Justice ramps up Giuliani probe
The FBI’s search of Rudy GiulianiRudy GiulianiDOJ declines to back Mo Brooks's defense against Swalwell's Capitol riot lawsuit Bob Dole: 'I'm a Trumper' but 'I'm sort of Trumped out' Ex-Trump adviser Barrack charged with secretly lobbying for UAE MORE’s office this week signals that federal law enforcement is significantly ramping up its investigation into former President TrumpDonald TrumpRealClearPolitics reporter says Freedom Caucus shows how much GOP changed under Trump Jake Ellzey defeats Trump-backed candidate in Texas House runoff DOJ declines to back Mo Brooks's defense against Swalwell's Capitol riot lawsuit MORE’s ally and onetime legal adviser.
Little is known about the scope of the investigation, but reporting suggests that the focus could be on Giuliani’s work on behalf of foreign clients, including Ukraine, and his failure to register as a foreign agent while serving as the president's personal attorney.
And former Department of Justice officials say that such an investigation into a high-profile lawyer that could jeopardize attorney-client privilege would likely need authorization from some of the highest-ranking law enforcement officials in the government.
Giuliani’s home and law office were searched at dawn Wednesday, with FBI agents seizing as many as eight of Giuliani’s electronics.
It’s a remarkable development for a high-level Trump associate who avoided formal Justice Department action even as others in Trump’s orbit were implicated in former special counsel Robert MuellerRobert (Bob) MuellerSenate Democrats urge Garland not to fight court order to release Trump obstruction memo Why a special counsel is guaranteed if Biden chooses Yates, Cuomo or Jones as AG Barr taps attorney investigating Russia probe origins as special counsel MORE's investigation.
“This is not any attorney. It’s the former U.S. attorney and mayor and very prominent ally of the previous president so you can just be certain that the procedural requirement was on steroids here,” said Harry Litman, a former U.S. attorney and deputy assistant attorney general during the Clinton administration.
“This is something where everyone wants to make sure the I’s are dotted and the T’s are crossed.”
David Laufman, who oversaw foreign agent investigations as the former head of the Justice Department's counterintelligence squad, also said the department has procedures in place to ensure such high-profile investigations are properly reviewed and outside “filter teams” are used to screen information that could be protected under attorney-client privilege.
“Seeking search warrants of the residence and electronic devices of prominent lawyers previously working for the president of the United States are going to get the highest level of scrutiny at Justice Department leadership levels,” said Laufman, now a partner at the law firm Wiggin and Dana. “As they should.”
Giuliani, who has represented Ukrainian oligarchs, faces questions on whether he violated the law by failing to register as a foreign agent for his work advocating on behalf of Ukrainian officials. Law enforcement were also seeking information on Giuliani’s role in seeking to push former U.S. Ambassador to Ukraine Marie YovanovitchMarie YovanovitchGiuliani hires attorneys who defended Harvey Weinstein The Hill's Morning Report - Presented by Emergent BioSolutions - Facebook upholds Trump ban; GOP leaders back Stefanik to replace Cheney Former Ukrainian prosecutor says he was fired for not investigating Hunter Biden: report MORE from her post, according to reporting from The New York Times.
In 2019, Giuliani had reportedly been in negotiations to do work on behalf of Ukrainian officials like Yuriy Lutsenko, the country’s former top prosecutor who wanted Yovanovitch fired. According to the Times, Giuliani signed one of the various proposed retainers that had been presented but ultimately decided against doing the work.
The former New York mayor said there was “no justification for that warrant” during an interview with Fox News’s Tucker CarlsonTucker CarlsonDon Lemon defends Tucker Carlson amid confrontation video Fox News blasts 'ambush' of Carlson at Montana fly-fishing store Psaki says Biden admin 'needs' Fox News in order to fight vaccine misinformation MORE Thursday night. He’s denied any wrongdoing, saying that he’s never agreed to lobby the U.S. government on behalf of any Ukrainian clients.
