A Special Counsel Must Investigate Rudy Giuliani and Bill Barr

(Bloomberg Opinion) -- Believe it or not, it’s time for a new special counsel investigation.

Not targeting Donald Trump himself: Congress can and will investigate the president in the course of its impeachment inquiry.

But as a result of the whistle-blower complaint, a separate investigation does need to get underway immediately. The Department of Justice must investigate Rudy Giuliani’s potential crimes in trying to get Ukraine to interfere in the 2020 U.S. election. It also needs to investigate whether White House officials criminally covered up evidence of Trump’s call with Ukrainian president Volodymyr Zelenskiy.

And because the whistle-blower complaint alleges that the top law enforcement official in the federal government, Attorney General William Barr, “appears to be involved” in these events, a special counsel must be appointed. Barr obviously must recuse himself: He has a conflict of interest and, more to the point, he is a potential target of the criminal investigation. (A Justice Department spokeswoman has said Barr was unaware of Trump’s call with Zelenskiy until a whistle-blower’s complaint about it was forwarded to the agency in late August, and that Barr never discussed with Trump investigating former Vice President Joe Biden’s activities in Ukraine.)

To be clear, Congress should not wait on the results of this special counsel investigation to continue its own inquiries. That’s unnecessary, because Congress is appropriately focused on whether Trump committed high crimes and misdemeanors, not on whether anyone else may have committed a federal crime. It would also obviously be absurd to put a hold on the congressional inquiry to wait for a Department of Justice investigation to conclude.

But a special investigation is needed because Congress does not have the expertise or the jurisdiction to go after criminal conduct by Giuliani, a private citizen. Nor could it investigate Barr’s conduct in any context other than the separate impeachment inquiry into Trump.

These investigations need federal prosecutors and FBI agents. And they need them right now.

Begin with Giuliani. The whistle-blower complaint alleges that in January and February of 2019, Giuliani met with Yuriy Lutsenko, who was then Ukraine’s prosecutor general. These meetings preceded Lutsenko’s initiative in March to publish articles in The Hill in which he aired the allegations that Trump eventually asked Zelenskiy to investigate — allegations about Joe Biden and his son Hunter, as well as about the supposed origins of the allegation of the Trump campaign’s collusion with Russia in 2016.

A special counsel investigation is needed to determine first whether Giuliani suggested the topic of these articles to Lutsenko, or whether Lutsenko pitched the ideas to Giuliani. Regardless, it seems likely that Giuliani, who was already representing Trump in a personal capacity, was engaged in some form of coordination with Lutsenko. That could easily give rise to a criminal charge of conspiracy to influence the outcome of the 2020 election.

Subsequently, Giuliani had many further contacts with Lutsenko and other Ukrainian officials, according to the whistle-blower complaint. All of these need to be investigated, too.

It’s worth noting, too, that Lutsenko attacked then-U.S. ambassador to Ukraine Marie Yovanovitch in his articles for The Hill. She was subsequently recalled by the Trump administration, and in his call to Zelenskiy, Trump said he expected she would “go through some things.” Depending on what those things were, Yovanovitch, a longtime critic of Lutsenko, may have been the victim of a conspiracy involving Lutsenko and Giuliani.

As for the cover-up investigation, I explained yesterday that the whistle-blower complaint includes at least three separate acts taken by unnamed White House officials to suppress information about the Trump-Zelenskiy call. Those must be investigated by a special counsel to determine if they constituted criminal obstruction of justice.

Barr cannot be involved in this investigation, nor can any special counsel be answerable to him. The whistle-blower complaint suggests that Barr “appears” to have been involved in the whole affair. On its own, that allegation would be enough to require recusal.

But there’s much more to it than that. We know that Trump himself invoked Barr repeatedly in his call with Zelenskiy, linking Giuliani’s efforts to an investigation he claimed Barr was undertaking. When the president of the United States tells the president of a foreign government that the attorney general is involved in something, in the course of a phone call in which he appears to abuse the public trust, the attorney general can’t be involved in the investigation.

It isn’t sufficient for Barr to say that he wasn’t engaged in any investigation on Trump’s behalf. Nor would it suffice for Barr to say that he was conducting a perfectly lawful investigation into the origins of the allegation that the Trump campaign colluded with Russia. A prosecutor who is implicated in a crime can’t refuse to recuse himself by simply asserting that he’s innocent. That’s not how recusal works. Even if Barr were completely innocent, he would have to recuse himself to preserve the appearance of impartiality.

Even though the target of this special investigation would not be Trump, it’s entirely possible that such an investigation might find evidence of criminal wrongdoing by the president. Under current Justice Department guidelines, no prosecution could take place while Trump was in office. Nevertheless, Trump will eventually no longer be president, whether by impeachment and removal, losing an election, or finishing a second term in office. Any then, any criminal findings by the special counsel with respect to Trump would be very much open for prosecution.

To contact the editor responsible for this story: Sarah Green Carmichael at sgreencarmic@bloomberg.net

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Noah Feldman is a Bloomberg Opinion columnist. He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”

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