Monday’s news that Rudolph Giuliani is a target of investigation in Georgia is bad news for him, and worse news for former President Donald Trump.
Giuliani’s lawyer, Robert Costello, said he was told by Fulton County prosecutors that they consider his client to be a target in their investigation into the scheme to overturn the outcome of the 2020 presidential election in Georgia. Giuliani served as the former president’s personal lawyer in the aftermath of the election. A judge has ordered Giuliani to appear before the grand jury pursuant to a subpoena, and he is scheduled to testify Wednesday.
A judge has ordered Giuliani to appear before the grand jury pursuant to a subpoena, and he is scheduled to testify Wednesday.
Reporting indicates that the Fulton County investigators are particularly interested in his appearances before Georgia Legislature panels in December 2020. During those appearances, Giuliani testified about debunked claims of voter fraud and suitcases full of ballots.
When people are called to testify before a grand jury, they may fall into one of three categories.
The first and most innocuous category is “witness.” To be a witness means that prosecutors believe the person has information that could help advance the investigation. For example, customers or employees who were present during a bank robbery might be considered witnesses.
The second category is “subject.” A subject is a person whose conduct might fall within the scope of the investigation, but it remains unclear whether that person is likely to face any charges. A person on the periphery of criminal conduct might be seen as a subject.
A “target” is the third — and most perilous — category. A target is sometimes referred to as a “putative” defendant. While a target does not always end up being indicted, a person becomes a target of a grand jury when the evidence has unfolded in such a way as to link the person to the commission of a crime. Prosecutors give targets an opportunity to testify and explain their side of the story, but, of course, anything targets say may be used against them at trial. Prosecutors notify people when they are targets so that they may make informed decisions about whether to speak to jurors or to instead invoke their Fifth Amendment right against self-incrimination.
Costello has said that if the questioning at the grand jury turns to Trump, Giuliani would probably invoke attorney-client privilege to avoid answering. But in this case, attorney-client privilege seems unlikely to shield Giuliani from answering at least some of the questions prosecutors are likely to ask.
One problem with that strategy is that attorney-client privilege is limited to communications between a lawyer and his client for the purpose of obtaining legal advice. And knowing this, prosecutors may pose questions that are outside of the scope of the privilege and which Giuliani will have a hard time deflecting.
Another problem is what is known as the crime-fraud exception to the attorney-client privilege. Lawyers and their clients cannot hide behind privilege to facilitate or conceal the commission of crimes. If Giuliani were to assert the attorney-client privilege to avoid answering questions about his conversations with Trump relating to challenging the election in Georgia, prosecutors could file a motion to compel his testimony. A judge would then evaluate whether the preponderance of the evidence showed it was more likely than not that Giuliani and Trump were engaging in the commission of a crime or fraud when they discussed the issues the grand jury wants answered. Lawyers and their clients cannot hide behind privilege to facilitate or conceal the commission of crimes. It is also possible that Giuliani will invoke a different privilege, his own Fifth Amendment privilege against self-incrimination, which permits people to refrain from answering questions if they have a well-grounded fear that their answers may expose them to criminal prosecution. But prosecutors also have a countermove here. If they believe that Trump is the bigger fish in this investigation, they could grant Giuliani what is known as “use immunity” and obtain a court order compelling him to testify. Use immunity means that prosecutors would pledge to not use Giuliani’s own statements against him in any criminal case — but, importantly, it would not preclude them from charging him. They would simply have to rely on evidence that is independent from his statements and evidence derived from them. Use immunity is not a silver bullet. It can sometimes make it more difficult for prosecutors to obtain and sustain a conviction because it requires independent sourcing for all of their trial evidence. In a high-profile case with a great deal of media attention, prosecutors must show that witnesses were not tainted by things they heard in the media tied to the target’s immunized testimony. Prosecutors learned this lesson the hard way during the prosecution of Oliver North, whose conviction was overturned because of his widely reported immunized testimony before a congressional committee. Nonetheless, the value of immunizing Giuliani would be that he could be forced to answer questions about Trump, even if it meant sacrificing a potential prosecution of Giuliani. That might be a trade worth making. One last tactic Fani Willis’ office could use is to put Giuliani before the grand jury without immunity, allow him to invoke his Fifth Amendment rights, and then, if the evidence merits criminal charges, indict him anyway. Prosecutors could then negotiate a recommendation of leniency in exchange for a guilty plea and truthful testimony about others involved in the scheme, including Trump. In other words, there are any number of paths this investigation could take now that Giuliani is a target. But all of them point to danger for Trump.
Barbara McQuade is a former Michigan U.S. attorney and legal analyst. 