“I've never represented a Ukrainian national or official before the United States government. I've declined it several times,” Giuliani said.
“I've had contracts in countries like the Ukraine, in the contract is a clause that says ‘I will not engage in lobbying or foreign representation.’ I don't do it because I felt it would be too compromising. Here I am in the middle of representing the president of the United States on a charge that I believe he was innocent of. I have great passion about that. If you're a lawyer, there's no greater burden you can have,” he added.
But Ben Freeman, the director of the Foreign Influence Transparency Initiative at the Center for International Policy, thinks that Giuliani may be more exposed to potential liability than he claims because of how broad the language is in the Foreign Agents Registration Act (FARA), which governs the disclosure of work within the U.S. on behalf of foreign principals.
“In fact, a lot of what we see in FARA filings are folks that are doing work pro bono,” Freeman said. “In other cases there’s no explicit contract, it's just a formal or informal agreement between the foreign agent and the foreign principal. So you don't actually need a contract to qualify to register under FARA, and money doesn't have to change hands. This is another area where the FARA statute is really broad; if you're doing something at the request of a foreign principal, then that can trigger FARA registration.”
Observers suspect there could be more to come beyond FARA violations — both for Giuliani and others with ties to Trump.
“All the consensus among the tea leaves is it is more likely than not some type of criminal charges are coming,” Bradley Moss, a national security law expert, told The Hill by email, adding that officials only would have proceed “after senior Justice officials were convinced the case is about as rock solid as it could be at this stage.”
Law enforcement also seized the phone of Victoria Toensing, a lawyer and Republican operative who has also represented Ukrainian oligarchs.
Part of the complexity with issuing warrants against lawyers like Giuliani and Toensing is fear that some of the information could be protected communications.
Robert Costello, Giuliani’s attorney, said in a statement Wednesday that the devices were “replete with material covered by the attorney client privilege.”
“The main reason to really worry about stumbling into attorney-client privileged information is that you’re not supposed to see it, of course, but it can wind up disqualifying somebody from the whole case. It’s sort of a gamma death ray,” Litman said.
But he noted not every exchange between Trump and Giuliani would be covered, since it applies to cases where a client is specifically attaining legal counsel.
And Giuliani played a number of informal roles in the Trump administration, occasionally jumping into PR roles or working as a shadow ambassador.
“He can’t cloak himself in attorney-client privilege in any and all roles,” Litman said.
Mark Osler, a former federal prosecutor who now teaches at the University of St. Thomas School of Law, said the Giuliani team may also be overexaggerating what could be covered.
“One thing about attorney-client privilege is it doesn’t apply when a third party is present, and my hunch is there are some things Rudy Giuliani may hope are subject to privilege that maybe won't be because of that rule,” he said.
It could be months before it becomes clear what the Justice Department gathers from the search and whether it results in charges — and if those charges could be severe enough to push Giuliani to flip on Trump and enter a plea deal with the government.
“Whether Mr. Giuliani would turn on others in order to save his own skin is tough to predict, especially for someone who so publicly espouses the need for loyalty. Unless there is simply an insurmountable array of charges leveled against him, it is unlikely that he would turn on his long-time ally, Mr. Trump. Doing so would not only burn his remaining political bridges, but also mean he was conceding he’ll never practice law again either,” Moss said.
Laufman, the former head of the Justice Department's counterintelligence and export control section, added, “I think people in his orbit who have reason to believe that they communicated with Mr. Giuliani about the very conduct ostensibly at issue with this investigation have reason for concern.”
Freeman, of the Foreign Influence Transparency Initiative, believes that the Justice Department has had ample reason for quite some time to look into Giuliani’s work for foreign clients.
“All of this is already out there, even before Giuliani's office gets raided yesterday,” he said. “So for me then, when Giuliani's office gets raided yesterday, my first question was, what took so long?”