To save himself, the President’s former lawyer might have to spill damning secrets.
by Selvam Canagaratna
“You don’t need to be a lawyer to know that when federal agents knock on your door with a search warrant and seize your electronic devices, you’re in big trouble.” wrote Renato Mariotti, Legal Affairs Columnist for Politico magazine. “Ever since that happened to former Donald Trump lawyer Rudy Giuliani on Wednesday, he has tried to downplay the peril he is in, saying whatever evidence is on his phones proves that “the President and I…are innocent.”
But it sure looks like Rud y has a long legal battle ahead of him, and his best defense will likely put him at odds with his former boss. If Trump doesn’t voluntarily protect his one-time counsel, Giuliani may have no choice but to point the finger at his former client. (Their relationship was tested in January when Trump reportedly refused to pay Giuliani for his unsuccessful work trying to overturn the November election results.)
The saga of one-time Trump legal fixer Michael Cohen, who turned on his boss after he pleaded guilty for election finance violations and fraud, is instructive here. Despite Cohen’s assertion that Trump knew of the violations, the President was protected from prosecution while he was in office under Department of Justice guidelines. Now that Trump is a civilian, those guidelines do not protect him, and he has to be concerned about his own liability going forward.
There can be no question that the execution of a search warrant at Giuliani’s residence is a serious step that indicates the criminal investigation against him is far along. Federal prosecutors can’t obtain a search warrant based on a hunch or mere suspicion. They had to present substantial evidence to a federal judge that there is good reason to believe that a federal crime was committed and that evidence of that federal crime was located in Giuliani’s apartment and his electronic devices. It’s significant a judge was persuaded they met that standard.
For that reason, prosecutors likely have a lot of the evidence they need already. During my time as a federal prosecutor, when I sought a search warrant for a subject’s electronic devices, typically I had already obtained some of the subject’s communications or electronic documents from other sources such as co-operators, subpoenas or prior search warrants. I used that evidence to persuade a judge that those communications would also be found on the devices. Even though prosecutors have some communications prior to obtaining electronic devices, the devices can contain more data, including deleted messages, metadata and location information.
In this particular case, one can trust the evidence was solid and substantial given the significant internal scrutiny that this case would receive within the Justice Department. The criminal investigation of any lawyer is a sensitive matter due to the complexities caused by attorney-client privilege, and the DOJ takes special care when investigating a criminal defense attorney, to ensure that the department does not appear to be targeting opponents. Obviously, obtaining a search warrant for the residence and devices of the personal lawyer of the former President would receive even more scrutiny from senior department leadership.
Curiously, the crime for which Giuliani is under investigation — violating the Foreign Agents Registration Act, which requires agents of foreign governments who lobby US officials to disclose their relationship with the foreign government — has been prosecuted only rarely over the decades. But FARA prosecutions spiked during the Trump administration, including the high-profile conviction of former Trump campaign chair Paul Manafort and former Republican finance chair Elliott Broidy. (An associate of former Trump national security adviser Michael Flynn was also indicted for a FARA violation, but the conviction was later overturned.) That group of FARA prosecutions led President Joe Biden to vow on the campaign trail to increase the use of FARA if he were elected, saying there should be no lobbying on behalf of foreign governments outside regular diplomatic channels.
The investigation reportedly centers around Giuliani’s efforts to lobby the Trump administration on behalf of Ukrainian officials and oligarchs who were also helping him dig up dirt on then-candidate Biden and his family during the campaign. At issue, as well, are Giuliani’s efforts to persuade Trump to oust the ambassador to Ukraine, Marie Yovanovitch, whose anti-corruption work was viewed hostilely by those same Ukrainian officials. If Giuliani’s efforts to push Trump to fire Yovanovitch were done on behalf of Ukrainian officials, that could be the sort of foreign lobbying activity that he should have disclosed.
Thus far, Giuliani has tried to hide behind mere technicalities, arguing that he didn’t have a written contract with a foreign official or oligarch. He won’t get away with that in court. What matters is whether he was an agent of a foreign government, not whether his relationship with that foreign government was memorialized in writing. You can’t avoid FARA requirements by failing to write down the details of your arrangement with a foreign government.
Giuliani’s work in Ukraine has been the subject of controversy for two years and was central to the first impeachment probe of Trump’s pressure on the new Ukrainian president. But, according to The New York Times, senior DOJ political appointees in the Justice Department repeatedly tried to block the search warrants, which suggests that the department has had the evidence it needs against Giuliani for some time.
