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Special Counsel Jack Smith’s office has repeatedly grilled witnesses about Rudy Giuliani’s drinking on and after election day, investigating whether Donald Trump was knowingly relying on an inebriated attorney while trying to overturn a presidential election.
In their questioning of multiple witnesses, Smith’s team of federal investigators have asked questions about how seemingly intoxicated Giuliani was during the weeks he was giving Trump advice on how to cling to power, according to a source who’s been in the room with Smith’s team, one witness’s attorney, and a third person familiar with the matter.
The special counsel’s team has also asked these witnesses if Trump had ever gossiped with them about Giuliani’s drinking habits, and if Trump had ever claimed Giuliani’s drinking impacted his decision making or judgment. Federal investigators have inquired about whether the then-president was warned, including after Election Night 2020, about Giuliani’s allegedly excessive drinking. They have also asked certain witnesses if Trump was told that the former New York mayor was giving him post-election legal and strategic advice while inebriated.
Furthermore, the special counsel’s office has probed how drunk witnesses and others believed Giuliani to be during specific and consequential moments of the tumultuous Trump-Biden presidential transition. Investigators asked for details that showed precisely how these witnesses knew firsthand the attorney was drinking while counseling Trump on subverting and overturning the 2020 presidential election.
Federal prosecutors often aren’t interested in investigating mere alcohol consumption. But according to lawyers and witnesses who’ve been in the room with special counsel investigators, Smith and his team are interested in this subject because it could help demonstrate that Trump was implementing the counsel of somebody he knew to be under the influence and perhaps not thinking clearly. If that were the case, it could add to federal prosecutors’ argument that Trump behaved with willful recklessness in his attempts nullify the 2020 election — by relying heavily on a lawyer he believed to be working while inebriated, and another who he bashed for spouting “crazy” conspiracy theories that Trump ran with anyway.
And if federal prosecutors were to make this argument in court, it could undermine Trump and his legal team’s “advice of counsel” defense. To avoid legal consequences or even possible prison time, the ex-president is already wielding this legal defense to try to scapegoat lawyers who advised him on overturning the election — even though these attorneys were only acting on Trump’s behalf, or doing what Trump had instructed them to do.
“In order to rely upon an advice of counsel defense, the defendant has to, number one, have made full disclosure of all material facts to the attorney,” explains Mitchell Epner, a former Assistant United States Attorney for the District of New Jersey. “That requires that the attorney understands what’s being told to them. If you know that your attorney is drunk, that does not count as making full disclosure of all material facts.”
Defendants looking to rely on that defense also have to have “reasonably followed the attorney’s recommended course of conduct in good faith,” according to Epner. “Now if, for example, Trump was getting two sets of advice from an attorney: one before 4 p.m. and when the attorney hadn’t been drinking and a second, much more aggressive set of advice after 4 p.m., when he had been drinking and this was a pattern, it would not be reasonable to rely on the drunk advice.”
Some witnesses told Smith’s team that they saw Giuliani consuming significant quantities of alcohol; some told the special counsel’s office that they could clearly smell alcohol on Giuliani’s breath, including on election night, and that they noticed distinct changes in his demeanor from hours prior, the sources tell Rolling Stone.
Some have already told investigators that they were directly aware of moments when Trump had talked to others about Giuliani’s drinking, and that Trump spoke negatively about his then-top lawyer’s alcohol consumption. (Trump is known for being a longtime teetotaler.)
The special counsel’s office declined to comment on this story on Tuesday morning. A Trump spokesperson did not immediately respond to requests for comment.
In a statement to Rolling Stone, Giuliani spokesperson Ted Goodman wrote that “One should always question a story that is completely reliant on anonymous sources. This false narrative by nameless sources has been contradicted by on-the-record witnesses.” Last year, the former New York City mayor brought his friend and former business partner Roy Bailey onto his podcast, where he claimed Giuliani had been sober on election night 2020. “I was with you that night and you had nothing to drink. You were all business.”
Giuliani himself has repeatedly and vehemently denied allegations that he was drunk when he encouraged Trump, against the express wishes of some of the then-president’s senior aides, to falsely declare victory on Election Night 2020. The former New York City mayor has also pushed back on claims that his drinking contributed to his shift in public image from post-9/11 “America’s Mayor” to raging Trumpist. “I’m not an alcoholic,” Giuliani told NBC New York in 2021. “I probably function more effectively than 90 percent of the population.”
None of this stopped claims of his public drunkenness from entering the public record, in the form of another high-stakes, wide-ranging investigation into the Jan. 6 Capitol riot and Trump’s efforts to cling to power.
Last year, when the House select committee probing the Jan. 6 attack held public hearings, the panel aired video clips of depositions of Trump brass, which included senior Trump adviser Jason Miller telling congressional investigators: “I think the mayor was definitely intoxicated, but I do not know his level of intoxication when he spoke with the president” on Election Night.
When these clips went viral, Giuliani angrily responded in a tweet that he “REFUSED all alcohol that evening,” and that he was “disgusted and outraged at the out right lie.”
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