With federal authorities now in possession of Rudy Giuliani’s electronic devices as a result of search warrants executed on his Manhattan residence and office Wednesday, federal officials anticipate a court fight over their potentially privileged contents.
Giuliani’s lawyer, Robert Costello, raised alarms in the hours after the warrants were served on his client, who previously represented former President Donald Trump, saying the devices are “replete with the material covered by the attorney-client privilege and other constitutional privileges.”
For more than two years, Giuliani has been the focus of an investigation in the Manhattan US Attorney’s office concerning his activities in Ukraine, including whether he conducted illegal lobbying for Ukrainian officials while he pursued an investigation linked to Trump’s primary political rival, then-candidate Joe Biden.
While prosecutors months ago pursued inquiries regarding his work in other countries, according to people familiar with the matter, the probe is now focused primarily on his Ukraine-linked activities.
Giuliani has denied wrongdoing, and in radio remarks on Thursday said, “What they’re doing to me as a lawyer is unconscionable.” He added: “I was representing my client when I did this — I wasn’t representing any Ukrainians, I was representing Donald J Trump, President or not, an innocent man who was being framed by a bunch of crooks.”
In an interview hours later on Fox News, Giuliani said the search warrants were “purportedly based on one single failure to file for representing a Ukrainian national or official that I never represented.”
“I’ve never represented a Ukrainian national or official before the United States government,” he said. “I’ve declined it several times.”
He also accused federal prosecutors of having accessed his iCloud during the first impeachment of Trump, which centered on his and Giuliani’s pursuit of an investigation of the Bidens in Ukraine, saying officials had employed “tactics only known in a dictatorship, when you seize a lawyer’s records right in the middle of his representation of his client. You should be prosecuted and disbarred for that.”
A spokesman for the Manhattan US Attorney’s office declined to comment on Giuliani’s public statements.
The execution of search warrants represents a significant advancement of the Giuliani investigation, in part because of the high bar prosecutors must clear to obtain court approval for such warrants to be used on an attorney like Giuliani — himself a former US attorney — or Trump’s other previous personal attorney, Michael Cohen, due to the likelihood of privileged material.
With Giuliani, prosecutors are bracing for the same type of court challenge they faced in the investigation of Cohen, who balked at the seizure of material from his home, office and hotel room, claiming reams of documents were subject to attorney-client privilege.
With the seizure of material from attorneys, prosecutors use a filter team — a set of lawyers who are not involved in the underlying investigation — to examine evidence and sort out privileged material, but in Cohen’s case he argued that step was insufficient.
Cohen’s attorneys first sought a temporary restraining order to prevent investigators from reviewing the seized material. After a federal judge denied that request, Cohen’s attorneys successfully sought the appointment of a “special master,” a court-appointed independent authority to review the material and determine which documents were privileged.
The special master ultimately concluded that privilege applied to only a small portion of the thousands of pages of seized documents.
Charges may not be filed for months
While the execution of search warrants represents a significant advancement of the Giuliani investigation, it doesn’t mean it is necessarily in its final stages.
In part because of the expected court challenge regarding privilege claims, any charges against Giuliani aren’t likely to be imminent and may not be filed for months, according to a person familiar with the matter.
In Cohen’s case, federal agents seized material from him in April 2018, the special master concluded her review on August 9 and federal prosecutors filed charges against Cohen just 12 days later.
As with Cohen’s case, any battle over privilege issues may attract the attention of their shared former client: Trump.
Trump’s lawyers joined in Cohen’s effort to block the government’s filter team review. In reacting Thursday to the Giuliani search warrants, Trump didn’t voice privilege-related objections, but because he no longer occupies the White House he now faces even greater legal exposure than he did during the Cohen investigation.
And the search warrant for multiple electronic devices comes at an interesting time for Giuliani and Trump. Last year, prosecutors in New York tried multiple times to obtain approval from Justice Department officials in Washington for the search warrant, including in advance of the 2020 election, but did not receive it.
They ultimately did receive it at some point after Trump left office, and as a result of the delay, the seized material may include all sorts of records and communications that prosecutors might not have received if the warrants were approved earlier.
The phone, computers, and icloud accounts could include Trump and Giuliani’s efforts to overturn the election results, including multiple court challenges and calls to state officials, and communications in advance of the January 6 riot on the US Capitol.
While there is no indication the current investigation extends beyond Giuliani’s efforts in Ukraine, prosecutors often expand investigations if they uncover evidence of another crime.
This story has been updated with further comments from Giuliani.