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Giuliani’s Legal Trouble Is Trump’s Too

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To save himself, the President’s former lawyer might have to spill damning secrets.

POLITICO magazine

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.

 



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South Africa’s Truth and Reconciliation Commission and what it means for SL

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At the head table (L to R): High Commissioner for Sri Lanka in South Africa Prof. Gamini Gunawardena, State Minister of Foreign Affairs Tharaka Balasuriya and Executive Director LKI Dr. D.L. Mendis.

State circles in Sri Lanka have begun voicing the need for a Truth and Reconciliation Commission (TRC) for the country, on the lines of South Africa’s historic TRC, and the time could not be more appropriate for a comprehensive discussion in Sri Lanka on the questions that are likely to arise for the country as a result of launching such an initiative. There is no avoiding the need for all relevant stakeholders to deliberate on what it could mean for Sri Lanka to usher a TRC of its own.

Fortunately for Sri Lanka, the Lakshman Kadirgamar Institute of International Relations and Strategic Studies (LKI), Colombo, took on the responsibility of initiating public deliberations on what a TRC could entail for Sri Lanka. A well-attended round table forum towards this end was held at the LKI on November 25 and many were the vital insights it yielded on how Sri Lanka should go about the crucial task of bringing about enduring ethnic peace in Sri Lanka through a home-grown TRC. A special feature of the forum was the on-line participation in it of South African experts who were instrumental in making the TRC initiative successful in South Africa.

There was, for example, former Minister of Constitutional Affairs and Communication of South Africa Roelf Meyer, who figured as Chief Representative of the white minority National Party government in the multi-party negotiations of 1993, which finally led to ending apartheid in South Africa. His role was crucial in paving the way for the first democratic elections in South Africa in 1994. Highlighting some crucial factors that contributed towards South Africa’s success in laying the basis for ethnic reconciliation, Meyer said that there ought to be a shared need among the antagonists to find a negotiated solution to their conflict. They should be willing to resolve their issues. Besides, the principle needs be recognized that ‘one negotiates with one’s enemies’. These conditions were met in South Africa.

Meyer added that South Africa’s TRC was part of the country’s peace process. Before the launching of the TRC a peace agreement among the parties was already in place. Besides, an interim constitution was licked into shape by then. The principle agreed to by the parties that, ‘We will not look for vengeance but for reconciliation’, not only brought a degree of accord among the conflicting parties but facilitated the setting-up of the TRC.

Meyer also pointed out that the parties to the conflict acted with foresight when they postponed considering the question of an amnesty for aggressors for the latter part of the negotiations. If an amnesty for perceived aggressors ‘was promised first, we would never have had peace’, he explained.

Meanwhile, Dr. Fanie Du Toit, Senior Fellow of the Institute for Justice and Reconciliation, South Africa, in his presentation said that the restoration of the dignity of the victims in the conflict is important. The realization of ethnic peace in South Africa was a ‘victim-centric’ process. Hearing out the victim’s point of view became crucial. Very importantly, the sides recognized that ‘apartheid was a crime against humanity’. These factors made the South African TRC exercise a highly credible one.

The points made by Meyer and Du Toit ought to prompt the Sri Lankan state and other parties to the country’s conflict to recognize what needs to be in place for the success of an ethnic peace process of their own. A challenge for the Sri Lankan government is to ban racism in all its manifestations and to declare racism a crime against humanity. For starters, is the Lankan government equal to this challenge? If this challenge goes unmet bringing ethnic reconciliation to Sri Lanka would prove an impossible task.

Lest the Sri Lankan government and other relevant sections to the Sri Lankan ethnic conflict forget, reconciliation in South Africa was brought about, among other factors, by truth-telling by aggressors and oppressors. In its essentials, the South African TRC entailed the aggressors owning to their apartheid-linked crimes in public before the Commission. In return they were amnestied and freed of charges. Could Sri Lanka’s perceived aggressors measure up to this challenge? This question calls for urgent answering before any TRC process is gone ahead with.

Making some opening remarks at the forum, State Minister of Foreign Affairs Tharaka Balasuriya said, among other things, that the LKI discussion set the tone for the setting up of a local TRC. He said that the latter is important because future generations should not be allowed to inherit Sri Lanka’s ethnic tangle and its issues. Ethnic reconciliation is essential as the country goes into the future. He added that the ‘Aragalaya’ compelled the country to realize its past follies which must not be repeated.

In his closing remarks, former Minister of Public Works of South Africa and High Commissioner of South Africa to Sri Lanka ambassador Geoffrey Doidge said that Sri Lanka’s TRC would need to have a Compassionate Council of religious leaders who would be catalysts in realizing reconciliation. Sri Lanka, he said, needs to seize this opportunity and move ahead through a consultative process. All sections of opinion in the country need to be consulted on the core issues in reconciliation.

