Opinion

Poor Rudy Giuliani Isn’t Very Clear On How Impeachment Works, Thinks Trump Can Sue Congress In Retaliation

It’s time for today’s edition of “Rudy Giuliani Has Lost His Damn Mind.”  Rudy has taken to the interweb to brag that he’s done some consulting with fancy lawyers, and Democrats should be scared that Donald Trump might sue them.

Geez, I remember when Giuliani was considered a formidable legal mind. Hell, I was proud to be on New York City’s legal staff when he was a mayor who stood up  for things like immigrants’ rights.  But the stuff he’s saying now is next-level lunacy.

Let’s break this insanity down, word by ludicrous word:

We are carefully considering our legal options to seek redress against Congress and individual members…

Before we get into the substance, who is “we”? I know Rudy got used to the spotlight back when he was throwing out the first pitch in every stadium that would have him, but there’s no “we” here. There’s Trump. And Trump stands alone as the American President, horrifying though that image may be. Giuliani may be Trump’s chief sycophant, but his primary role with respect to Trump is basically to string together incoherent sound bites for cable news. Giuliani isn’t integral to the Trump + America = Impeachment equation,  no matter how much (or how ironically) he likes to think of himself as “a friend of ours.”

Now let’s talk about these “legal options to seek redress against Congress and individual members.” Giuliani is talking about suing elected officials for doing their official jobs. It appears Rudy’s position is that because Trump has done nothing wrong, investigating and/or impeaching him for perceived wrongdoing is some sort of violation of Trump’s constitutional rights. That’s a lot of bullshit to unpack, so let’s go slowly.

To begin, members of Congress are immune from civil liability based on things they say during official government business. The concept is that a democratic government can’t function properly if everyone is worried they’ll get sued for saying the wrong thing while they’re debating bills or drafting legislation. Usually, we’re talking about liability for defamation here, since that’s the most likely issue to arise as a result of something a Congressman says during a session.

Giuliani, though, suggested on Fox News that the basis for this mysterious liability is that members of Congress have formed a “conspiracy” to deprive Trump of his rights. Perhaps Rudy recalls from his days as a prosecutor that multiple people acting together to commit a crime can be prosecuted for conspiracy.  If we’re following Giuliani’s logic, he believes that Trump has a Constitutional right to be president, and stripping him of that right is somehow illegal.

If we were talking about a situation where, say, Trump won the election but was later denied the presidency, we might have something. But that’s not what we’re talking about here. We’re talking about Trump’s “right” to hold on to the presidency. That’s a whole different story. Elected officials do not have the “right” stay in office after they’ve been removed for wrongdoing.

Speaking of removal, Giuliani may believe Congressional impeachment constitutes, “an organized effort to exceed their limited powers,” but he’s demonstrably wrong there too.  Article II, Section 4 of the U.S. Constitution sets out the rules for presidential impeachment, and it’s abundantly clear that no president has an absolute right to stay on the throne in the oval office. Removal of a president for malfeasance was part of the founders’ plan right from the start.

Of course, there is considerable disagreement over the intended meaning of “High Crimes and Misdemeanors.” Some believe that the language means that the president must have committed a pretty serious crime – -a view which the historical record certainly supports. President Bill Clinton was impeached for lying under oath, and Andrew Johnson was impeached for violating a federal statute. Others (including some constitutional experts) believe the phrase means any action “performed in an official capacity by a government official that violates the basic principles of government” – obviously a much looser standard.

Regardless of where one stands on the matter of which crime is high enough to warrant impeachment proceedings, there can be no question that Congress has the legal power to conduct those proceedings. Giuliani certainly knows that.

So what, then, is his point? It seems that he is likening a presidential impeachment to some kind of malicious prosecution.  Under American law, we sometimes allow a person a civil legal claim if they were unfairly victimized by a criminal prosecution conducted for nefarious purposes. However, malicious prosecution claims are common-law tort claims – and have zero to do with the U.S. Constitution or these magical experts Giuliani has consulted. This is a tangential issue, for sure, given that a presidential impeachment isn’t a prosecution at all. While there are similarities between criminal prosecutions and impeachment proceedings, they’re also very, very different. Impeachments are like trials in that evidence is presented and examined –but evidentiary rules aren’t employed, standards of proof aren’t proscribed, and procedure isn’t mandated. Most importantly, impeachments are inherently political tools, with political – and not criminal– consequences. A president might lose his job and be ousted in shame – but that’s basically it.

In reality, it would be impossible for an impeachment proceeding to be “rogue.” Only Congress can impeach; therefore, by definition, impeachment is, by definition, an official action.

Now what about Rudy’s characterization of impeachment as a way for Trump-haters, “to trample on the constitutional rights of citizens in an illicit plan carried out by illegal means, to remove the President of the US, on deliberately falsified charges.” That certainly does sound sinister. But Trump has no “constitutional right” to remain president, and Congress has every right to use impeachment as a “means” to throw him out. That leaves us with “deliberately falsified charges.” Usually, suing someone for spreading deliberately false information is done via a defamation claim, and we’ve already covered how that’s not going to work with members of Congress.

For now, it’s probably best that Giuliani spend his free time prepping for his own testimony rather than talking contingency-fees for Trump’s winning lawsuit against Congressional Dems.

[image via SAUL LOEB/AFP/Getty Images]

This is an opinion piece. The views expressed in this article are those of just the author.

Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. Follow Elura on Twitter @elurananos

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