How Rudy Giuliani's Drinking Habits Could Hurt Trump's Defense

Special Counsel Jack Smith reportedly is keenly interested in whether the former New York mayor gave Trump legal advice while intoxicated.

Four days after the 2020 presidential election, News Corp Executive Chairman Rupert Murdoch told Col Allen, then editor in chief of the New York Post, one of the papers owned by Murdoch's company, that he "just saw a bit of Rudy [Giuliani] ranting" about the systematic election fraud that supposedly had denied Donald Trump his rightful victory. Murdoch, who is also chairman of the Fox Corporation, called Giuliani "a terrible influence on Donald." Allan agreed that Giuliani seemed "unhinged," adding that he "has been for a while" and "I think booze has got him."

That exchange, which came to light as a result of the defamation lawsuit that Dominion Voting Systems filed against Fox News in response to its promotion of the conspiracy theory that Giuliani was peddling, raised an issue that could be salient in the federal case that charges Trump with unlawfully trying to stop Joe Biden from taking office. Based on information from three anonymous sources, Rolling Stone reports that Special Counsel Jack Smith is keenly interested in Giuliani's drinking habits after the election, when he headed the "elite strike force team" that aimed to reverse the outcome.

Why is that relevant? Trump maintains that, far from conspiring to defraud the United States, obstruct the congressional certification of Biden's victory, and deprive Americans of their voting rights, he was pursuing remedies he thought were legal for what he perceived as decisive election fraud. As Trump's lawyer, Giuliani played a key role in reinforcing both beliefs. If he was drunk at critical moments when he advised Trump on how to challenge the election results, and if Trump knew he was drunk, that would undermine the former president's argument that he acted in good faith based on legal advice he reasonably believed to be sound.

Rolling Stone, which cites "a source who's been in the room with Smith's team, one witness's attorney, and a third person familiar with the matter," says federal prosecutors have asked witnesses "how seemingly intoxicated Giuliani was during the weeks he was  giving Trump advice on how to cling to power." They also have asked witnesses whether Trump, a longtime teetotaler, "had ever gossiped with them about Giuliani's drinking habits"; whether Trump "had ever claimed Giuliani's drinking impacted his decision making or judgment"; and whether Trump "was told that the former New York mayor was giving him post-election legal and strategic advice while inebriated."

In response to those questions, Rolling Stone reports, some witnesses said that "they saw Giuliani consuming significant quantities of alcohol," that "they could clearly smell alcohol on Giuliani's breath, including on election night," and that "they noticed distinct changes in his demeanor from hours prior." The magazine quotes former federal prosecutor Mitchell Epner on why all this matters.

"To rely upon an advice of counsel defense," Epner says, a defendant must make "full disclosure of all material facts to the attorney. That requires that the attorney understands what's being told to them. If you know that your attorney is drunk, that does not count as making full disclosure of all material facts."

That defense also requires that the defendant "reasonably followed the attorney's recommended course of conduct in good faith," Epner adds. If Giuliani had a pattern of giving "much more aggressive" advice when he had been drinking, "it would not be reasonable to rely on the drunk advice."

This issue is relevant not only to the federal election interference case but also to the Georgia indictment that focuses on Trump's efforts to claim that state's electoral votes. In both cases, Trump argues that he followed his lawyers' advice.

One example is the angry, rambling, incoherent, and boastful speech that Trump delivered on Election Night, during which he claimed victory and alleged "a major fraud." The decision to do that, former Trump campaign adviser Jason Miller told the House select committee that investigated the January 6, 2021, riot by Trump supporters at the U.S. Capitol, was strongly influenced by Giuliani. According to Miller, Giuliani was saying, "We won it. They are stealing it from us. Where did all the votes come from? We need to say that we won." As Giuliani saw it, Miller added, "anyone who didn't agree with that position was being weak."

Miller suggested that Giuliani's aggressive stance may have been influenced by the alcohol he ingested that night. "I think the mayor was definitely intoxicated," Miller said, "but I do not know his level of intoxication when he spoke with the president."

The journalist Michael Wolff, who wrote three books about Trump and his inner circle, likewise reported that Giuliani was so "incredibly drunk" on Election Night that he was unsteady on his feet, to the point that Trump's aides worried that he might accidentally smash antique White House china. They were "obviously, or rightfully, concerned about what Giuliani was saying to the president about the election, and giving him this misinformation," Wolff told MSNBC in 2021. "But they were also concerned that he was going to break the china."

As Rolling Stone notes, those accounts were contradicted by Roy Bailey, a friend of Giuliani's who appeared on his podcast last year. "I was with you that night, and you had nothing to drink," Bailey said. "You were all business." Giuliani denied the claim that he was drunk on Election Night, saying on Twitter that he "REFUSED all alcohol that evening" and pronouncing himself "disgusted and outraged at the out right lie." He said his "favorite drink" was Diet Pepsi.

More generally, Giuliani insists that alcohol consumption had no impact on the advice he gave Trump. "I'm not an alcoholic," he told New York's NBC station in 2021. "I probably function more effectively than 90 percent of the population."

The fact that Giuliani felt compelled to deny that he has a drinking problem suggests his behavior left a different impression on at least some of the people who witnessed it. "Giuliani was, many around Trump believed, always buzzed if not, in the phrase Steve Bannon made famous in the Trump White House, hopelessly 'in the mumble tank,'" Wolff writes in Landslide, the final book of his Trump trilogy. As "the Trump family" saw it, Wolff says, "Rudy was crazy, or drunk, or opportunistic, or all three."

According to Wolff, Trump "explained to a caller that he knew Rudy took a drink too many, and that he was a loose cannon, and that he said a lot of shit that was not true." But the important thing, Trump reportedly thought, was that Giuliani "could be counted on to fight even when others wouldn't" and was willing to "work for free."

Still, Smith may have a hard time verifying not only that Giuliani was drunk when he advised Trump but also that Trump was aware of his intoxication. Was Giuliani drunk when he repeatedly went on TV to proclaim that the election had been stolen by some combination of phony ballots and deliberately corrupting voting machines? Was Giuliani drunk when he made similar claims on Twitter, at press conferences, and in legislative testimony, podcasts, and speeches? Was Giuliani drunk when he backed post-election lawsuits that never produced credible evidence of the anti-Trump conspiracy he described? Was Giuliani drunk when he advised Trump that the "alternate" electors plan was a legitimate way to rectify what they both viewed (or claimed to view) as a grave injustice? Was Giuliani drunk when he pressured legislative leaders in supposedly contested states to recognize those electors instead of Biden's? Was Giuliani drunk when he embraced the argument that Vice President Mike Pence had the constitutional authority to do the same during the January 6 tally of electoral votes?

If so, that would be a tidy explanation for Giuliani's aggressiveness and recklessness. But I suspect the problem with Giuliani went deeper than the "booze."