Those prior efforts to slow down the investigation won’t help Giuliani now. If anything, they may eventually work against Giuliani if it is shown that they were done at his urging. Giuliani’s foolish public statements (he claimed erroneously that search warrants can only be issued if there is a fear the evidence will be destroyed) won’t help him either if he is ultimately indicted. At that point, he will need to adopt a defense strategy that may put him at odds with his former client.
Giuliani’s defense will likely be that he was acting completely at Trump’s direction and that his efforts on behalf of the officials and oligarchs was done to curry favour with them on Trump’s behalf, and was done at Trump’s behest and knowledge. Purely from a perspective of trial strategy, Giuliani’s best defense would include testimony from the former President that he knew everything Giuliani was doing and approved of every action he took. That would permit Giuliani’s defense team to argue that since he was ultimately advancing Trump’s interests, he was actually working on behalf of the United States, not Ukrainian oligarchs.
Unfortunately for Giuliani, Trump is not known for sticking his neck out for disgraced former aides, particularly if doing so would involve personal embarrassment or potential liability. Given how Trump distanced himself from former lawyer Michael Cohen when he faced similar peril, it is hard to imagine the former President taking an oath to tell the truth and subjecting himself to withering cross-examination that could embarrass him at best or expose him to potential liability at worst. (Trump’s record of lying under oath in civil suit depositions is well documented.)
The only surefire way for Trump to avoid testimony in the trial of Giuliani would be to take the Fifth, but Trump has repeatedly noted that taking the Fifth makes you look guilty. The only way for him to get out of testifying is for him to suggest that he didn’t really know what Giuliani was doing and didn’t approve of his activities. That would make him worthless for Giuliani as a witness and force Giuliani to point the finger at Trump to save himself. The five-year sentence Manafort received for conspiring to violate FARA gives Giuliani ample incentive to do so, especially since he knows Trump cannot pardon him any longer.
When a lawyer, particularly a famous former federal prosecutor like Giuliani, faces time in prison, the incentive to reduce that sentence is significant. Just like Michael Cohen, Giuliani will have every incentive to help federal prosecutors if it could potentially reduce his prison sentence. That could make the Giuliani prosecution far more consequential than it appears at first glance, given his role in everything from the defense of Trump’s impeachment to the January 6 insurrection.
Without Trump’s protection or financial support, Giuliani’s loyalty would seem to have a limited shelf life.
TNGlive relieving boredom
Yes, indeed, the going is tough for everyone, due to the pandemic, and performers seem to be very badly hit, due to the lockdowns.
Our local artistes are feeling the heat and so are their counterparts in most Indian cities.
However, to relieve themselves of the boredom, while staying at home, quite a few entertaining Indian artistes, especially from the Anglo-Indian scene, have showcased their talents on the very popular social media platform TNGlive.
And, there’s plenty of variety – not just confined to the oldies, or the current pop stuff; there’s something for everyone. And, some of the performers are exceptionally good.
Lynette John is one such artiste. She hails from Lucknow, Uttar Pradesh, and she was quite impressive, with her tribute to American singer Patsy Cline.
She was featured last Thursday, as well (June 10), on TNGlive, in a programme, titled ‘Love Songs Special,’ and didn’t she keep viewers spellbound – with her power-packed vocals, and injecting the real ‘feel’ into the songs she sang.
What an awesome performance.
Well, if you want to be a part of the TNGlive scene, showcasing your talents, contact Melantha Perera, on 0773958888.
Supreme Court on Port City Bill: Implications for Fundamental Rights and Devolution
The determination of the Supreme Court on the Colombo Port City Economic Commission Bill was that as many as 26 provisions of the Bill were inconsistent with the Constitution and required to be passed by a two-thirds majority in Parliament. The Court further determined that nine provisions of the Bill also required the approval of the people at a referendum.
Among the grounds of challenge was that the Bill effectively undermined the sovereignty and territorial integrity of Sri Lanka and infringed on the sovereignty of the people. It was argued that several provisions undermined the legislative power of the People reposed on Parliament. Several provisions were challenged as violating fundamental rights of the People and consequently violating Article 3, read with Article 4(d) of the Constitution. Another ground of challenge was that the Bill contained provisions that dealt with subjects that fall within the ambit of the Provincial Council List and thus had to be referred to every Provincial Council for the expression of its views thereon as required by Article 154G(3).
Applicable constitutional provisions
Article 3 of our Constitution recognises that “[i]n the Republic of Sri Lanka, sovereignty is in the People and is inalienable”. Article 3 further provides that “Sovereignty includes the powers of government, fundamental rights and the franchise”. Article 3 is entrenched in the sense that a Bill inconsistent with it must by virtue of Article 83 be passed by a two-thirds majority in Parliament and approved by the people at a referendum.
