Here’s How Rudy Giuliani’s Push for a Preemptive Pardon Could Backfire

This is the last gasp of Donald Trump’s administration, and that means it’s pardon-seeking time for a subset of America’s felons. Those most likely to be successful, if past is prologue, are those who are supporters of Trump, have some sort of celebrity link, or who had knowledge of but kept quiet about Trump’s misconduct.

One person reportedly seeking a preemptive pardon is none other than Rudy Giuliani. While the president’s personal attorney contested the New York Times report on Tuesday that the two had discussed a pardon as recently as last week—which would mean that the pair furiously fighting the election results are well aware Trump lost the election and will be leaving office next month—he notably didn’t say that he hadn’t discussed a pardon or that he wouldn’t accept one.

Imagine what the old Rudy Giuliani, United States Attorney, crime-buster and thorn in the side of organized crime, would think of the current iteration, a man under investigation by the office he used to lead trying to persuade Trump to save him from the possibility of going to federal prison for his corrupt behavior.

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For one thing, Giuliani would not be a typical pardon subject, because he has not been convicted of or even charged with any federal crimes, at least publicly. That would make a Giuliani pardon preemptive, meaning it would preempt the bringing of any federal charges for the conduct described in the pardon. While legal, such pardons have been historically rare and are somewhat tricky, because the pardon must describe the conduct to be covered without reference to charging documents or statutory language. Trump reportedly has been discussing with aides the possibility of similar pardons for his children and himself.

So why would Giuliani be asking for a preemptive pardon? Well, regardless of the beating Giuliani’s reputation as a supposedly skilled lawyer has taken lately given his performance on Trump’s behalf in their attempts to overturn Joe Biden’s election victory, he’s no dummy when it comes to self-preservation.

Giuliani reportedly has been under investigation by the SDNY U.S. Attorney’s Office for over a year. His close associates, Lev Parnas and Igor Fruman, are awaiting trial on fraud and campaign finance charges, in part over their business “Fraud Guarantee,” which paid Giuliani $500,000 in 2018. Prosecutors may also be scrutinizing Giuliani’s role in eliciting Ukraine’s help in smearing Joe Biden in exchange for the release of military aid, the bribery scheme that led to Trump’s impeachment. In addition, Giuliani’s involvement in the removal of the former U.S. ambassador to Ukraine could be the basis of a charge that Giuliani violated the Foreign Agents Registration Act.

Given this, it probably would have been more surprising to hear that Giuliani was not seeking a pardon protecting him from charges for all of these schemes. After all, the reason that some people would want to avoid a pardon in these circumstances—namely, the reputational damage that would seem to go hand in hand with seeking a pardon to avoid criminal charges—likely does not carry the day with a man who appears to have abandoned his reputation and his principles years ago in service of Trump.

If Giuliani gets a preemptive pardon from Trump, what will it cover? Certainly Giuliani would want coverage for his Ukraine-related conduct and for anything related to his involvement with Fruman and Parnas. Beyond that, it would be very interesting to see what else might make its way into the document, and whether Rudy would try to take a so-called immunity bath by asking Trump to include possibly illegal conduct that is unrelated to these matters, and potentially unrelated to his work for Trump altogether.

One thing that a Trump pardon, no matter how broad, would not do is protect Giuliani from prosecution for state crimes. This means that to the extent illegal conduct by Giuliani is chargeable by both federal and state prosecutors, a Trump pardon only protects Giuliani from the former and not the latter. And, interestingly, unlike the case of Paul Manafort, where state prosecutors charged a case quite similar to the one brought by federal prosecutors only to see it dismissed on double jeopardy grounds, there would be no jeopardy bar in part because Giuliani has not been federally charged.

What might such state-chargeable offenses be? If Giuliani’s dealings with Parnas and Fruman involved fraud on his part, it very well might be chargeable in New York State, and possibly other states as well. And we already know that prosecutors in New York State have demonstrated their interest in pursuing investigations of Trump and others in his orbit, like Manafort, for violations of state law where they may escape federal prosecution due to a pardon. Indeed, state prosecutors may be more eager to bring such a case than a new Biden-appointed attorney general would be, given Biden’s reported preference for avoiding getting mired in investigations of Trump and his allies.

Wouldn’t that be the ultimate irony—to have Giuliani’s play for pardon protection from federal charges that may never come backfire by leading to pardon-proof state charges? I wouldn’t put it past him.

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