On the night of August 9, 1997, the police were called and several officers from the 70th Precinct were dispatched to the scene where Abner Louima and other men had got involved in a fight between two females in Club Rendez-Vous, a popular nightclub in East Flatbush, Brooklyn. Police, supporters, and various people all became involved in the fight outside the club. Police officers Justin Volpe, Charles Schwarz, Thomas Bruder, and Thomas Wiese, and others responded to the scene. In the ongoing altercation, Volpe said that Louima had attacked him. Louima was charged with disorderly conduct, obstructing government administration, and resisting arrest. Later, Volpe admitted his accusation about Louima being his assailant was false.
On the ride to the station, the arresting officers beat Louima with their fists, nightsticks, and hand-held police radios. On arriving at the station house, they had Louima strip-searched and put in a holding cell. The beating continued later, culminating with Louima being sexually assaulted in a bathroom at the 70th Precinct station house in Brooklyn. Volpe kicked Louima in the testicles, and while Louima’s hands were cuffed behind his back, he first grabbed onto and squeezed his testicles and then sexually assaulted him with a broken broomstick. According to trial testimony, Volpe walked through the precinct holding the bloody, excrement-stained instrument in his hand, bragging to a police sergeant that he “took a man down tonight.”
Louima’s teeth were also badly damaged in the attack when the broom handle was jammed into his mouth. He testified that a second officer in the bathroom helped Volpe in the assault but could not positively identify him. The identity of the second attacker became a point of serious contention during the trial and appeals. Louima also initially claimed that the officers involved in the attack called him a racial slur and shouted, “This is Giuliani-time” during the beating.
I don’t doubt it for an instant. Rudy Giuliani is even more repellent and loathsome than the above story indicates. The reason the NYPD Emergency Command Center was located in the World Trade Center? So that Rudy could sneak out with his secretary and have a quick ‘nooner’ at lunch. Yes sir, that’s America’s Mayor.
His recent japes and antics have been hard to miss unless you watch only Cartoons and ‘Tween Comedies as I do so I’ll assume a certain familiarity for the purposes of this piece which is to draw attention to a little “thought experiment” by Barbara McQuade and Joyce Vance, both former U.S. Attorneys.
United States of America v. Rudolph W. Giuliani
by Barbara McQuade and Joyce Vance, Just Security
October 24, 2019
While the Department of Justice’s Office of Legal Counsel has issued legal opinions that a sitting president cannot be indicted, there is no similar prohibition on indicting a president’s personal lawyer or other potential co-conspirators involved in committing a federal crime. Based on facts already in the public record, we believe that Rudolph Giuliani could be indicted now for conspiracy to interfere with the fair administration of elections, conspiracy to commit bribery, and contempt of Congress. Below is what an indictment of Giuliani might look like if it were drafted today.
It’s important to note that we are, to some degree, speculating here. We are considering charges that could be brought against Giuliani, using publicly available information. Prosecutors obviously don’t do this. They use only evidence that they are confident is correct and that they believe will be admissible in court. And their sense of the evidence will be more nuanced that what is publicly available. Nonetheless, with so much information now available, it is helpful to understand the seriousness of Giuliani’s conduct by seeing how it lines up to the crimes proscribed by the federal criminal code and whether there is evidence of criminality in what Ambassador Bill Taylor called the “irregular channel>” for conducting foreign policy in Ukraine that involved Giuliani and others. (Taylor, a former U.S. Ambassador to Ukraine, currently heads the U.S. embassy in Ukraine as Chief of Mission.)
The three counts we outline represent just the crimes that could be proven by the public record alone. No doubt, if Giuliani is under investigation, prosecutors would want to probe additional potential crimes relating to his role, if any, in the recent campaign finance scheme charged against his associates Lev Parnas and Igor Fruman. It is entirely possible, but not yet clear, that some or all of those counts could be superseded to add Giuliani as a defendant. Prosecutors would also want to consider whether Giuliani was acting as an unregistered foreign agent in violation of the law when, as reported, he asked then-Secretary of State Rex Tillerson to intervene in the criminal prosecution of Reza Zarrab, a Turkey-based businessman, for money laundering and violation of U.S. sanctions on Iran.
