As Laura Ingraham tells Rudy Giuliani, it’s certainly a “novel” approach to the tension between the executive and legislative branches. In an entertaining segment on Fox News Channel’s Ingraham Angle, Ingraham spends a significant amount of time in trying to talk Giuliani off the ledge of filing lawsuits and back to more solid ground in pushing back against impeachment. Giuliani keeps pulling the conversation back to his idea of suing the House over civil rights violations suffered by Donald Trump and himself:
“This is worse than McCarthy!” he declared, an apparent reference to Joseph McCarthy, the former Republican senator from Wisconsin.
Ingraham’s smart enough to understand the limits of immunity, which she also mentioned in the segment. Constitutional immunity only applies to statements made in debate in Congress, not to anything said outside of it. However, there’s also no basis for suing over a conspiracy or violations based on comments made outside of Congress, because individual House members have no authority outside of the chamber. Since any “conspiracy” to deprive Giuliani of his rights would necessarily have to focus on rhetoric and actions taken inside the House, that’s going to be one hell of a lift.
The White House could sue the House over the processes used for impeachment and for conducting investigations, but that’s a bit different than what Giuliani’s proposing here. For instance, they might have a very good complaint against the House for telling witnesses at State that they can’t bring attorneys to the hearings, which would deprive them of their right to counsel. However, that does have some precedent in grand-jury proceedings, where attorneys are not always allowed to be present to represent clients either. The House generally has the authority to set its own rules for such proceedings as long as they do not violate the Article I boundaries of their power. Accountability for abuses of that power are traditionally the responsibility of voters, not the courts, although courts sometimes do get involved in specific disputes between the executive and legislative branches.
In that light, would a court even allow a Giuliani lawsuit over these issues? Would he have standing to sue? Giuliani says his lawsuit would allege violation of attorney-client privilege in the House subpoena, but that’s an issue for his client, the president of the United States, who would have standing in a balance-of-powers lawsuit. The same is true for Giuliani’s claim that Congress is interfering in foreign policy, which comes close to sounding more like a Logan Act predicate for prosecution than a lawsuit:
“They are doing extraordinary things. For example, they are violating — they’re interfering with the president in exercising his rights under Article II: The president United States conducts the foreign policy of the United States,” Giuliani said. “They’re calling foreign leaders. They are going to foreign capitals.” …
Article II of the Constitution grants the president the “power, by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the Senators present concur.” Trump’s conversation with Zelensky, as well as Giuliani’s engagement with Ukrainian officials on behalf of Trump, deeply troubled members of Congress and veteran intelligence officials for possibly using foreign policy for personal political gain.
While the Constitution does grant the executive authority to conduct foreign policy, there is nothing in it that prevents members of Congress from “calling foreign leaders” and “going to foreign capitals,” either. As Jeff Sessions pointed out when challenged over his brief and irrelevant conversation with former Russian ambassador Sergey Kislyak, those are commonplace actions by Congress, which has oversight over foreign policy and which also controls spending on foreign aid as well. What Giuliani describes are potential violations of the Logan Act, which is an issue for the Department of Justice rather than a private lawsuit — although it hasn’t been seriously pursued in two centuries.
It all makes for an entertaining segment, as originally noted, if highly curious. One has to wonder why Giuliani’s still making the rounds at all now, however, after wisely lawyering up earlier in the day. The less Giuliani says himself, the better off he and his client will be … and one has to wonder why his client is sticking with Giuliani anyway, especially after everything that happened over the past week.
The lawsuit conversation starts up around the five-minute mark, and Ingraham’s well-warranted skepticism starts up shortly afterward.