At the inception of the round table, Executive Director, LKI, Dr. D. L. Mendis making some welcome remarks paid tribute to South Africa’s former President Nelson Mandela for his magnanimous approach towards the white minority and for granting an amnesty to all apartheid-linked offenders. He also highlighted the role played by Bishop Desmond Tutu in ushering an ‘Age of Reconciliation’.

In his introductory remarks, High Commissioner for Sri Lanka in South Africa Prof. Gamini Gunawardena said, among other things, that TRCs were not entirely new to Sri Lanka but at the current juncture a renewed effort needed to be made by Sri Lanka towards reconciliation. Sri Lanka should aim at its own TRC process, he said.

During Q&A Roelf Meyer said that in South Africa there was a move away from authoritarianism towards democracy, a democratic constitution was ushered. In any reconciliation process, ensuring human rights should be the underlying approach with the Universal Declaration of Human Rights playing the role of guide. Besides, a reconciliation process must have long term legitimacy.

Dr. Fanie Du Toit said that Bishop Tutu’s commitment to forgiveness made him acceptable to all. Forgiveness is not a religious value but a human one, he said. It is also important to recognize that human rights violations are always wrong.

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Features

Cucumber Face Mask

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*  Cucumber and Aloe Vera

Ingredients

• 1 tablespoon aloe vera gel or juice • 1/4th grated cucumber

Method

Mix the grated cucumber and aloe gel, and carefully apply the mixture on the face and also on your neck.

Leave it on for 15 minutes. Wash with warm water.

* Cucumber and Carrot

Ingredients

• 1 tablespoon fresh carrot juice • 1 tablespoon cucumber paste • 1 tablespoon sour cream

Method

Extract fresh carrot juice and grate the cucumber to get a paste-like consistency. Mix these two ingredients, with the sour cream, and apply the paste on the face.

Leave it on for 15 to 20 minutes. Rinse with lukewarm water. (This cucumber face pack is good for dry skin)

* Cucumber and Tomato

Ingredients

• 1/4th cucumber • 1/2 ripe tomato

Method

Peel the cucumber and blend it with the tomato and apply the paste on your face and neck and massage for a minute or two, in a circular motion.

Leave the paste on for 15 minutes. Rinse with cool water. (This cucumber face pack will give you brighter and radiant skin)

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Features

Christmas time is here again…

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The dawning of the month of December invariably reminds me of The Beatles ‘Christmas Time Is Here Again.’ And…yes, today is the 1st of December and, no doubt, there will be quite a lot of festive activities for us to check out.

Renowned artiste, Melantha Perera, who now heads the Moratuwa Arts Forum, has been a busy man, working on projects for the benefit of the public.

Since taking over the leadership of the Moratuwa Arts Forum, Melantha and his team are now ready to present their second project – a Christmas Fair – and this project, I’m told, is being done after a lapse of three years.

They are calling it Christmas Fun-Fair and it will be held on 7th December, at St. Peter’s Church Hall, Koralawella.

A member of the organizing committee mentioned that this event will not be confined to only the singing of Christmas Carols.

“We have worked out a programme that would be enjoyed by all, especially during this festive season.”

There will be a variety of items, where the main show is concerned…with Calypso Carols, as a curtain raiser, followed by Carols sung by Church choirs.

They plan to include a short drama, pertaining to Christmas, and a Comedy act, as well.

The main show will include guest spots by Rukshan Perera and Mariazelle Gunathilake.

Melantha Perera: Second project as President of the Moratuwa Arts Forum

Although show time is at 7.30 pm, the public can check out the Christmas Fun-Fair scene, from 4.30 pm onwards, as there will be trade stalls, selling Christmas goodies – Christmas cakes and sweets, garment items, jewellery, snacks, chocolate, etc.

The fair will not be confined to only sales, as Melantha and his team plan to make it extra special by working out an auction and raffle draw, with Christmas hampers, as prizes.

Santa and ‘Charlie Chaplin’ will be in attendance, too, entertaining the young and old, and there will also be a kid’s corner, to keep thembusy so that the parents could do their shopping.

They say that the main idea in organizing this Christmas Fun-Fair is to provide good festive entertainment for the people who haven’t had the opportunity of experiencing the real festive atmosphere during the last few years.

There are also plans to stream online, via MAF YouTube, to Sri Lankans residing overseas, to enable them to see some of the festive activities in Sri Lanka.

Entrance to the Christmas Fun Failr stalls will be free of charge. Tickets will be sold only for the main show, moderately priced at Rs. 500.

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