Truth Is Truth.

Resolving Giuliani’s Truth Dilemma.

Perpetual foot-in-mouth attorney Rudy Giuliani appeared on Meet The Press on August 19th and once again wrapped his tongue around his toe. In a widely lampooned statement, the attorney for the President of the United States, declared “truth isn’t truth.” An incredulous Chuck Todd accurately responded, “this is going to become a bad meme.”

There is no question Giuliani’s clumsy phrasing distracted from his point, which is sadly typical for him. Lawyers for the President of the United States should be better at words than this. However, the point he was trying to make, while still wrong, was at least not quite as dumb as the words he chose to make it. Giuliani was really trying to say that, when witnesses conflict, it is difficult to know the truth. Take a longer look at the transcript for context.

GIULIANI: I am not going to be rushed into having him testify so that he gets trapped into perjury. And when you tell me that, you know, he should testify because he’s going to tell the truth and he shouldn’t worry, well that’s so silly because it’s somebody’s version of the truth. Not the truth. He didn’t have a, a conversation —

TODD: Truth is truth. I don’t mean to go like —

GIULIANI: No, it isn’t truth. Truth isn’t truth. The President of the United States says, “I didn’t — ”

TODD: Truth isn’t truth? Mr. Mayor, do you realize, what, I, I, I —

GIULIANI: No, no, no —

TODD: This is going to become a bad meme.

GIULIANI: Don’t do, don’t do this to me.

TODD: Don’t do truth isn’t truth to me.

GIULIANI: Donald Trump says I didn’t talk about Flynn with Comey. Comey says you did talk about it, so tell me what the truth is.

TODD: Don McGahn might know.

GIULIANI: If you’re such a genius, John McGahn — Don McGahn doesn’t know. If that’s the situation —

TODD: Ok.

GIULIANI: — they have two pieces of evidence, Trump says I didn’t tell them and the other guy says that he did say it, which is the truth? Maybe you know because you’re a genius.

TODD: At that point, you’re right. Under two people, I, no, you’re right. I don’t read minds on that front. Let me ask you this final question.

GIULIANI: No, we have, we have, no, no, no, let me finish. We have a credibility gap between the two of them. You’ve got to select one or the other. Now, who do you think Mueller’s going to select? One of his best friends, Comey, or the president who he has been carrying on a completely wild, crazy —

TODD: It it possible —

GIULIANI: — unorthodox investigation.

TODD: — is it possible he makes a conclusion based on who’s been more truthful over the years?

GIULIANI: It’s possible that he’ll make the conclusion on which of the two statements is more logical, which of the two statements has more common sense. Yeah, it’s possible he can do that. But, no, you can’t bring into, you can’t bring into, into question prior conduct. You’re not even allowed to do that at a trial.

So the thrust of the Giuliani’s argument goes back to the old perjury trap nonsense I have discussed before. Giuliani is trying to say that even if Trump tells the truth that Mueller might decide it is perjury because one other witness says otherwise. If Trump says he didn’t talk to Comey about Flynn, but Comey says he did, Giuliani says Mueller will believe his “best friend,” Comey.

Setting aside that there really is no evidence Mueller and Comey are “best friends,” Giuliani’s argument suffers from a much more obvious and deeper flaw. Giuliani’s argument relies on the false premise that Mueller is the ultimate and final arbiter of what the truth is. He is not.

Even if Mueller personally believes Trump committed perjury, that belief has power only if Mueller is able to persuade others that it is true. For purposes of impeachment, this would mean Mueller’s actual evidence would have to be of sufficient quality, and so compelling, as to convince a majority of the House of Representatives and 2/3s of the Senate that Trump committed perjury.

Lawyers sometimes say that “the truth is whatever you can convince a jury it is.” The point here is that the truth is certainly not whatever the prosecutor thinks it is. The only power the prosecutor has is to argue his case to the jury. The defense argues its case to the jury. Neither is the arbiter of what shall be treated as true, that power belongs solely to the jury.

Does anyone really think that evidence consisting of simply Comey’s word vs. Trump’s word would make a credible case of perjury against Trump that would persuade Congress to impeach and convict the President? Of course, it wouldn’t, and Mueller understands that as well as anyone.

Of course, other evidence might could be introduced and considered, to include conflicting statements from Giuliani himself. While Giuliani currently says Trump’s current story is that Trump never said anything about Flynn to Comey, Giuliani’s prior story was that Trump asked Comey to give Flynn a break, but it was okay for Trump to do that.

GIULIANI: Well Comey’s testimony is hardly worth anything. And — nor — nor did he ever — James Comey had — never found any evidence of collusion. And rules out obstruction by saying the president had a right to fire me. So all the rest of it is just politics. I mean, the — the — the reality is Comey, in some ways, ends up being a good witness for us.

Unless you assume they’re trying to get him into a perjury trap by (ph) he tells his version, somebody else has a different version.

STEPHANOPOULOS: How is he a good witness for the president if — if he’s saying that the president was asking him — directing him, in his words, to let the Michael Flynn investigation go?

GIULIANI: He didn’t direct him to do that. What he said to him was can you — can you —

STEPHANOPOULOS: Comey says he took it as direction.

GIULIANI: Well that’s OK. I mean, taking it that way — I mean by that time, he had been fired. And he said a lot of other things, some of which have turned out to be untrue. The reality is as a prosecutor, I was told that many times. Can you give the man a break, either by his lawyers, by his relatives, by friends. You take that into consideration but, you know, that doesn’t determine not going forward with it.

How much weight should be given Giuliani’s changing the President’s story? Once again, that’s not for Mueller to decide. It’s just evidence Mueller can present to persuade others. The “truth finders” in Congress decide how much weight to give that. Perhaps a scary proposition, but it is true.

Given the political nature of it all, it’s the American people Mueller has to persuade. Contrary to Giuliani’s suggestion, it is in their hands this ultimately sits, not Mueller’s. It would appear that Giuliani does not believe the American people will be fair in determining what they believe to be true.

Chuck Todd was right about one thing. Giuliani’s foot in mouth “truth isn’t truth” comment did inspire some bad memes. Here are a couple of mine.

Written by

Retired lawyer & Army vet in The Villages of Florida. Lifelong: Republican (pre-Trump), Constitution buff, science nerd & dog lover. Twitter: @KeithDB80

Get the Medium app

A button that says 'Download on the App Store', and if clicked it will lead you to the iOS App store
A button that says 'Get it on, Google Play', and if clicked it will lead you to the Google Play store