The Corner

Law & the Courts

Giuliani’s Not Getting Away with ‘Murder’

Rudy Giuliani (YouTube screengrab via ABC News)

“If [Trump] shot James Comey, he’d be impeached the next day,” Rudy Giuliani told HuffPost. “Impeach him, and then you can do whatever you want to do to him.”

I’m not entirely on the same page as the folks going ballistic over all this. I think this is a defensible argument, in theory. Indeed, it’s a really interesting discussion to have around a dinner table or over some beers.

By the way, if something like this happened, my hunch is that before Congress impeached Trump (“the next day,” according to Giuliani), the cabinet would invoke the 25th Amendment and have him removed. Though it’s not obvious to me Mike Pence would go along.

But here’s my problem: It is insane for Rudy Giuliani to be talking like this. It is terrible statesmanship, terrible lawfare, and terrible spin. As a matter of statesmanship, it is just grotesquely irresponsible to be discussing the president as having no legal checks on his behavior to the point where the law doesn’t prevent him from murdering a politically troublesome law-enforcement officer. How will the world interpret such rhetoric? How will normal American citizens? How will abnormal American citizens? How will future presidents use and abuse these statements?

I say it is terrible lawfare because Rudy Giuliani’s primary role here is to play lawyer on TV not to be the president’s actual lawyer. By publicly declaring that it is the Trump administration’s legal opinion that the president is personally above the law, even in the case of murder, Giuliani is starting from a position of argumentum ad absurdum. I’ll leave it to the legal beagles to explain whether that’s a good starting position in a courtroom (maybe it is), but in the court of public opinion, it strikes me as a huge mistake.

Which brings me to the spin. Giuliani is making the president look more guilty. He could have said something like:

Look, if the president actually murdered someone, we’d be in uncharted waters, and maybe the Justice Department would have to revisit its longstanding policy that the president can’t be indicted. But we’re not talking about anything like that. This was a president exercising his constitutionally derived powers in a lawful way. And even if you had a more sinister interpretation of these events, there’s nothing so explosive here so as to warrant breaking with the established view that a president — any president — cannot be indicted.”

Instead, at a subliminal level, Giuliani is comparing his client’s behavior to murder and insinuating that the president committed a crime, albeit one that’s not as bad as personally executing the FBI director. Yeah, I know he says over and over again that Trump is innocent (and he may well be). But that’s not the stuff that breaks through the fog. Instead, the takeaway — somewhat unfairly, but entirely predictably — is that Donald Trump can get away with murder.

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