Of course, a grand jury investigation related to the allegations we focus on here could uncover additional aggravating or mitigating facts that would inform potential charges against Giuliani. Prosecutors would likely use grand jury subpoenas and court orders to obtain Giuliani’s bank records and income tax returns to identify his sources of income and movement of money. Prosecutors would also interview individuals with knowledge of Giuliani’s activity, perhaps including some of the same former and current State Department officials who have been testifying before Congress.
In addition, prosecutors could offer cooperation deals to Parnas and Fruman, as well as to their less visible co-defendants David Correia and Andrey Kukushkin. If they were to promise to plead guilty to their crimes and provide truthful and comprehensive information, prosecutors could offer to make that information known to the sentencing judge and recommend a reduction in their sentences. Prosecutors would then work to corroborate the testimony of the cooperators, whose testimony is subject to skepticism because of the benefit they receive in exchange. If their testimony can be supported by the testimony of other witnesses or documents, such as phone or bank records, then they could be used as important narrators to the case that is presented at trial against Giuliani.
Only after the entire investigation of Giuliani is complete would prosecutors decide whether to charge, and if so, which violations to include in an indictment. We do so here without the benefit of facts known only to investigators and protected by grand jury secrecy rules. There could be mitigating facts or defenses that are not publicly known that would cause us to decline to file charges. And, as with any indictment, a defendant is presumed innocent until he is proven guilty at trial beyond a reasonable doubt.
When making charging decisions, prosecutors ask not only whether a crime has been committed, but whether a substantial federal interest would be advanced by filing charges. We believe that the charges contained here represent a substantial federal interest. An individual who conspires to inject foreign interference into a U.S. election attacks the very heart of democracy. Our laws prohibit foreign influence in our elections because our founding fathers believed that only American citizens should decide who holds public office in the United States, and we recognize that foreign governments and their citizens act in their own interests, not ours. Criminal cases are prosecuted for several reasons, including deterring illegal conduct, promoting respect for the rule of law, and protecting public safety. A prosecution here would advance all of these important goals.
A few observations on the charge for contempt of Congress deserve mention. Giuliani’s refusal to comply with a subpoena for documents, which was issued by the three House Committees conducting the impeachment inquiry, is a criminal offense. In a letter to the Committees, Giuliani stated that he would not comply with the subpoena because it is part of an “unconstitutional, baseless and illegitimate ‘impeachment inquiry.’” Witnesses may challenge the scope of a subpoena as harassing, oppressive or overly broad by filing a motion to quash in court. They may not simply ignore the subpoena and defy Congress’s authority as one of three co-equal branches of government. The Constitution gives the power of impeachment to the House, and allows it to fashion its own rules for handling impeachment. There is no requirement that the full House take a vote before it may begin an impeachment inquiry, and the House has the authority to investigate any matter on which it may act, including impeachment. Giuliani’s conduct violates the federal criminal statute prohibiting witnesses from defying subpoenas issued by Congress or its committees. A subpoenaed witness before Congress can no more ignore a subpoena than can a witness in a federal trial. To permit individuals to selectively ignore such legal processes because they don’t want to comply, no matter who they are and who they represent, is a slippery slope to a lawless society.
However, before a U.S. Attorney may charge a witness with contempt of Congress, the contempt statute requires the completion of certain technical steps. The Committees must report the failure of the witness to comply with the subpoena to the House and the Speaker of the House, who must then certify the statement of facts regarding the failure to comply to the U.S. Attorney for the District of Columbia.
Two final thoughts about the form of the mock indictment that follows.
If this were an actual indictment, many of the names would be replaced with generic identifiers, such as Candidate-1 or Company-A. The Justice Department requires this practice to protect the reputations of individuals and entities that are not charged with any crimes. A jury is told the identities of these individuals and entities at trial. We have left the names in the indictment, however, for clarity for readers. We refer to President Donald Trump as Individual-1, an unindicted co-conspirator.
At paragraph 2, we describe Giuliani as an agent as well as an attorney for Individual-1 to make it clear that not all of their communications will be protected by the attorney-client privilege. This privilege is limited to communications between a lawyer and client for the purposes of obtaining legal advice, and does not protect communications regarding an ongoing scheme to commit a crime or fraud. Nor does it protect communications that have been divulged to others.
They follow with a draft of the formal document in the proper format but the typography is tricky on a computer with a proportionally spaced font though it’s a piece of cake on a typewriter. If you’re interested in that sort of thing I invite you to click through.
