The Biden DOJ’s Targeting of Rudy Giuliani Could Backfire Spectacularly By Andrew C. McCarthy
“President Biden is incorrigible. With his ample record of not knowing when to leave well enough alone, he probably doesn’t know better. Merrick Garland is supposed to know better.”
If you get that, you’ll understand the latest Ukraine kerfuffle.
Yes, I know, the press says it’s all about Rudy. We’ll get to that part. At bottom, though, the story is about two other men. The first is Biden — specifically, his unique capacity to turn good fortune into farce. The second is Attorney General Merrick Garland.
It was too much to expect that Garland’s seasoned moderation would counterbalance the woke warriors of his Department of Social Justice. The president’s grandiose hallucinations aside, the Biden administration is not the New Deal reincarnate. It is not going to move epic progressive legislation across the finish line. If it’s going to appease its restive left flank, it will have to sic federal prosecutors on police departments, high-school locker rooms, and the Little Sisters of the Poor. We get that. But one would have hoped that AG Garland would have the good sense to steer the administration away from patently politicized, score-settling prosecutions that are apt to blow up in the president’s face.
That is the newest chapter in the Ukraine saga. True, the action is carried by Giuliani, careening like a bull in a china shop from Trump impeachment to Trump impeachment. But the story only happens because Giuliani takes Biden at his word — and as Obama could tell you, that’s always risky. The story only continues, long after it was time for Biden to claim victory and move on, because Garland won’t put his foot down and say, “Enough is enough.”
Biden Mindlessly Exaggerates His Role in Ukrainian Prosecutor’s Firing
Biden bought himself a Ukraine political scandal for two reasons. First, he is so obtuse, and his family is so grubby about cashing in on his influence, that the then-VP wouldn’t tell his son to stay out of Kiev. That’s where Hunter Biden’s sinecure at Burisma, a corrupt energy company, undermined the West’s anti-corruption agenda, which then-Vice President Biden was helping the Obama administration lead. Second, Biden grossly exaggerated his bit-player role in forcing Ukraine’s government to fire its chief prosecutor, weaving a Bidenesque yarn (i.e., easily, provably false boasts of derring-do) in which he comes off as a political tough-guy. He has never been able to control himself when he gets rolling, so it did not dawn on him that, this time, his wind-baggery might make him seem criminally corrupt — as opposed to merely sleazy.
As the private lawyer for former president Donald Trump and the Trump 2020 campaign, Giuliani picked up Biden’s self-aggrandizing story and ran with it. The premise, however, was false. In reality, Biden did not cold-bloodedly extort Ukraine into firing its chief prosecutor, Victor Shokin. He just said he did.The Giuliani of old — the legendary prosecutor who led the SDNY office that is now investigating him (that’s the Southern District of New York, where he hired me in the early 1980s) — would never in a million years have banked a case on something Joe Biden said. He would have asked all the right questions and swiftly surmised that blowhard Joe had been laying it on thick. Biden did not really squeeze President Petro Poroshenko to fire Shokin within six hours or lose $1 billion in aid. Shokin was not fired while Biden was in Kiev. He was ousted several weeks later.
As ever, Biden couldn’t leave well enough alone. He can take some credit for harassing Poroshenko on Shokin, but in this, he was far from alone and seems mainly to have been ignored. What actually seems to have gotten the Ukrainian leader’s attention was a threat by Christine Lagarde, managing director of the International Monetary Fund, to pull $40 billion in Western funding — shortly after which Poroshenko called for his longtime pal Shokin’s resignation, though it would be another six weeks before Parliament finally ousted him on March 29, 2016. But Lagarde would not have made her threat unless the Obama administration was on board. It was a team effort, and Biden was on the team, so good for him. But it didn’t happen the way he said it happened.
What’s more, the Rudy of yore would have concluded that, while the Bidens are squalid characters, the U.S. pushed for Shokin’s firing because of his failure to investigate corruption — and quite possibly because of his personal immersion in corruption. Joe Biden did not need to worry about Shokin’s pursuit of Burisma because Shokin was not pursuing Burisma — the investigation was technically open but dormant. As tends to happen in Ukraine, corrupt officials were shielding corrupt oligarchs. Hunter later fed at the trough, as American “consultants” notoriously do in Ukraine, but he was not implicated in Burisma’s financial shenanigans (which British fraud investigators discovered before the company found it expedient to recruit Hunter and his coveted last name).
The Trump Administration Vindicates Biden
All that said, Biden has not only won but gotten a measure of vindication. For that, he can thank Donald Trump — or, at least the Trump administration, since these developments surely rankle the former president. In September 2020 and January 2021, Trump’s Treasury secretary Steve Mnuchin, in conjunction with the State and Justice Departments as well as our spy agencies, designated Giuliani’s top Ukrainian sources as clandestine agents of Russia. That comes on the heels of the Justice Department’s 2019 indictment, in the SDNY, of two Soviet-born American businessmen with whom Giuliani collaborated to dig up dirt on the Bidens in Ukraine.
