Jack Smith’s Team Grilled Witnesses About Rudy
Giuliani’s Drinking
The special counsel’s interest in Rudy’s drinking
could play a role in undermining one of Trump’s key legal defenses
BY ASAWIN
SUEBSAENG, ADAM RAWNSLEY
AUGUST 29,
2023
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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