Robert F. Jakubowicz: Giuliani makes 'blame the lawyers' strategy easy

PITTSFIELD — Lawyers, according to public opinion polls, do not have a good reputation. The last thing that professional group needs is a Rudy Giuliani to take the national stage as President Donald Trump's lawyer to garble facts and misapply the law. An aging Giuliani seems to have forgotten the golden rule of basic lawyer training, namely, collecting the facts and correctly applying the law to them.

Comparing the statements made by Trump and Michael Cohen as seen on television and how they were presented by what Giuliani said as Trump's lawyer, I was reminded of the line in the movie "Duck Soup" by Chico Marx: "Who are you going to believe, me or your own eyes?"

By now, millions of television viewers have seen the clip of Trump on Air Force One being asked an unambiguous question about a month ago by a reporter "Did you know about the $130,000 payment to Stormy Daniels?" Trump's equally unambiguous answer was: "No, no." The president was then asked. "Why did Michael Cohen make (the payment) if there was no truth to her allegations?" The president replied: "You'll have to ask Michael Cohen."

When Cohen was asked about this, he replied that he used his home equity line of credit for the payment and he also said that "neither the Trump Organization nor the Trump campaign was party to the transaction and neither reimbursed (him) for the payment, either directly or indirectly."

Thus the facts — an unambiguous statement by Trump that he knew nothing about the payment and a statement by Cohen that he made the payment from a personal home equity line of credit, while not saying whether he had been reimbursed and by whom.

Marxian response

Last week, Giuliani, as Trump's newest legal team member, appeared on Fox News commentator Sean Hannity's show and acted like Chico Marx by representing the above statements as follows: Trump "didn't know the specifics of it (the payment) as far as I know, but he did know the general agreement that Michael would take care of things like this, as I take care of things like this for my clients." Giuliani also said that the way Trump is reimbursing Cohen is by a retainer he pays the latter with "a little profit and a little interest for paying taxes for Michael."

Even Trump was taken aback by Giuliani's statements. When Trump was questioned by reporters about these statements by Giuliani, he responded by saying that Giuliani just joined the legal team and he would soon "get his facts straight."

The key part of the potential election law violation that is involvedis whether the payment was done for the purpose of influencing an election. Giuliani said that since no Trump campaign funds were used for what was a standard nondisclosure agreement by a lawyer for a client there was no violation of that law. Giuliani misapplied this law because of other factors such as the timing of the payment. The alleged extramarital affair by Trump and Stormy Daniels took place in 2006. The push to have her sign the agreement in exchange for the payment was almost 12 years later and made just weeks before the 2016 when she signed it and got the money. This timing is certainly an important fact which bears on the purpose of the agreement.

Also Giuliani, who should have known better, emphasized that point when he told "Fox and Friends" in a television appearance: "Imagine if that (the affair alleged by Stormy Daniels) came out on October 15, 2016 in the middle of the last debate with Hillary Clinton." Clearly Giuliani is referring to such a public disclosure as causing a potential election loss for Trump. A competent lawyer would have the professional sense of not to make that statement. It should have been obvious to Giuliani that such factors make this matter arguably a plausible violation of the election law,

Not best, brightest

There are some very important constitutional questions about a president's rights in the investigations surrounding Trump. He should be represented by some of America's best and brightest lawyers who are mindful of that..So far, based on his start at part of Trump's legal team, Giuliani is not one.of them. And instead of acting as such, he is engaging in a public attack on the investigators.

Right now the pressing legal question is whether Trump will agree to be interviewed by Special Counsel Robert Mueller so his investigation can move either holding the interview, subpoenaing a defiant Trump before the grand jury or going on without Trump being questioned. This is an important constitutional question to be resolved. Is the president above the rule of law regarding being questioned under the circumstances.

But so far, Giuliani is not working to move the matter forward. He has instead joined Trump's public con game of making it appear that the president wants to be interviewed, although in my opinion Trump really does not, and makes a show of blaming his lawyers for supposedly preventing him from being questioned by Mueller.

Robert "Frank" Jakubowicz is a retired attorney and a regular Eagle contributor.


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