Article 4 lays down the manner in which sovereignty shall be exercised and enjoyed. For example, Article 4(d) requires that “fundamental rights which are by the Constitution declared and recognised shall be respected, secured and advanced by all the organs of government and shall not be abridged, restricted or denied, save in the manner and to the extent hereinafter provided”. Article 4 is not mentioned in Article 83. In its determinations on the Eighteenth Amendment to the Constitution Bill, 2002 and the 19th Amendment to the Constitution Bill, 2002, a seven-member Bench of the Supreme Court noted with approval that the Court had ruled in a series of cases that Article 3 is linked up with Article 4 and that the said Articles should be read together. This line of reasoning was followed by the Court in its determination on the 20th Amendment to the Constitution Bill.
Under Article 154G(3), Parliament may legislate on matters in the Provincial Council List but under certain conditions. A Bill on a matter in the Provincial Council List must be referred by the President, after its publication in the Gazette and before it is placed in the Order Paper of Parliament, to every Provincial Council for the expression of its views thereon. If every Council agrees to the passing of the Bill, it may be passed by a simple majority. But if one or more Councils do not agree, a two-thirds majority is required if the law is to be applicable in all Provinces, including those that did not agree. If passed by a simple majority, the law will be applicable only in the Provinces that agreed.
Violation of fundamental rights and need for a referendum
Several petitioners alleged that certain provisions of the Port City Bill violated fundamental rights. The rights referred to were mainly Article 12(1)—equality before the law and equal protection of the law, Article 14(1)(g)—freedom to engage in a lawful occupation, profession, trade, business or enterprise— and Article 14(1)(h)—freedom of movement. Some petitioners specifically averred that provisions that violated fundamental rights consequently violated Articles 3 and 4 and thus needed people’s approval at a referendum.
The Supreme Court determined that several provisions of the Bill violated various fundamental rights and thus were required to be passed by a two-thirds majority in Parliament. The question of whether the said provisions consequently violated Article 4(d) and thus Article 3 and therefore required the approval of the People at a referendum was not ruled on.
The Essential Public Services Bill, 1979 was challenged as being violative of both Article 11 (cruel, degrading or inhuman punishment) and Article 14. Mr. H.L. de Silva argued that a Bill that violates any fundamental right is also inconsistent with Article 4(d) and, therefore, with Article 3. The Supreme Court held that the Bill violated Article 11 but not Article 14. Since a Bill that violates Article 11 has, in any case, to be approved at a referendum as Article 11 is listed in Article 83, the Court declined to decide on whether the Bill offended Article 3 as well, as it “is a well-known principle of constitutional law that a court should not decide a constitutional issue unless it is directly relevant to the case before it.”
A clear decision on the issue came about in the case of the 18th Amendment to the Constitution Bill; a seven-member Bench of the Supreme Court held that the exclusion of the decisions of the Constitutional Council from the fundamental rights jurisdiction of the Court was inconsistent with Articles 12 (1) and 17 (remedy for the infringement of fundamental rights by executive action) and consequently inconsistent with Article 3, necessitating the approval of the Bill at a referendum.
When the 20th Amendment to the Constitution Bill sought to restore the immunity of the President in respect fundamental rights applications, the Supreme Court determined that the “People’s entitlement to remedy under Article 17 is absolute and is a direct expression of People’s fundamental rights under Article 3 of the Constitution.”
In the case of the Port City Bill, however, the Supreme Court only determined that certain provisions of the Bill violated fundamental rights and thus required a two-thirds majority, but did not go further to say that the offending provisions also required approval of the people at a referendum.
Perhaps, the Court took into consideration the Attorney-General’s assurance during the hearing that the impugned clauses would be amended at the committee stage in Parliament.
However, Parliament is not bound by the Attorney-General’s assurances. In the absence of a clear determination that the clauses concerned required a referendum as well, Parliament could have passed the clauses by a two-thirds majority. The danger inherent in the Supreme Court holding that a provision of a Bill violates fundamental rights and requires a two-thirds majority but makes no reference to the requirement of a referendum is that a government with a two-thirds majority is free to violate fundamental rights, and hence the sovereignty of the People by using such majority. It is respectfully submitted that the Court should, whenever it finds that a provision violates fundamental rights, declare that Article 3 is also violated and a referendum is necessary, as it did in the cases mentioned.
