The Times recently ran a lengthy account of Giuliani’s drinking. The ostensible justification was the supposed relevance of Giuliani’s drinking to the prosecution of Donald Trump. The argument goes like this: Trump might say he cannot be faulted for the events of January 6 because he was relying on the advice of his lawyer, Giuliani. If Trump knew Giuliani was a drunk, it would weaken this defense.
Yet the Paper of Record provides not one syllable that connects Giuliani’s drinking to any advice he has ever given the former president. Ever. The article repeats the story that Giuliani was “definitely intoxicated” on election night, but the source of this quote is quick to say he has no idea whether Giuliani was intoxicated when he spoke with Trump.
In any event, though the advice-of-counsel defense requires that the lawyer’s advice be reasonable, I am aware of no case that rejects it based on the BAC of the lawyer at the time she huddled with her client. The Times draws our attention to no such authority, nor does it quote any authorities who support this extraordinary legal theory.
In fact, we don’t even know whether prosecutors are genuinely pursuing the argument. The Office of Special Counsel Jack Smith declined to comment for the article. The journalists relied on an unnamed “person familiar with the matter,” who apparently told them Smith’s office “has questioned witnesses about Mr. Giuliani’s alcohol consumption as he was advising Mr. Trump, including on election night.” Perhaps this is so, though it hardly needs saying that Giuliani’s possible intoxication November 3 has very little relevance to his advice thereafter.
In any case, the great majority of the article has no remote connection to Giuliani’s conversations with Trump. Instead, it is a 3000-word account of his emotional and mental decline. The authors detect “a smallness to [Giuliani’s] world now, a narrowing to reflect his circumstances.” Like many once-powerful men, Giuliani apparently could not live with his precipitous fall from national prominence to cultural irrelevance. He turned to alcohol to soften the blow, and the drink has gotten the better of him, or so the writers suggest. The connection to Trump and the advice-of-counsel defense seems almost an afterthought, a few paragraphs that imply far more than they prove.
So, if we grant that the link to the advice-of-counsel defense is not the real purpose of the article, the question is whether the personal failings of a very public figure are the proper subject of journalistic attention. The answer to this question has to be no.
The Times has engaged in public shaming. I accept that the tone of the article is not particularly vicious, at least not by the standards of the day. But it recounts several episodes when Giuliani publicly embarrassed himself and others because of his drinking. Giuliani emerges as a pathetic figure who cannot control his drinking or his behavior, and whose increasingly desperate attempts to remain relevant have driven him deeper and deeper into private ruin and public humiliation. The Times participates in (and profits from) this humiliation by repeating and amplifying Giuliani’s personal failings, and that is simply indefensible.
I am no fan of Rudy Giuliani. I am so far to his left that he can’t even see me from where he lives. I have spent the whole of a long career as a criminal defense and civil rights lawyer standing with prisoners on death row and detainees at Guantanamo. And Lord knows I abhor what Giuliani has done these past fractious years, particularly since he threw his hat in with Donald Trump. His behavior has been contemptible; soon enough, we will learn if it was also criminal.
But I object to Giuliani’s public behavior, not his private morality. More than a century ago, Fats Waller had it right: “If I attend church on Sunday. Then cabaret all day Monday. Ain’t nobody’s business if I do.” Ain’t nobody’s business if Rudy Giuliani is an alcoholic.
Even more do I despise shaming people for behavior attributable to illness or disease. More than half a century ago, no less an authority than the New York Times observed the “great change in attitude toward alcoholics. … [T]hey have come to be viewed as victims of an unfortunate disease and proper subjects for medical treatment.”
Perhaps Giuliani is an alcoholic, perhaps he is not, but if a public figure suffered from severe depression—so severe that at times it distorted her thinking, as depression can do—I trust no one would parade the embarrassing particulars of her behavior to an audience in the millions, just as I trust no one would try to profit from her illness. At least, I trust the New York Times would not.
In our hyper-wired age, when so much of our personal life can be discovered by anyone with an internet connection, it may seem extravagant to insist on the difference between public and private behavior. But that is precisely when the boundary is most important.
Yes, the Times owes Giuliani an apology.