To be clear, Giuliani is not implicated in the crimes charged against these two men — Lev Parnas and Igor Fruman. They allegedly violated laws governing political donations. But the two were apparently working with shady Ukrainian officials who saw an opportunity to exploit the Trump campaign narrative that then-Vice President Biden had muscled Shokin out to cover up Obama administration and Biden family corruption. They led Giuliani to Ukrainian sources with Russian ties, who echoed these claims, and whom the Trump administration ultimately sanctioned –pursuant to a 2018 executive order by which Trump directed action against foreign interference in U.S. elections.
Justice Department Hardball against Biden’s Political Enemies
That should be the end of this tawdry tale. But it’s not.
Instead, the Justice Department is pursuing the matter as a criminal investigation of Giuliani, reportedly on suspicion that he violated the Foreign Agents Registration Act (FARA). That is why last week, in what appears to be rank prosecutorial excess, SDNY prosecutors had the FBI execute search warrants at Giuliani’s Manhattan apartment and office, looking for communications devices. Not content with that, a similar search warrant was executed at the home of Victoria Toensing, a well-regarded Washington lawyer who was a deputy assistant attorney general in the Reagan Justice Department. Toensing and her husband Joe DiGenova — who is also her law partner, and formerly the U.S. attorney for the District of Columbia — worked with Giuliani on some aspects of the pro-Trump effort in Ukraine.
It is baffling that Garland’s Justice Department would approve such heavy-handed, constitutionally offensive tactics. While searching a lawyer’s premises is permissible under dire circumstances if there is probable cause of a serious crime, the Justice Department frowns on it because it necessarily violates the constitutional rights of the lawyer’s clients. Most of those clients will have nothing to do with the case under investigation, yet their privileged communications are seized by federal investigators to be scrutinized by prosecutors. It is cold comfort to them that the “taint team” of prosecutors who screen the communications won’t share them with the “investigative team” — all they know is that the government has grabbed their sensitive information, which the Constitution is supposed to shield from the government.
If there is a viable alternative method of getting the information sought, DOJ generally will not authorize a U.S. attorney’s office to seek a warrant that empowers a federal agent to rifle through the lawyer’s files and devices. During the Hillary Clinton emails scandal, for example, the FBI and DOJ never searched the offices of Clinton’s lawyers, even though they were hoarding on her behalf thousands of emails that were rightfully government property, some of which were known to contain classified information. The Justice Department politely negotiated with Clinton’s lawyers, who were permitted to hand over what investigators wanted rather than having their homes and offices raided.
In Giuliani and Toensing’s cases, we are talking about lawyers who’ve been trusted with government security clearances. They would have honored subpoenas to produce to a grand jury whatever materials the Justice Department wanted (although they would appropriately have fought in court to protect any privileged client communications — litigation the DOJ should have welcomed). Giuliani’s well-regarded lawyer, Robert Costello, has represented that Giuliani offered to submit to an interview by prosecutors — but they refused because they didn’t want to explain what they are investigating.
There was no reason for the Biden Justice Department to proceed this way. More to the point, there is no reason to proceed at all.
The Justice Department should never investigate the president’s political opposition in the absence of strong evidence that a truly serious crime has been committed. One might have hoped the Obama/Biden administration’s “Collusion with Russia” debacle would have brought that lesson home. FARA, which requires Americans who work on behalf of foreign interests to register with DOJ as foreign agents, is not a serious crime. As I’ve noted previously, the Justice Department prosecuted it only seven times (and only three times successfully) in the half-century before it was pretextually used in Russiagate to probe the Trump campaign — a probe in which not a single “suspect” was found to be acting as an agent of Russia.
The scrutiny of Giuliani under FARA bears the hallmarks of a constitutionally offensive selective prosecution of a political critic of the president. (Toensing says she has been advised that she is not a target of the SDNY investigation — which makes the search of her residence all the more outrageous.)
FARA Case Centers on Removal of Former Ambassador
Parnas and Fruman were consulting with Yuriy Lutsenko, Shokin’s successor in the Ukrainian chief prosecutor’s office. Lutsenko had a toxic relationship with U.S. ambassador Marie Yovanovitch — a career diplomat appointed to the post by Obama in 2016, and initially retained by the Trump State Department. Yovanovitch says that she aggressively pushed Lutsenko on anti-corruption. Other knowledgeable people vouch for her, and her version of events is consistent with a constant American government admonition to Ukraine since the 2014 Euromaidan revolt.
Lutsenko, however, chafed at Yovanovitch’s hectoring. The Ukrainians wanted Yovanovitch out. Because she was an Obama holdover, they perceived an opportunity to frame her as someone who was undermining Trump and covering up Obama-era malfeasance, particularly by the Bidens.
