In the words of Donald Trump, “Rudy is great, but Rudy is Rudy.” Indeed, Rudy may have been so “great” that high-level Justice Department officials took steps to thwart or hamper a move by federal prosecutors in New York to seek or obtain search warrants against the Trump lawyer over his alleged activities in the Ukraine.
CNN reported Wednesday morning that prosecutors “raised the prospect of seeking a search warrant late last year for the lawyer’s communications but were met with resistance from Justice Department officials in Washington over the strength of their evidence.” The report is sourced only to unnamed “people familiar with the discussions.”
Prosecutors want to know whether that lawyer — Giuliani — violated foreign lobbying laws.
CNN said the question of whether to allow prosecutors to seek warrants against Giuliani reached Deputy Attorney General Jeffrey Rosen and others who ultimately punted the issue to the Biden Administration.
The CNN report appears at least temporally connected to a move by Rosen, as Acting Attorney General, to initial a Dec. 30 memo which contained a “clarification” as to whether — and when — federal prosecutors could seek warrants against attorneys who themselves became the subjects of investigations.
Rosen was Acting Attorney General from December 24, 2020 to January 20, 2021 when he signed the memorandum.
The document references Justice Manual Section 9-13.420, which governs situations where an attorney “suspect, subject or target.”
“Because of the potential effects of this type of search on legitimate attorney-client relationships and because of the possibility that, during such a search, the government may encounter material protected by a legitimate claim of privilege, it is important that close control be exercised over this type of search,” the Justice Manual explains.
The manual says such search warrant applications cannot be presented to judges “without the express approval of the United States Attorney or pertinent Assistant Attorney General.” The DOJ’s Criminal Division, Office of Enforcement Options, Policy and Statutory Enforcement Unit (PSEU) must also be sought out for advice before a federal prosecutor presents an application for a warrant to a judge.
The manual further lays out the procedure:
The prosecutor must provide relevant information about the proposed search along with a draft copy of the proposed search warrant, affidavit in support thereof, and any special instructions to the searching agents regarding search procedures and procedures to be followed to ensure that the prosecution team is not “tainted” by any privileged material inadvertently seized during the search. This procedure does not preclude any United States Attorney or Assistant Attorney General from discussing the matter personally with the Assistant Attorney General of the Criminal Division.
Exceptions apply in exigent circumstances (e.g., when prosecutors think evidence is at grave risk of being lost or destroyed).
But things changed with Rosen’s memo.
“As part of the consultation process described above, PSEU shall itself consult with the Office of the Deputy Attorney General, as set forth in the Attorney General’s December 30, 2020, memorandum,” the manual now says in direct reference to Rosen’s edict.
That means questions about whether to secure a search warrant against a subject attorney, as presented to the PSEU, must then be run past someone like Jeffrey Rosen. It’s an extra step in the process.
Rosen’s memo puts him — or someone in his position — in the know on such matters as whether or not a U.S. Attorney’s Office is seeking to search someone like Rudy Giuliani. From Rosen’s Dec. 30 memorandum:
In many cases — particularly those involving significant investigations and high-profile matters — proposed searches are separately reported in urgent reports to the Attorney General and the Deputy Attorney General. To ensure more uniform notification procedures going forward, PSEU should notify the Office of the Deputy Attorney General (ODAG) of proposed searches involving subject attorneys. ODAG will assign an attorney to handle this responsibility who has the requisite knowledge and experience to provide meaningful input to PSEU. That attorney will provide updates to the Deputy Attorney General as necessary. Absent exigent circumstances, the OEO/PSEU consultation in Section 9-13.420 shall not be concluded until after ODAG has been notified and provided with an opportunity to provide input.
That text does not mean that Rosen — or someone in his position — would necessarily stymie an investigation.
“Ordinarily, authorization of an application for such a search warrant is appropriate when there is a strong need for the information or material and less intrusive means have been considered and rejected,” the overarching manual reads.
Still, CNN insinuated — citing unnamed sources — that Rosen did, indeed, provide what CNN called “resistance” in the process of securing warrants against Giuliani under the memo’s “stiffened” requirements for pursuing such warrants.
If a warrant application is drawn up, it “should be drawn as specifically as possible, consistent with the requirements of the investigation, to minimize the need to search and review privileged material to which no exception applies,” the overarching manual says. The goal is to prevent investigators from coming across privileged information which can taint the team which reviews the material. A so-called “privilege team” is supposed to be named to triage material protected by the attorney-client privilege, and it is supposed to “consist of agents and lawyers not involved in the underlying investigation.”
Searches of attorneys are delicate affairs due to the sanctity of the attorney-client relationship, and the establishment of a privilege team is supposed to help protect the underlying investigation by ensuring that the core investigative and prosecutorial team does not see information that it shouldn’t see.
CNN reported that some within the DOJ questioned the sufficiency of the case against Giuliani and whether it would involve a “novel” interpretation of federal law in order to proceed. In other words, they thought a move against Giuliani was legally risky and, implicitly, subject to attack. And federal prosecutors don’t like to make moves that could result in an embarrassing high-profile loss.
The case, CNN noted, raises serious legal questions for the Biden administration’s Department of Justice over whether to pursue search warrants for — presumably — the “persons, houses, papers” or “effects” of an advisor and lawyer to a former president. But, the article also notes, the issue of a parallel election and election-related litigation is no longer a serious competing matter.
“Prosecutors are exploring the theory that Giuliani may have been engaged in undisclosed foreign lobbying for Ukrainian officials when he sought the ouster of the U.S. ambassador and an investigation into the Bidens for his own personal benefit at the same time he was pursuing those efforts as Trump’s attorney,” CNN said, again citing multiple unnamed sources.
Giuliani’s alleged dual role as possible foreign lobbyist and personal Trump attorney is among the issues CNN said prosecutors were struggling to understand.
Giuliani has not been accused of doing anything wrong. Giuliani’s own attorney, Robert Costello, told CNN that federal prosecutors have asked neither him nor his client directly for information. Costello “said he does not believe there is an active investigation into Giuliani because his client has not done anything wrong,” CNN noted. NBC News, however, said that an investigation into Giuliani was active as recently as late December.
The CNN report comes less than 24 hours after Time published transcripts of telephone calls Giuliani made to officials in the Ukraine to seek investigations which would politically advantage his client, Donald Trump. “My only motive—it isn’t to get anybody in trouble who doesn’t deserve to be in trouble,” Giuliani said in those calls.
[image via Andrew Burton/Getty Images]
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