What Can Giuliani Say and Will He?

Can President Trump prevent Rudy Giuliani from testifying to Congress because he is his private attorney?

Yes and No. The President can prevent Giuliani from testifying about any legal opinion or legal advice he gave to the President, but he cannot prevent him from testifying about any non-legal discussion they had or any discussions Giuliani had with third parties.

Let’s look at an example to see how the attorney-client privilege works. Suppose you want to start a business and you turn to your friend, who is also an attorney, for advice. The two of you discuss how to incorporate your company, but you also talk about whether or not your product is better than the competition. You even go one step farther and concoct a plan for how best to bring down your competition. The plan involves paying someone to plant a few used and broken products of your competitor’s on the shelves of a retail store.

Does the attorney-client privilege prevent your attorney friend from testifying about your discussions?

The attorney-client privilege is not a blanket shield. Each part of the communication is evaluated separately. So, in my example the following would be true:

The discussion regarding the incorporation of your future business is privileged. There are many laws you must follow in order to become a legal entity so your friend is clearly giving you legal advice.

The discussion regarding your product and how it applies to your competitor’s product may or may not be privileged depending on exactly what was said.

For example, if you and your friend discussed how much you want to be better than the competition but you were worried that the other product was cheaper, or worked better or people might like it more, then that discussion would be a general business discussion and not legal in nature and would not be covered.

If instead, the two of you spoke about how the advantage of the competitor’s product was that it was in all 50 states and how long it would take you to make sure that your product complied with the regulations of every state, then your conversation is legal in nature and would be protected.

The last part of your conversation regarding the plan you both have concocted to bring down the competition is clearly not covered by attorney-client privilege because it involves committing a fraud or even a crime. That’s a clear exception under the law.

What about Giuliani’s conversations with people from Ukraine or others that are not the President? Are those protected by Attorney-Client Privilege?

The Attorney-Client privilege only applies to confidential communications between the client and the attorney. Therefore, Giuliani can be compelled to testify about any communications he had with people other than President Trump. Furthermore, he cannot now try to invoke a shield after having disclosed to the press his conversations with Ukrainian officials.

Applying the law to the present case, President Trump cannot use attorney-client privilege to prevent Giuliani from appearing in front of Congress. Giuliani would have to appear and answer questions regarding any of his discussions or actions with people other than President Trump.

If Giuliani refuses to answer questions regarding his communications with President Trump, then it would be reasonable for all parties to have the Court clarify what part of their discussions can remain private because of the attorney-client privilege and what must be disclosed because they are either nonlegal in nature or in furtherance of a fraud.

Will Giuliani testify to Congress?

What Rudy Giuliani will do is anyone’s guess. But based on his actions so far, my guess would be: not without a court order. As in many cases where attorney-client privilege becomes an issue, a Judge will most likely review in private the nature of the conversations between the President and Giuliani to determine what if any conversations are protected by the privilege. Keep in mind, the privilege, even if applied, will only apply to those private conversations between Trump and Giuliani. Therefore, based on attorney-client privilege alone, the President cannot stop Giuliani from appearing in front of Congress.

The President could, and probably will, also assert executive privilege, which he will argue he is entitled to as President. This privilege has nothing to do with the fact that Giuliani is a lawyer, and arguably wouldn’t apply since Giuliani is not part of the executive branch; however, the executive privilege is distinct from the attorney-client privilege and therefore outside the scope of this article.

If Giuliani still refuses to testify despite being court ordered to do so, he will be subject to all sorts of consequences not the least of which is potential disbarment. Why would someone already so important and powerful care if he lost his law license? Well, as we can see here, the privileges of confidentiality are powerful. If he were disbarred, any discussions he had with President Trump going forward would have no protection at all.

Disbarring him for refusing to testify would be the right thing. The confidentiality between an attorney and his client is a privilege, not a right. It is meant to shroud the relationship in a way that allows an attorney to effectively help his client. Once that privilege is abused, it goes away. The legal profession has to uphold a standard of conduct for its own survival. The profession cannot, and does not, allow a “fixer” to shield his client or his friend from the law simply because he has a law license.

A lawyer is meant to serve the law, not circumvent it and Rudy Giuliani is no exception.