Romania has long been considered one of the most corrupt countries in the European Union, but in recent years it has been making a concerted effort to bolster its fight against graft. Since 2013, Romania’s National Anticorruption Directorate (DNA), with the support of the ruling political parties, has been convicting roughly 1,000 people on corruption-related charges each year. However, once these anticorruption efforts began ensnaring high-level politicians—including Liviu Dragnea, the head of the biggest party in the Romanian Parliament—the government began to criticize the DNA’s work as biased, overzealous, and unfair. This conflict has been escalating, most dramatically in late 2017, when hundreds of thousands of Romanians took to the streets to protest an overnight decree that pardoned those serving sentences of five years or less for corruption-related crimes, and also decriminalized government officials’ corruption offenses involving less than $47,000 (raised to $240,000 in a later draft bill). The protests led to violent clashes with the police, who used tear gas and water cannons to disperse the crowds.
Adding to the turmoil, Rudolph Giuliani, former Mayor of New York City and current personal attorney of U.S. President Trump, recently wrote a letter to Romanian president Klaus Iohannis, condemning the overreach of the DNA and supporting the government’s efforts to curtail the DNA’s enforcement of anticorruption laws. Giuliani was paid to write the letter by the Freeh Group, a private American firm whose overseas clients include a Romanian businessman convicted for fraud last year, and another Romanian businessman currently under investigation by the DNA for bribery. Giuliani’s letter raises two distinct corruption-related problems.
- First, while it’s common in the United States for former public officials to become private sector lobbyists after leaving the government, there is something unsettling about Giuliani inserting himself into the situation in Romania. Giuliani, after all, regularly appears in the media as President Trump’s public representative, which naturally raises the question whether in writing this letter on behalf of a private client, Giuliani is exploiting his proximity to the U.S. President to exert influence on Romania’s government—in a manner we might consider corrupt, whether or not it’s illegal. Indeed, despite Giuliani’s protestations that he is “an independent lawyer and consultant” and that the letter has “nothing to do with the U.S. government,” his letter darkly hints that U.S. foreign direct investment (FDI) in Romania will suffer if Romania fails to take the steps Giuliani recommends, which include amnesty for those convicted through the DNA’s “many abuses.” The United States is one of Romania’s largest sources of FDI, and the letter could easily be read as offering a kind of corrupt quid pro quo: you give my clients (and others) amnesty, and I’ll use my pull with the U.S. President to ensure the continued inflow of U.S. capital. And even if one doesn’t read such a direct quid pro quo into the letter, it’s certainly the case that many in Romania have interpreted Giuliani’s words as expressing the U.S. government’s position on the country’s anticorruption efforts, even though it in fact contradicts the official position taken by the State Department.
- Second, even if Giuliani had written the letter in good faith, following his advice is likely to set back Romania’s fight against corruption rather than encourage the “due process, transparency, and the rule of law” that Giuliani purports to advocate. Giuliani’s letter alleges various abuses by the DNA, including eliciting forced confessions and intimidating judges, but he offers no evidence in support of these allegations. He also accuses the DNA of using secret protocols to quietly collaborate with the Romanian Intelligence Service (SRI) to conduct corruption investigations, but he neglects to mention that Romania’s ruling political parties had initially approved the use of the protocols, and it was only after 27 corruption convictions of Romanian politicians in recent years that the same parties withdrew their support. What Giuliani is really doing is what the DNA’s domestic political opponents have been doing: alleging abusive prosecutorial tactics as a way of undermining anticorruption prosecutors’ calls for greater independence. A prime example is Laura Codruta Kovesi, the head of the DNA, who had received praise from the European Commission for her anticorruption work, yet was fired for “exceeding her authority” amid corruption investigations of multiple government officials. Likewise, Giuliani’s suggestion to include an amnesty for those prosecuted since the implementation of the secret protocols, if heeded, would undermine prosecutorial independence, politicize the prosecutorial process, and cause even more public dissatisfaction with the current anticorruption regime. And Giuliani’s recommendation that the Romanian government examine open DNA files on judges—hinting, without evidence, that these files are fodder for judicial intimidation by the DNA—will undercut the integrity of Romania’s anticorruption efforts altogether.
While reasonable people may differ in their opinions on Romania’s battle with corruption, there is something suspicious about Giuliani’s letter. Given that he enjoys a private relationship with the U.S. President, stakes out a position at odds with the official U.S. position on Romania’s anticorruption regime, and was paid to do so by parties who are under scrutiny by Romania’s anticorruption authorities, it seems that Giuliani is corruptly using his position in Washington to undermine a foreign government’s anticorruption efforts.
Thank you for this very interesting case study, Victoriya. I was unaware of the letter. My first reaction, after recovering from the shock and indignation, is a query that borders on conspiracy theory: is this at all related to Jimmy Morales’s decision to oust the CICIG? Granted, he was a target of their investigations, but is there more at play here? Guatemala is one of the few countries that has sided with the United States in supporting Israel’s moving its capital to Jerusalem. Is it possible that the United States government has an interest in weakening anticorruption bodies around the world, even as the administration seeks to weaken the FCPA?
On a somewhat less conspiratorial note, this could be part of a backlash that we may see spread to other countries as democracy slides into authoritarianism and the fundamental institutions that promote the rule of law deteriorate.
