors told Insider, there are at least four areas where Trump could face legal jeopardy.
The first is perhaps the most straightforward and relates to potential campaign-finance violations.
Under federal law, it’s illegal for a US person to solicit anything of value from a foreign national to tilt an American election.
The intelligence community inspector general, Michael Atkinson, and the acting director of national intelligence, Joseph Maguire, referred the whistleblower’s complaint to the Justice Department for criminal investigation because they were concerned that Trump broke election law.
The Justice Department’s criminal division elected not to investigate, because it didn’t think that what Trump asked Zelensky for constituted an item of value.
But “you don’t need to have any kind of exchange or quid pro quo to establish that a crime was committed here,” Honig said. “It doesn’t matter if there’s any exchange or deal in place, and the Justice Department copped out of this one by saying that Trump didn’t ask Zelensky for anything of value. It’s nonsense.”
The second relates to Trump’s requesting the “favor” of investigating Biden after he mentioned to Zelensky how the US does “a lot for Ukraine” and, more importantly, right after Zelensky raised the issue of US military aid.
“From a criminal-law point of view, that looks like an implicit quid pro quo,” Cotter said. “The juxtaposition of those statements is powerful evidence that Trump was linking the US’s aid to the favor he asked. The message is: ‘I’ll give you the missile-defense system, but you have to do me a favor first.'”
Under federal law, he added, that could open Trump up to allegations that he committed the crime of bribery “by offering one thing in exchange for another and doing so for his own personal benefit and not the country’s.”
‘People go to jail every day in this country for doing that’
Third, Cotter said, if Trump “in fact used government funds for his own gain, then there is a very strong argument that there is a theft of taxpayer money, or misappropriation, taking place — he misappropriated $400 million in taxpayer money, and instead of using it for government purposes, he stole it to potentially pay a bribe.”
“People go to jail every day in this country for doing that,” Cotter added, “and it looks like that’s what Trump tried to do.”
And finally, if Giuliani, Barr, and other officials were involved in Trump’s efforts, as the complaint alleges, that would raise questions about a potential criminal conspiracy.
“That would include anybody who was part of these transactions,” Cotter said. “The key legal concept behind a conspiracy is that everybody in the conspiracy is responsible for everybody else’s actions.”
Giuliani in hot water
Giuliani’s prominence in the whistleblower’s complaint is bad news for both him and Trump, legal experts said.
The complaint said Trump referred “explicitly” to Giuliani and Barr “as his personal envoys on these matters” while speaking to Zelensky.
Giuliani’s involvement in the Ukraine scandal undercuts the central premise of the president’s defense: that his conversation with Zelensky related strictly to government business and to Trump’s interest in rooting out corruption in Ukraine.
The complaint paints an intricate portrait of “the fact that Giuliani was driving a lot of this and doing the legwork for Trump” in Ukraine, Honig said. “But why would a private citizen — not an employee of the United States — be involved in this unless he was working for the personal, political benefit of his client, Donald Trump?”
The whistleblower outlined multiple meetings and interactions Giuliani had with Ukrainian officials following Trump’s phone call to go over “cases” they had discussed. Giuliani reached out to several other Zelensky advisers, but it’s unclear whether they ultimately met or what was discussed. Multiple US officials told the whistleblower that at least two of Zelensky’s aides planned to travel to Washington, DC, in mid-August.
Giuliani spoke at least twice this year with Yuriy Lutsenko, Ukraine’s prosecutor general at the time. In late 2018, Giuliani also reportedly spoke with Viktor Shokin, the former Ukrainian prosecutor general who is at the center of Trump and Giuliani’s unsubstantiated allegations of corruption against Biden.
Giuliani even planned to travel to Ukraine in May to press the Ukrainian government to investigate Biden but called off the trip at the last minute following a public firestorm.
Giuliani has said on multiple occasions that he’s pushed Ukrainian officials to investigate Biden and turn over dirt on him to the Trump team. If that’s the case, former prosecutors said, the former New York mayor could also be in legal jeopardy for having potentially violated federal campaign-finance laws.
“Based on the facts already in the public arena, the Department of Justice has more than enough basis to open a federal criminal investigation into the former New York mayor,” Mimi Rocah, a former federal prosecutor from the Southern District of New York, wrote in an NBC op-ed article.
The former New York mayor has pointed his finger at the State Department in recent days, asking Kurt Volker, the US special representative to Ukraine, and other department officials to say they directed Giuliani to meet with Ukrainian officials and press them to investigate Biden.
On Fox News on Thursday night, Giuliani shared what he said were text messages between himself and Volker, which appeared to show Volker asking Giuliani about his meetings with Ukrainian officials on the matter.
‘This is a shakedown and a cover-up’
Atkinson, the intelligence community’s inspector general, reviewed the whistleblower’s complaint and determined that it “appears credible,” a matter of “urgent concern.” Typically, that ruling would trigger a federal statute requiring the Office of the Director of National Intelligence to submit the complaint to congressional intelligence committees.
But Maguire testified on Thursday that because the complaint related to the president, he decided to consult the White House and the Justice Department for an executive-privilege review.
Maguire’s handling of the matter ignited a backlash from congressional Democrats, who accused him of sitting on the complaint to shield Trump from scrutiny. Democrats on the House Intelligence Committee made Maguire’s handling of the complaint the central issue during his testimony on Thursday.
But Justice Department veterans said that distracts from the bigger question.
“Democrats blew it with this hearing. They should have gotten out of their own way and kept it tight,” said Jeff Cramer, a longtime former federal prosecutor who spent 12 years at the Justice Department. “They can ask about the process and whether the DNI should have come forward sooner, how he handled this and all of that, but this is not the time, because the operative question right now is did the president violate his oath of office?
“They should have asked Maguire about the call and just drilled down on that,” he said. “Then talk to fact witnesses, because there’s only a handful of them. Add to that the fact that people in the White House actually buried the transcript of this phone call, because that shows consciousness of guilt.
“Anyone that had anything to do with moving that call to a different, secure server to protect the president’s personal political ambitions needs to lawyer up right now, and I’m sure they already have. Every defense lawyer in Washington, DC’s phone is ringing off the hook right now,” he added. “Then throw in Rudy, because that gives context about the fact that Trump was doing this for his own benefit and not the US’s, and there’s your case. It’s not difficult to put together. This is a shakedown and a cover-up.”