The need to refer the Bill to Provincial Councils
The Port City Bill had not been referred to the Provincial Councils, all the Provincial Councils having been dissolved. The Court, following earlier decisions, held that in the absence of constituted Provincial Councils, referring the Bill to all Provincial Councils is an act which could not possibly be performed.
In the case of the Divineguma II Bill, the question arose as to the applicability of the Bill to the Northern Provincial Council, which was not constituted at that time. The Court held while the Bill cannot possibly be referred to a Council that had not been constituted, the views of the Governor (who had purported to express consent) could not be considered as the views of the Council. In the circumstances, the only workable interpretation is that since the views of one Provincial Council cannot be obtained due to it being not constituted, the Bill would require to be passed by a two-thirds majority. Although not explicitly stated by the Court, this would mean that if the Bill is passed by a simple majority only, it will not apply in the Northern Province. The Bill was passed in Parliament by a two-thirds majority. The Divineguma II Bench comprised Shirani Bandaranayake CJ and Justices Amaratunga and Sripavan, and it is well-known that the decision and the decision on the Divineguma I Bill cost Chief Justice Bandaranayake her position.
It is submitted that Article 154G (3) has two requirements—one procedural and one substantive. The former is that a Bill on any matter in the Provincial Council List must be referred to all Provincial Councils. The latter is that in the absence of the consent of all Provincial Councils, the Bill must be passed by a two-thirds majority if it is to apply to the whole country. If such a Bill is passed only by a simple majority, it would apply only in the Provinces which have consented.
The Divineguma II determination accords with the ultimate object of Article 154G(3), namely, that a Bill can be imposed on a Province whose Provincial Council has not consented to it only by a two-thirds majority. It also accords with the spirit of devolution.
A necessary consequence of the Court’s determination on the Port City Bill is that it permits a government to impose a Bill on a Provincial Council matter on a “disobedient” Province by a simple majority once the Provincial Council is dissolved and before an election is held. What is worse is that at a time when all Provincial Councils are dissolved, such as now, a Bill that is detrimental to devolution can be so imposed on the entire country. It is submitted that this issue should be re-visited when the next Bill on a Provincial Council matter is presented and the Supreme Court invited to make a determination that accords with the spirit of devolution, which is an essential part of the spirit of our Constitution.
‘Down On My Knees’ inspires Suzi
There are certain songs that inspire us a great deal – perhaps the music, the lyrics, etc.
Singer Suzi Fluckiger (better known as Suzi Croner, to Sri Lankans) went ga-ga when she heard the song ‘Down On My Knees’ – first the version by Eric Guest, from India, then the original version by Freddie Spires, and then another version by an Indian band, called Circle of Love.
Suzi was so inspired by the lyrics of this particular song that she immediately went into action, and within a few days, she came up with her version of ‘Down On My knees.’
In an exclusive chit-chat, with The Island Star Track, she said she is now working on a video, for this particular song.
“The moment I heard ‘Down On My Knees,’ I fell in love with the inspiring lyrics, and the music, and I thought to myself I, too, need to express my feelings, through this beautiful song.
“I’ve already completed the audio and I’m now working on the video, and no sooner it’s ready, I will do the needful, on social media.”
Suzi also mentioned to us that this month (June), four years ago, she lost her husband Roli Fluckiger.
“It’s sad when you lose the person you love but, then, we all have to depart, one day. And, with that in mind, I believe it’s imperative that we fill our hearts with love and do good…always.”
A few decades ago, Suzi and the group Friends were not only immensely popular, in Sri Lanka, but abroad, as well – especially in Europe.
In Colombo, the Friends fan club had a membership of over 1500 members. For a local band, that’s a big scene, indeed!
In Switzerland, where she now resides, Suzi is doing the solo scene and was happy that the lockdown, in her part of the world, has finally been lifted.
Her first gig, since the lockdown (which came into force on December 18th, 2020), was at a restaurant, called Flavours of India, with her singing partner from the Philippines, Sean, who now resides in Switzerland. (Sean was seen performing with Suzi on the TNGlive platform, on social media, a few weeks ago).
“It was an enjoyable event, with those present having a great time. I, too, loved doing my thing, after almost six months.’
Of course, there are still certain restrictions, said Suzi – only four to a table and a maximum crowd of 50.
“Weekends are going to be busy for me, as I already have work coming my way, and I’m now eagerly looking forward to going out…on stage, performing.”
In the meanwhile, Suzi will continue to entertain her fans, and music lovers, on TNGlive – whenever time permits, she said,
She has already done three shows, on TNGlive – the last was with her Filipino friend, Sean.
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