Dear Rudy Giuliani: Are Your Affairs in Order?

Fox News / YouTube Rudy Giuliani says there is no 1546217778.jpg...
Fox News / YouTube

So, Rudy says that Special Counsel Mueller will only get more answers from President Trump over Giuliani’s dead body.  But, it’s not gonna happen, as much as I would enjoy watching, whatever sort of Giuliani self-immolation would be required, to bring about exactly that outcome.  What will almost certainly happen instead?  If Mr. Mueller and his staff want Donald Trump to answer more questions, under oath, then, sooner or later, Trump will have to answer, no matter whether Rudy Giuliani lives or dies.  If the Grand Jury issues a subpoena for Trump’s testimony, Trump will certainly fight it, and, with nearly equal certainty, will lose that fight at every level up to and including the U.S. Supreme Court.

I don’t know anything about this except what I read in the papers.   As Will Rogers might have said, along with what I also learned in my legal career that lasted from 1975 until I retired in 2014.  My career consisted of litigation, that is, investigation of people, acts and occurrences to determine the facts of matters by means of evidence discovered and offered to a judge and/or jury for official and final determinations, through trial or hearing, of disputed law and facts.  I handled cases at all levels of the Federal system, U.S. District Courts, Circuit Courts of Appeals, and Supreme Court.  I was admitted to the Bar of the United States Supreme Court in 1982.  I’ve practiced extensively in State courts in numerous States, including Oklahoma, Texas, Louisiana and Illinois.

If there is one thing I know a thing or two about, it’s American judges.  Judges respect and appreciate nothing more than they value judicial power.  Judges are receptive to lawyers who argue in support of precedents recognizing the existence and wide scope of judicial power.  They give the squinky eye to lawyers who argue for eroding those precedents and that power.  Judges understand quite well that the power, to compel people to give evidence (so long as the evidence isn’t self-incriminating), fundamentally and centrally underlies the very essence of what judges exist in order to do.  Without the power to compel the production of evidence, the very idea of judicial power becomes meaningless.  The only purpose for a judge to exist is to apply existing law to adjudicated fact.  Without complete evidence, factual adjudication fails and the just application of law becomes impossible.

Also important in the case of Trump, considering the generally sleazy way he goes about his affairs, is the crime-fraud exception that the law often recognizes to overrule claims of privilege from the production of evidence.  For example, if you tell your lawyer about your bank heist plan, Attorney-Client Privilege will not prevent disclosure of that discussion.   Whether or not such a crime-fraud exception applies to Presidential claims of Executive Privilege has never been tested, because Trump’s dishonesty is unprecedented.   But, such a test case lies just over the horizon.

There presently are only four complete political hacks on the US Supreme Court, Justices Alito, Thomas, Gorsuch, and Kavanaugh.  So, for now, given that Chief Roberts is a near, but not total git, the foundations of the Republic will survive when, mindful of his personal legacy, the Chief, joined by Justices Kagan, Breyer, Sotamayor and Ginsberg, upholds the power of Article III judges to compel Article I Presidents to give up evidence relevant to meritorious allegations in criminal prosecutions involving misconduct by the President.

This could kill Rudy.

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Anybody who defends Trumps needs to be investigated on what they are getting from Trump in order to continue defending Trump. Guiliania’s divorce might prove to be very interesting, or maybe Judith will leverage what she knows to get what she wants.