If the Senate won’t have a real trial, New York state prosecutors can.

The People v. Giuliani et al on federal bribery/state extortion conspiracy (and other crimes) would be justified on its own for deterrence and the rule of law.

But it is also a way to get to the bottom of Giuliani’s and Trump’s conspiracy with subpoenas of Bolton, Pompeo, Pence, Barr, Mulvaney and others.  Here is my intro, and here is a link to my Slate piece:

As the Senate votes this week on whether to subpoena witnesses like Bolton, it should understand that its vote is not the final say. For one, the House could still subpoena or begin impeachment inquiries into many of the officials at the center of the Ukraine scandal. Another intriguing possibility for immediate criminal liability turns not on Attorney General William Barr’s Department of Justice but on New York conspiracy and extortion law. If Senate Republicans vote against witnesses or otherwise create a sham trial, then New York state prosecutors have the jurisdiction and the duty to investigate—and potentially indict—Giuliani and others for extortion conspiracy, and to subpoena his possible co-conspirators inside and outside the administration.

A state trial of Giuliani and any associates involved in a Ukraine bribery plot would serve the interests of justice and deterrence, especially given recent evidence raising new questions about the possible stalking and intimidation of Yovanovitch, and given Giuliani flagrantly continuing the same scheme. Such charges would also open an alternative legal process for pursuing subpoenas of key witnesses and documents that the Senate Republicans have been blocking thus far.

Can New York prosecutors like Manhattan District Attorney Cy Vance pursue criminal charges? Under New York’s statute on criminal conspiracy jurisdiction, when two or more people agree in New York to engage in criminal conduct in another jurisdiction, it is punishable as conspiracy if that conduct is criminal in both New York and the other jurisdiction. Thus, there would be three steps to such a prosecution: First, was the conduct criminal in the other jurisdiction, in this case, possibly D.C. (or perhaps Connecticut)? Second, was it criminal in New York state? Third, was the conspiracy advanced in New York state?

The bottom line is that a state criminal prosecution of Giuliani and his team could be based solidly on a combination of federal felonies (bribery and campaign finance, and perhaps stalking), state felonies (extortion), and conspiracy law, plus perhaps a combination of stalking crimes.

Author: Jed Shugerman

Legal historian at Fordham Law School, teaching Torts, Administrative Law, and Constitutional History. JD/PhD in History, Yale. Red Sox and Celtics fan, youth soccer coach. Author of "The People's Courts: Pursuing Judicial Independence in America" (2012) on the rise of judicial elections in America. I filed an amicus brief in the Emoluments litigation against Trump along with a great team of historians. I'm working on "The Rise of the Prosecutor Politicians," a history of prosecutors and political ambition (a cause of mass incarceration), and "The Imaginary Unitary Executive," on the myths and history of presidential power in America.

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