It’s Rudymentary, Donald.

Photos of Trump and Giuliani speaking separately on the phone, courtesy of CNN

Most of our attention understandably has been on the Trump documents case and the incredible tapes, wild public admissions and brewing battles within the court about how to proceed in such a fraught and complicated national security matter. But we ought to also note that Special Counsel Jack Smith and his team have been very busy on another front: the investigation by a grand jury in Washington, D.C. into illegal efforts to overturn the 2020 election.

There are many within the Trump White House who have information and appear to have been active in a conspiracy to keep Trump in office. But someone who knows where the most bodies are buried is Trump’s longtime personal attorney, Rudy Giuliani. That’s why legal observers raised their collective eyebrows on Tuesday when both CNN and The New York Times reported that Giuliani may be preparing to cooperate with authorities in exchange for a deal.

We know this because Giuliani met with federal prosecutors under what’s called a “proffer agreement.” I prefer the more colorful and apt “Queen for a Day” agreement. But whatever we call it, the agreement’s existence is very bad news for the White House co-conspirators, including Trump. Let’s walk through why, then apply it to Giuliani’s specific knowledge and circumstances.

Queen for a Day

The New York Times reported on Tuesday that Giuliani recently sat for an interview with federal prosecutors. This isn’t surprising given his centrality to the conspiracy to overturn the 2020 election results. In fact, it’s rather maddening to many that it has taken this long for the Justice Department to interview such a key player. After all, Giuliani had already been interviewed and called in to testify before the grand jury in District Attorney Fani Willis’s case in Georgia, where he was informed nearly a year ago that he is one of the targets of her investigation over election interference in that state. So it’s about time Jack Smith did the same.

But then in a typical “bury the lede” way, the Times also noted that Guilinani’s interview with federal investigators “took place under what is known as a proffer agreement.”

Record scratch…

I saw that and thought, wait, Giuliani wants to be Queen for a Day? Meaning, he’s agreeing to come in and spill what he knows, on condition that his actual words can’t be used against him later? 

Here’s the thing about being Queen for a Day. When someone who is a potential target for investigators has relevant and valuable information about someone higher up the chain, they sometimes enter into a “proffer” agreement with prosecutors. These are actual written agreements in which the interviewee provides information to prosecutors. The proferrer’s goal is to provide truthful, reliable information sufficient to convince the prosecutors to grant immunity or offer a plea deal in exchange for it.

It’s important to note that just because you make a proffer doesn’t mean the government can’t make “derivative use” of your information. In other words, they can go check out what you said, build a case from it, and seek more evidence. If in the course of this they discover you committed crimes, they can still charge you with those. The only thing they can’t do is use your own words during the interview to help prove you committed a crime—unless you lied during your interview, in which case your words can come into evidence to show you’re a liar.

So a proffer doesn’t really get a potential defendant much in the way of protection. There’s no plea or immunity deal yet, but it seems like Giuliani might be angling for one. 

What tea did Giuliani spill?

Before we get into what Giuliani talked about, we need a high level refresher of the January 6 case, because it’s frankly been a while. The investigation covers a huge range of interlocking issues, as the hearings last summer made abundantly clear. Here are five biggies:

• There was the violent insurrection at the Capitol itself, with an open question about who in the White House or Congress knew it was coming and whether anyone aided the seditious conspiracy.

• If the violent effort to storm the Capitol and stop the electoral count by Congress failed, there was also a “soft coup” plan, laid out in the Eastman memos, to use Mike Pence to declare the election for Trump or “send it back to the states.”

• To get courts, state legislators and other officials to go along with the idea of reversing the election outcome, the Trump Campaign promoted the Big Lie about election fraud, raising the question of whether they knew the election conspiracies they were peddling were false.

• In order for the scheme to work, the White House organized slates of fake electors in key battleground states, where GOP officials and others attested falsely that they were duly elected by voters to cast the states’ electoral college votes for Trump.

• The Big Lie then became the Big Grift, where the Trump Campaign flooded its base of supporters with multiple daily requests for donations based on the false claims about a stolen election, raising hundreds of millions of dollars for a legal defense fund that didn’t even exist.

In proving their case around the above items, prosecutors face a difficult task. They must tie Donald Trump directly to an illegal conspiracy to hold onto power, prove that he acted with corrupt intent, prove that he knowingly perpetrated a fraud, and overcome his First Amendment and other defenses, in which he will assert that he had every right to challenge the election the way he did because he believed it was fraudulently stolen from him.