Thanks for highlighting this issue, Victoriya. The uncertainty created by the overlap of Giuliani’s identity as a revered former anti-corruption prosecutor and his current role as an advisor (legal and otherwise) to President Trump is unsettling. Public officials often lobby after their stints in government; indeed, the “Freeh Group” you mention is run by former FBI Director Louis Freeh, and it has previously staked out aggressive positions on the corruption crackdown in Romania. But as you rightly note, Giuliani’s current advocacy (for lack of a better descriptor) raises serious questions about the White House’s position both now and going forward. This kind of corruption/abuse seems very hard to police, especially in an environment where so many parties are trying to divine where U.S. policy may be heading on a host of issues. We don’t want to hamstring officials in getting advice, but perhaps we can encourage much starker lines between who are and are not executive branch advisers — and add limitations on lobbying during that period, similar to the rules for part-time legislators in some states. (Of course, it is all the more complicated in this instance given that the “adviser” here is a lawyer both providing legal advice to the President and maintaining an independent legal & lobbying practice…)
Thank you for the post, Victoriya! It is a really provocative discussions.
From the Romanian perspective, there is this unclear “foreign” intervention in its anticorruption policy that in the ends seems to be created by the local political forces possibly affected by it. This is a serious matter because as corruption became a concern for the international community, foreign perceptions on the status of the anticorruption efforts are seriously taken into account, especially when the observer claims to have expertise over that matter due to its previous work in the field. On the other hand, from the US perspective, the case creates a certain sensation of “there must be something wrong about this” but it seems there is no legal tool addressing the issue. These situations of possible usage of political influence arising from private relations with authorities (in this case the President, the main actor of of foreign affairs) seem to be very hard to police and regulate. I tend to believe that a rigid regulation could be counterproductive (if it creates an overdeterrence problem by demanding President’s private lawyer to not representing client before foreign officials for example). Maybe having more detailed and principle-oriented ethical guidelines could be more effective, but this is actually a really interesting and deep research-worthy subject!
Thank you Victoriya for this interesting post and for bringing attention to this bizarre event. I wonder if we would have as large a problem with this letter if Giuliani were not such a visible representative of the President. Giuliani has been on almost every U.S. news channel discussing his relationship to President Trump and his work for him as his lawyer. Lawyers have multiple clients all of the time and work on different matters on behalf of each client. Trump has a whole team of lawyers, some of whom have not been as outspoken and visible as Mr. Giuliani. If one of these lawyers had written this letter, would it have had such an effect on Romanian anti-corruption efforts? Would it have even made the news? And if not, would we be as concerned with the act itself? I see other folks discussing options for regulating this type of conduct. Fundamentally, I am asking whether there are certain facts about this situation that make it more egregious than other versions of the same story. Does that matter in deciding how to react to this letter?
This reeks of conflict of interests, but – as people have already noted above – technically, it probably is not. This does not stop me from saying that this is unethical, though. It should be up to the people in positions such as Giuliani’s to avoid such dubious situations, even when there are no imperative legal tools to regulate it. Yes, it would probably mean that following such a logic lawyers should be declining some clients while being employed by such high ranking officials – but managing conflicts of interests related to their clients in other fields is no news for lawyers anyways.
I am tempted to add that it should also be up to the public officials and politicians to make sure that their lawyers or other service providers do not use their position to advance their private (commercial) interests – again, even if there are no available legal tools to ensure that, at least they could make sure that their stance is known when signing service contracts.
Thanks for this great post, Vicky. I want to voice my agreement with the comments above that question the best way to regulate this kind conflict of interest. Giuliani’s letter is unseemly, and it does seem that, at the very least, legal ethics rules should have something to say about it. (Even if, as Cristina says, the factual situation is distinctive here). Would love to hear your thoughts on what you think might be effective ways to regulate this kind of foreign lobbying, perhaps in a later post?
Also, I want to follow up on your second point as well. Giuliani’s behavior here is particularly distressing because of his background and career path. He made his name as a federal prosecutor in the U.S., and he, of all people, should appreciate the value and importance of prosecutorial independence. I’m not intimately familiar with the facts on the ground in Romania, and it may be the case that the DNA engaged in some abusive practices or prosecutorial overreach. However, the solution to that isn’t to completely politicize the prosecutorial process. There’s a real sense here that Giuliani should know better.
Vicky, this is a great post–thank you! As many have already observed, this kind of activity feels wrong, even if it is within the bounds of the law. However, I was wondering if there could be repercussions for Giuliani through forums other than law enforcement. Indeed, as a member of the New York Bar, I have to think that this kind of behavior could be construed as some sort of attorney misconduct–perhaps something along the lines of leveraging a client relationship for personal gain or the gain of another client. Of course, I’m not a barred attorney myself, so I don’t know the rules of the New York Bar (or the American Bar Association), but I’m now curious about the potential of those within the legal profession (i.e., members of the New York Bar) enforcing sanctions for this kind of “legal but unethical” behavior (and thus deter Giuliani specifically, but also generally deter others in the future). I guess the other issue with this idea, however, is whether Giuliani wrote this letter as an “attorney” or a “lobbyist.”