At the crack of dawn on Wednesday morning, FBI agents executed search warrants at the Manhattan apartment and office of Rudolph W. Giuliani. Giuliani, best known lately as (one of several) personal counsels for former President Donald Trump, is the former mayor of New York City, as well as the former U.S. attorney for the Southern District of New York.
The fact that a judge approved multiple search warrants for Giuliani’s home and office is stunning.
But all of those titles did not protect him from having his cellphones and computers carted away by federal agents as they pursue a criminal investigation into allegations that Giuliani illegally lobbied the Trump administration on behalf of Ukrainian officials and businesses.
Counsel for Giuliani has announced to the media that the searches were unnecessary because Giuliani had offered, on two occasions, to voluntarily answer questions from prosecutors. It’s obvious that law enforcement did not trust that offer.
The fact that the search warrants were obtained in the first place signals that federal agents wanted to retain the element of surprise to secure into their custody the items that were the subject of the search warrants. Hopefully, executing the search warrants at around 6 a.m. helped to prevent the destruction of any evidence.
According to the Department of Justice, the Foreign Agents Registration Act (FARA) “requires the registration of, and disclosures by, an ‘agent of a foreign principal’ who, either directly or through another person, within the United States (1) engages in ‘political activities’ on behalf of a foreign principal; (2) acts as a foreign principal’s public relations counsel, publicity agent, information-service employee, or political consultant; (3) solicits, collects, disburses, or dispenses contributions, loans, money, or other things of value for or in the interest of a foreign principal; or (4) represents the interests of the foreign principal before any agency or official of the U.S. government.”
Apparently, at least one of Wednesday’s search warrants specifically identified violation of the FARA as a crime possibly committed by Giuliani.
In the case of someone like Giuliani, there would have been the requirement that those search warrants be approved by someone at the highest levels of the Department of Justice.
Search warrants are required to be obtained by law enforcement to protect an individual’s Fourth Amendment right against “unreasonable searches and seizures.” A search warrant must be based upon probable cause and the applicant must present a sworn affidavit to a neutral and detached magistrate or judge. Within this affidavit, there must be facts sufficient to persuade that judge that a crime was committed and that searching in the locations specified within the search warrant will reveal evidence of the crime, or crimes. The locations to be searched must be described with particularity, as well as the items that will be seized from those locations.
In the case of someone like Giuliani, there would have been the requirement that those search warrants be approved by someone at the highest levels of the Department of Justice, as well as the requirement of exhaustion of other less-intrusive investigative means. Giuliani is an attorney, and an attorney’s communications with clients are usually deemed to be confidential and protected by the attorney-client privilege.
When you consider that Giuliani was the personal counsel for someone like Trump, the risk of seizing attorney-client communications of a highly sensitive nature becomes even more exceptional and of concern.
Thus, the fact that a judge approved multiple search warrants for Giuliani’s home and office is stunning and suggests that the affidavits in support of these search warrants contained facts and information that were so compelling (and that, most important, established probable cause that crimes had been committed) that the judge issued the warrants.
As recently as 2018, another of Trump's former attorneys, Michael Cohen, had his home, office and hotel room raided by law enforcement. The FBI seized thousands of documents, emails and records, as well as cellphones and computer equipment. Cohen claimed these seized items contained privileged communications between him and his clients. The federal judge presiding over Cohen’s case appointed a former federal judge to determine what materials seized in the raids were subject to the attorney-client privilege. Cohen later pleaded guilty to campaign finance and financial crimes.
Once the evidence is seized by law enforcement, a special “filter team” or a “taint team” of prosecutors will review all of the seized evidence and sift through the communications contained within things like cellphones and computers to screen out potential attorney-client communications. Any information deemed to be privileged will remain so, until a judge rules on whether those communications are truly entitled to such protection.
Also, as we saw in the case of Cohen, these potentially confidential attorney-client communications are sometimes reviewed by the judge to determine whether they are truly protected by the attorney-client relationship or whether there is some exception that would apply that would allow those communications to be deemed not to be confidential.
One possible exception that would apply in the case of Giuliani is the crime-fraud exception to the attorney-client privilege.
One possible exception that would apply in the case of Giuliani is the crime-fraud exception to the attorney-client privilege. This exception arises when the attorney provided legal advice or counsel to the client and that advice was obtained in furtherance of an illegal or fraudulent activity. The communications must relate to a future crime or wrongdoing, as opposed to a past crime or wrongdoing.
The United States Supreme Court put it beautifully in 1933 when it held in Clark v. United States: “A client who consults an attorney for advice that will serve him in the commission of a fraud will have no help from the law. He must let the truth be told.”
As federal agents begin the process of reviewing the materials seized from his apartment and office, Giuliani absolutely should be nervous. We learned in Cohen’s case that special counsel Robert Mueller had been investigating Cohen for almost a year before the FBI raided his home, office and hotel room.
Giuliani has been on federal prosecutors’ radar since early 2019, which means they have had even longer to build a case against him. And don’t forget about Lev Parnas and Igor Fruman, who worked with Giuliani on Ukraine-related matters and were both indicted in 2019.
As it stands, there’s a good chance Rudy may also end up on the other end of a criminal indictment before year’s end.