Okay, so with all that in mind, we have some sense of the importance of the things Giuliani reportedly spoke to prosecutors about. These include at least the following:

• The plan to create fake slates of Trump electors in key battleground states;

• Sidney Powell and her crazy, unsupported conspiracy theories about foreign actors hacking and stealing the 2020 election; and

• The scene that took place at the “War Room” at the Willard Hotel on January 5, 2021, one day before the insurrection at the Capitol.

Let’s break down each of these a bit.

The fake elector plan

In order for the scheme to overturn the 2020 election to work, when Mike Pence rose to perform the electoral count in Congress on January 6, 2021, he would have to be able to credibly state that there were actual, disputed claims to the electoral college votes in the battleground states. To help make this false claim appear valid and real, Giuliani and others in the White House (notably John Eastman and Boris Epshteyn) set out to organize fake slate of electors in seven swing states and to have those certificates delivered to Congress.

These fake electors met on Electoral College day in December of 2020 and signed their names to documents declaring they were the true electors from their states. Giuliani has publicly stated his belief that the Trump Campaign had to have such slates ready to go, just in case any of the courts hearing the election cases ruled their way. In his view, there had to be a mechanism for a state to switch its votes over to Trump, and that mechanism was the fake electors scheme.

Prosecutors likely are focused on the fake elector scheme because it is a more open and shut case. People high up, including the former president himself, organized people on the ground in these states to do something illegal: to submit a false document to the government, with most of them doing so under oath. Regardless of whether Giuliani or others believed that the election was stolen, it doesn’t suddenly give them the right to break other laws to get their way. A charge for conspiracy to defraud the U.S. could lie on the fake elector scheme without getting into the bigger question of whether they subjectively believed what they were doing was right.

Giuliani’s fingerprints were all over this scheme. In fact, according to text messages already procured by prosecutors, he was in meetings with Trump and others where the scheme was discussed. Two fake Nevada electors recently testified before the grand jury in Washington, D.C. under an immunity grant, and one of the electors—Michael McDonald, who was the state party leader in Nevada at the time—had apparently participated in a call with Giuliani and Trump about the scheme. As reported by AP,

On Nov. 4, 2020, for example, the day after the election, McDonald had a conference call with Trump, his then-chief of staff Mark Meadows, attorney Rudy Giuliani and son Eric Trump.

“They want full attack mode,” McDonald later wrote in a text message describing that call. “We’re gonna have a war room meeting in about an hour.”

And more generally about the fake elector scheme, as reported by CNN back in January of 2022, Giuliani was a clear central figure:

Giuliani and his allies coordinated the nuts-and-bolts of the process on a state-by-state level, the sources told CNN. One source said there were multiple planning calls between Trump campaign officials and GOP state operatives, and that Giuliani participated in at least one call. The source also said the Trump campaign lined up supporters to fill elector slots, secured meeting rooms in statehouses for the fake electors to meet on December 14, 2020, and circulated drafts of fake certificates that were ultimately sent to the National Archives.”

In addition: “It was Rudy and these misfit characters who started calling the shots,” a former Trump campaign staffer told CNN.

In addition: “Both [fake electors] Maddock from Michigan and DeMarco from Pennsylvania have said they were in direct contact with members of the Trump campaign.”

The Washington Post also reported around the same time,

The Trump electors gathered in plain sight, assisted by campaign officials and Trump attorney Rudolph W. Giuliani, who said publicly that the rival slates were necessary and appropriate. Internally, Giuliani oversaw the effort, according to former campaign officials and party leaders.

The campaign scrambled to help electors gain access to Capitol buildings, as is required in some states, and to distribute draft language for the certificates that would later be submitted to Congress, according to the former campaign officials and party leaders.

The campaign also worked to find replacements for the electors who were unable to participate, or unwilling.

In short, Giuliani was key to the illegal plan and has significant legal exposure on it. Prosecutors will want him to tie Trump, Eastman and other high-level co-conspirators to this scheme, and Giuliani may be their way to do it.

Sidney Powell and election conspiracies

If prosecutors want to zero in on any aspect of the Big Lie that is easy to puncture, they should look no farther than the crazed views of former Trump attorney Sidney Powell, whose theories on Venezuelan software and Dominion Voting Systems machines were so far out that no serious people, even within the Trump campaign, wanted her anywhere near the White House. Powell was sanctioned by a federal judge for her lies, and in civil suits where she faces defamation claims, Powell has argued that “no reasonable person” would assume her election fraud theories were fact. 