Parnas and Fruman led Giuliani to Lutsenko, Shokin, and other sources who had various motives to claim that Yovanovitch was an obstacle. Based on this dubious information, Giuliani prevailed on President Trump to remove Yovanovitch. She vehemently denied the claims against her, and no solid evidence supporting them ever surfaced. (If credible evidence had existed, Republicans would presumably have confronted Yovanovitch with it when she testified before the House in Trump’s first impeachment case). Government officials who’d worked with Yovanovitch were effusive in praising her.
Even with something that has been as thoroughly aired as recent American involvement in Ukraine, investigators know some things we do not. That said, prosecutors seem to be theorizing that, in urging Trump to oust Yovanovitch, Giuliani was acting as an agent of Ukrainian officials (and, derivatively, Russian intelligence), though he had not registered as an agent of Ukraine under FARA.
If that is the essence of the case, it is specious.
Deride Giuliani all you want for crediting highly suspect sources — you’ll get no argument from me. But he was working for Trump, not for Ukrainian officials. Was he also trying to make money in Ukraine? Yes . . . but Biden apologists should hardly have a problem with that. In any event, FARA has an exemption for legal work — and it need not be admirable legal work to qualify. Moreover, Giuliani shared the information he was given with the president, the Justice Department, and the State Department.
For FARA purposes, the fact that the information was dubious is beside the point; the Trump administration was aware of what Giuliani was doing and from whom he was getting information. In fact, the Trump administration was so aware of Giuliani’s sources that it investigated them and ended up sanctioning several of them for peddling Russian disinformation.
The Wages of a Politicized Prosecution
Can it possibly be that Garland, a distinguished former federal appellate judge, is missing the big picture here?
Put the SDNY investigation aside for a moment. As things stand, President Biden can triumphantly argue that the Trump campaign’s claims that he was guilty of corruption in Ukraine were based on Russian disinformation. The Trump administration, furthermore, has left Giuliani exposed. Though his name is not mentioned in the two rounds of sanctions against Ukrainians, it could not be clearer that Giuliani’s sources have been shredded, and Ambassador Yovanovitch has been vindicated. And again, the sanctioning of these Ukrainians as Russian operatives was spearheaded by the Trump Treasury Department, in combination with Trump national-security officials from other departments. Giuliani will never be able to say that this was a politicized attack on him by Democrats.
That is, he will never be able to say that as long as there is no politicized prosecution by the Biden Justice Department.
If Garland allowed the SDNY to proceed with a FARA case against Giuliani, it would be a disaster. Giuliani is not a wallflower. He would defend himself vigorously. As is already apparent, his pitch would be that Biden’s administration, in banana-republic fashion, is using the Justice Department to punish political opponents while ignoring what he’d describe as the corruption and criminality of the Biden family — particularly Hunter.
On this, Giuliani would have a lot to work with. No, Biden did not have Shokin fired to protect Hunter. But Hunter’s Burisma arrangement was corrupt — ethically if not criminally. It was also part of a years-long pattern in which Biden family members monetized the now-president’s political influence, with Joe Biden, at best, turning a blind eye. There is, furthermore, evidence that former Vice President Biden met with at least one Burisma executive at Hunter’s request, and that Hunter got Burisma unusual access to Obama officials so that the company could plead its case.
While the Treasury Department sanctions indicate that some Giuliani sources were doing the Kremlin’s bidding, Hunter Biden’s laptops are palpably not Russian disinformation. Moscow did not make Hunter take millions of dollars from Burisma and from businesses tied to the Chinese Communist Party. Moscow did not produce the witness testimony and paper trail that says a 10-percent slice of Hunter’s China haul was earmarked for Joe Biden. Moscow did not make Hunter conceal his drug problems on a federal firearms background check. Moscow did not make Hunter engage in the hijinks stored in his hard drives, which make for blackmail fodder.
That is just some of what the Biden administration could look forward to if the Justice Department were to go down this foolish path.
And it bears stressing: Quite apart from the Justice Department’s long history of not treating them as crimes, FARA violations are hard to prove. If Giuliani were charged, there’s a good chance he would be acquitted. That would undercut the political claims about Russian disinformation and Ukrainian corruption that the Biden administration would otherwise be in a position to make.
Worst of all, a Giuliani prosecution would convince Trump supporters, along with other Republicans and conservatives, that for all his malarkey about unifying the country, President Biden is committed to fortifying the two-tiered justice system: The earth is scorched to prosecute Republicans, while Democrats get a pass. This will further fuel our combustible politics and ensure that the next Republican administration is pressured to exploit the Justice Department as a political weapon against Democrats.
President Biden is incorrigible. With his ample record of not knowing when to leave well enough alone, he probably doesn’t know better. Merrick Garland is supposed to know better.
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