Reports, denied of course by Rudy Giuliani and his lawyer, that he has discussed a preemptive pardon with Donald Trump are made even more credible by the fact that Giuliani knows that he is part of an investigation by the FBI and federal prosecutors, who may well have held off on further action during the “blackout” period leading up to the election because an indictment of the president’s personal attorney would have been perceived as politically motivated.
If, as it appears, Giuliani is the subject or target of a federal investigation, prosecutors have already told Giuliani’s lawyer that because they are required to do so. And they may still be unable to take any action against Giuliani several weeks into the transition period because he is perpetuating the myth that the election is still not over and that the “process” is still working itself out with court cases and press conferences alleging a massive conspiracy that only exists in the overheated imaginations of the president and some of his more rabid reporters.
Giuliani, then, may be cynically enabling Trump’s post-election hysteria with his slapstick lawsuits and show hearings because he knows FBI agents aren’t going to jump on stage to handcuff him while the cameras are still on him. It’s hard to believe that he is so addled as a lawyer and political operative that he actually believes the wild conspiracy theories about a “rigged election” and “massive voter fraud” that he is promoting. No, those are a means to an end.
His primary objective appears to be saving his own skin and his law license. Giuliani knows that his alliance with two shady former Soviet-born operatives—Lev Parnas and Igor Fruman—to travel abroad to dig up and manufacture dirt on Joe Biden and his son Hunter has made him vulnerable to a wide range of federal charges, including violations of federal election and lobbying laws, money laundering, and other financial crimes. Although both Parnas and Fruman pleaded not guilty and are scheduled to go to trial as soon as the COVID-19 crisis permits, their lawyers are also intensely talking to federal prosecutors about possible deals, and the primary subject of these discussions is what credible evidence these two can deliver about Giuliani. An important aspect of the federal investigation is whether, and to what extent, Giuliani and his cohorts were acting in concert with Russian intelligence operatives, such as Andrii Derkach, a Ukraine lawmaker who was sanctioned by the U.S. Treasury Department in September as a Russian agent attempting to interfere with this year’s presidential election.
But the law of unintended consequences may be at work here, and Giuliani could now be considered too toxic to be eligible for a presidential preemptive pardon. Giuliani’s campaign to overturn the election results has imploded spectacularly, and semi-serious discussions of voting irregularities have degenerated into a farcical spectacle more worthy of a theater of the absurd than a serious court of law. So while Giuliani may have proved himself to be a loyal Trump stalwart, the abject failure of his post-election campaign may have doomed his chances of a pardon, as both Trump and Giuliani have each been marked as a Loser, a label that has always terrified Trump.
While it is true that Trump has already pardoned Michael Flynn, another loyal “soldier” to his cause, there are significant differences in the two cases from a White House perspective. Flynn’s case had already worked its way through the law-enforcement and judicial system, while Giuliani’s has not even started. Flynn has twice pleaded guilty to lying to the FBI about his contacts with the Russian ambassador, and although Bill Barr’s Justice Department has tried mightily to withdraw its charges against Flynn, the federal sentencing judge assigned to the case was still mulling over his options when Trump bit the bullet and pardoned Flynn. Trump is also likely to pardon his longtime confidant Roger Stone, whose sentence he has already commuted. Former Trump campaign chairman Paul Manafort is another strong candidate for a pardon, since Manafort has already proven his fealty to Trump by remaining mum throughout his federal prison sentence.
But Giuliani falls into a completely different category than these three other Trump stalwarts. The only other time that a preemptive pardon has been issued by a president was when Gerald Ford pardoned Richard Nixon for any and all crimes that he may have committed while in the White House, but for which Nixon was never indicted. Whether Trump thinks Giuliani is worthy of such a blanket pardon is doubtful, given how poorly Giuliani’s ill-conceived and losing post-election campaign to overturn the results is going. If Trump is going to be handing out blanket pardons to anyone, it will be to himself and his own family members—Ivanka, Jared, Don Jr., and Eric. Giuliani is not family.