But Giuliani nevertheless remained part of her cabal of “kraken” attorneys, spreading misinformation to state legislators in hearings that he refused to repeat as an attorney in court. He stood behind her during an infamous press conference in November of 2020, where Powell made wild claims about Dominion Voting Systems and how it used software created “at the direction” of former and very much deceased Venezuelan President Hugo Chavez to swing his own election results, and further that the company has ties to the Clinton Foundation and Soros.

For his part, Giuliani made false claims in that presser about poll watchers, mail-in ballots, and so-called “over votes” in Michigan, none of which was based in fact. He then took his lies on a road show to places like Michigan and Georgia. Per Georgia Public Broadcasting, in December of 2020,

Giuliani falsely told a room of mostly Republican lawmakers that Georgia’s voting machines could not be trusted, tens of thousands of absentee ballots were illegally cast and counted and that the legislature should appoint its own slate of electors for President Trump.

The false election conspiracy claims could form the basis for a fraud case against those who knowingly used it to rake in hundreds of millions of dollars. The Special Counsel is very interested in following the money, and Giuliani could a be a star witness here as well.

Giuliani was also present with Sidney Powell and others during a contentious meeting between “Team Crazy” and “Team Normal” at the White House on December 18, 2020, where Trump aides hotly debated whether to use executive orders to seize voting machines, which Giuliani reportedly said could only be justified if there was clear-cut evidence of foreign interference in the election. Since he privately took the view that there was no such clear-cut evidence, it’s hard for him to explain why he continued to push that narrative publicly other than to deceive donors, courts and legislators.

The war room connection

If there is any provable connection between the violent insurrection at the Capitol on January 6, 2021 and the White House, the people who were gathered at the war room at the Willard Hotel the day before it all went down would know. Those included, among others, Giuliani, John Eastman, Steve Bannon and Boris Epshteyn, who had gathered to discuss strategies about how Trump could still hang on to power.

Also at the Willard Hotel that day was Trump adviser Roger Stone, who had direct ties to the Proud Boys and was in communication with the leaders of the violent attack via a private, encrypted chat group known as “Friends of Stone.” Those leaders have been found guilty of seditious conspiracy, so there is an open question about how far up the chain that conspiracy goes.

This area of the inquiry is perhaps the murkiest, with none of the key players thus far known to be cooperating. But that might have changed suddenly with Giuliani and the proffer. For Giuliani to whet the appetite of prosecutors, he most likely can’t have come in and said that he knows nothing about the Willard Hotel and what went on. First, that would be an obvious lie. And second, if he’s holding information out as an offer for a possible plea deal, it would probably have to comprise something of real value. The Holy Grail would be some kind of advance knowledge of the attack by the Trump White House, or at least knowledge of the high likelihood of violence that was winked and nodded at. 

One final note on documents

Giuliani’s proffer can’t really contain any confidential information or privileged communications between him and his former client. That’s one likely reason why the subject areas of the proffer are limited, at least for now, to information he has about people other than Trump.

But this doesn’t mean we’ll never get to that. While Trump didn’t keep a lot of written records, his allies left a long electronic trail. Prosecutors long ago obtained Giuliani’s phone and other electronic devices through a warrant, and these presumably contained many relevant text messages and other communications. They also have the phone, text and email records of other Trump-aligned attorneys, including John Eastman and Jeffrey Clark. A team at the Justice Department with the rather humorous name of “Project Coconut” has been culling the emails to separate out any that might be attorney-client privileged. 

If history is any guide, many of these documents likely will come into evidence on grounds that they were in furtherance of a criminal or fraudulent scheme and therefore are an exception to the attorney-client privilege. Jack Smith has already prevailed on this question when it comes to Trump’s attorneys on the Mar-a-Lago documents case, and John Eastman lost a key motion on this question in federal civil court in California. Giuliani probably already understands that he ultimately may not be able to hide his crimes behind claims of privilege.

This underscores the highly unusual situation of a former personal attorney making a proffer that might lead prosecutors to evidence that is harmful to his former client. The last people whom Trump wants cooperating with the government are his own attorneys, the very people who conspired with him at every level of his scheme to hang on to power. 

But these are unprecedented times, and this is an unprecedented case. It is looking more and more likely that the nightmare of his own lawyers turning state’s witnesses is what Trump will face, starting with his one time pal and lawyer Rudy Giuliani.