The Giuliani situation is quite different. To the American diplomats who interacted with Ukraine, it was quite clear that the president’s lawyer was in charge of U.S. policy toward that Eastern European nation. Gordon Sondland, the Republican donor whom the president tapped as the U.S. ambassador to the European Union, testified that, in an Oval Office meeting, Trump directed him to ask Giuliani about Ukraine matters. “He just kept saying, ‘Talk to Rudy, talk to Rudy,’” Sondland said.
Congress did not legislate a handoff of foreign-diplomacy power to the president’s personal lawyer. He is not working pursuant to a government contract containing legal remedies for the United States if he breaches the terms of his employment. He did not take an oath of office to uphold and defend the Constitution—unlike members of Congress, who will have to weigh that oath heavily as the evidence bearing on impeachment mounts in the coming weeks. He is not bound by federal conflict-of-interest, transparency, or ethics laws—including the Freedom of Information Act—passed by prior Congresses to ensure that people entrusted with the American populace’s authority to self-govern do their jobs with integrity to the Constitution, the rule of law, and the norms that undergird our system of justice.
David A. Graham: Why hasn’t Trump thrown Rudy Giuliani under the bus?
As Trump’s personal lawyer, Giuliani’s ethical obligation is solely to his client, Donald J. Trump—the individual, not his office. The Ukraine narrative is plain in this regard. Trump’s interests in tarnishing Biden in furtherance of his own reelection bid were at odds with official U.S. policy toward Ukraine. For decades, the United States has supported the democratization of Ukraine against Russian aggression on the rationale that Ukraine is physically situated as a bulwark for a slew of Western European democracies. Unless we are to believe that Giuliani was acting with zero Trumpian collaboration—a logical impossibility that some of Trump’s most stalwart defenders are nevertheless testing out as an alibi for the president—it appears that Giuliani went rogue on Ukrainian foreign policy at Trump’s personal behest.
Past presidents, to be sure, have at times directed private citizens to conduct back-channel diplomacy with foreign governments. During World War II, Franklin D. Roosevelt used Harry Hopkins, a trusted confidant without an official title, as his liaison to other Allied leaders. As William Taylor, a top diplomat in Ukraine, recently testified, “It’s not unusual to ask people outside the government to play a role” in foreign policy, “so long as it’s consistent with and supports the main thrust of U.S. foreign policy.” But Giuliani’s ministrations were at cross-purposes with stated American policy. According to Taylor, “The irregular channel seemed to focus on specific issues, specific cases, rather than the regular channel’s focus on institution building … I think under the influence of Mr. Giuliani … irrespective of whether it helped solve the corruption problem” in Ukraine.