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By Elie Honig

Dear Reader,

Note to Rudy Giuliani and Matt Gaetz: you’re no Donald Trump.

I see what you’re doing. Everyone does; it doesn’t take a former prosecutor. Now that you’re looking down the barrel of intensifying federal criminal investigations, you’re trying to make like Donald and go on the attack.  Everyone’s out to get you, it’s political, every prosecutor hates you personally, it’s all just a “witch hunt.”  

It’s a tired routine. But the thing is: it worked (or at least has worked, so far) for Trump. 

The weather-worn “admit nothing, deny everything, launch counter-attack” strategy dates back to Trump’s original dirty trickster, Roy Cohn. Trump infamously moaned as Robert Mueller’s investigation took off with then-Attorney General Jeff Sessions having recused himself, “Where’s my Roy Cohn?”  (Cohn died in 1986.) Cohn is indeed the godfather of all Trump fixers, a lineage that later grew to include Roger Stone, Michael Cohen, Bill Barr, and Giuliani.

Neither Giuliani nor Gaetz have been charged with any crimes yet, and we don’t know whether they ever will be. But plainly, neither is going to sit back and wait for that 6:00 a.m. knock on the door from the FBI before going on the attack.  

Giuliani has just gone right off the deep end. He has grafted onto his prosecutors the worst possible motives, conjured out of thin air: “They are beyond the ability to control their rational thinking or their decency, and they have a serious, serious ethical issue, driven by Trump derangement syndrome,” Giuliani said. “They are trying to frame me.” Most absurdly, Giuliani claimed prosecutors are investigating him because they are “jealous.” No doubt, prosecutors from the SDNY, past and present, have feelings about Giuliani — but jealousy ain’t one of them. (Take it from this SDNY alum.) Trump himself weighed in eloquently on Giuliani’s behalf: “It’s, like, so unfair and such a double — it’s like a double standard like I don’t think anybody’s ever seen before.”  I mean, it’s just like, y’know, like, soooooo unfair, oh my gosh.

Gaetz, for his part, has taken a more scattershot approach. In an official statement, he blamed essentially, well, everyone: “the establishment; the FBI; the Biden Justice Department; the Cheney political dynasty; even the Justice Department under Trump.” You know — “the establishment.” Yeah. It’s their fault.      

But here’s what Giuliani and Gaetz are missing: it’s not going to work for them like it worked for Trump.  Trump got away with it (or — again — has gotten away with it, so far) because he was uniquely positioned, because he was politically protected, and because he was just plain old lucky.

First, Trump was the sitting president when this all went down. Giuliani and Gaetz are, of course, not presidents (though it is remarkable to think back to the early 2000s when Giuliani was briefly seen as a potential presidential frontrunner). Trump was able to dodge immediate indictment for obstruction of justice largely because of a controversial, pre-existing DOJ policy against indicting a sitting president. That policy, which has been roundly called into question, remains in place. Unfortunately for Giuliani and Gaetz, it applies only to a current president, and not to sycophants of a former president.

(Side note to the current Justice Department: the policy does not of course, apply to former presidents at all, and Trump’s potentially criminal conduct is still within the statute of limitations.  Just want to make sure you’re aware.) 

Second, Trump had the benefit of a compromised Justice Department led by Barr, who was willing to trample on norms, ethics, the truth, and the law to save Trump’s hide. Barr infamously got the job as Trump’s attorney general only after he wrote and sent to the Justice Department a “Please, Mr. President, pick me!” memo declaring, in advance, that he found Mueller’s obstruction theory to be “fatally misconceived.” That memo caught Trump’s eye, and Barr’s nomination followed.  

Barr proceeded to do precisely as he had forecasted, ultimately declaring in rushed, conclusory fashion — contrary to the facts, the law, and common sense — that Trump was free and clear on obstruction of justice. Rod Rosenstein, then Barr’s deputy, eagerly agreed, as Rosenstein is wont to do. On the other side of the fence, I was one of over a thousand non-political former federal prosecutors who respectfully disagreed and believed the evidence amply supported obstruction charges. Barr and Rosenstein versus a thousand-plus former prosecutors: take your pick.  

Things have changed now, dramatically, at DOJ headquarters. Gone are Barr and the underqualified charlatans he chose as his top brass. In their places now sit Attorney General Merrick Garland, Deputy Attorney General Lisa Monaco (of prior CAFE fame), Associate Attorney General Vanita Gupta, and, soon, Criminal Division Chief Kenneth Polite (a friend and former SDNY colleague). All are accomplished prosecutors who earned their stripes in the courtroom and were raised in the Justice Department’s tradition of political independence. Don’t count on them to emulate Barr.   

Indeed, this new crew at DOJ has come out swinging, making clear they intend to play no politics. The search of Giuliani’s home and office in particular served notice that there will be no tip-toeing around powerful, well-connected people. And it appears this principle will go both ways, politically. While new presidential administrations typically replace all U.S. Attorneys across the country, the Biden administration has left in place David Weiss, the Trump-appointed U.S. Attorney for the District of Delaware, which is investigating Hunter Biden, presumably to avoid even the appearance of a conflict of interest or a politically-motivated firing.

Third, there ain’t gonna be any pardons. Stone, Paul Manafort, and Michael Flynn all adopted some version of Trump’s favorite “witch hunt” talking point, and all were eventually rewarded with pardons or commutations. Of course, Giuliani and Gaetz would be fools to bank on a bailout from President Joe Biden. 

It may well be that the Justice Department never charges Giuliani or Gaetz. If that comes to pass, rest assured, it will be because DOJ deemed the evidence insufficient to support charges. But it won’t be because DOJ has been backed down by cheap, knockoff versions of Trump’s bully tactics. Giuliani and Gaetz may worship at the altar of Donald Trump. But neither of them is Donald Trump — as they could soon learn, the hard way.    

Stay Informed,

Elie

Elie Honig is the author of the forthcoming book, “Hatchet Man: How Bill Barr Broke the Prosecutor’s Code and Corrupted the Justice Department,” now available for pre-order.