As prosecutors bear down on Rudy Giuliani, his legal team has made a decision: take his antics of the past two years and hold them up as a knot prosecutors will have to untangle.
Giuliani’s attorneys filed a letter on Monday in response to a request by Manhattan federal prosecutors to appoint a special master to oversee evidence gathered after the feds executed search warrants on Giuliani’s office and home last month. Agents also seized the phone of Victoria Toensing, an attorney who worked with Giuliani as he attempted to gather dirt from Ukraine on Joe Biden.
The former mayor is asking the judge to force prosecutors to give up the affidavits and underlying evidence for the warrants, while Toensing wants materials seized from her, overtly and covertly, returned. Both want the right of first review on any material taken under the warrants before they go to any special master or to the prosecutors.
The request itself is completely out of order, former federal prosecutor Harry Sandick told TPM.
“You don’t suppress evidence before theres been an indictment, he’s taking all the things out of sequence,” Sandick said.
But the issues underlying Giuliani’s arguments may be real, and could prove to be a headache for prosecutors investigating the former NYC mayor.
What’s more is that some of the issues Giuliani is raising were of his own, ex-President Trump’s, and Bill Barr’s creation, though former federal prosecutors told TPM that the issues raised in the letter appeared to be geared more towards public consumption than swaying the judge.
A lawyer himself, Giuliani represented Trump, and says that he fed information to the Justice Department. It’s a legitimately tangled web. Giuliani worked closely with Toensing, and Lev Parnas, an indicted associate of his, was hired by Toensing while she represented Ukrainian gas oligarch Dmitry Firtash.
Now, Giuliani and Toensing’s attorneys are arguing that the dense web of conflicts weave too thick a web for prosecutors to untangle. That creates what the former mayor’s lawyer, Bob Costello, argued is an impenetrable web of privilege, through which prosecutors can only rely on the former mayor as a guide.
“Given the complexity of Mr. Giuliani’s personal and professional relationships and the related communications, it is a near impossible task to accurately list all individuals with whom Mr. Giuliani had a privileged relationship or communications,” wrote Costello in the filing. “For these reasons, the privileged nature of certain communications would have been difficult or impossible for the 2019 ‘filter’ team to ascertain, and will be similarly difficult for a Special Master.”
Sandick pointed out that in the case of Michael Cohen, who also had a special master, only around 1 percent of evidence was discarded due to attorney-client privilege concerns. Trump also moved to intervene in that case, but has not yet asserted any privilege in the Giuliani litigation.
Other elements of the situation are downstream from DOJ politicization.
Giuliani brings up the fact that he gave information to the U.S. Attorney’s Office in Pittsburgh in the filing. That information was reportedly dirt on Hunter Biden – a component of the scheme for which Manhattan federal prosecutors are investigating the former mayor.
As Giuliani noted in the filing, at the same time as he was providing Pittsburgh prosecutors with information, Manhattan feds were taking steps to investigate him.
Giuliani’s attorney said that he has offered to answer questions from prosecutors over the past 18 months, so long as he can dictate the scope of the interview.
“During that same time period, Giuliani did in fact cooperate with Main Justice, through their designee in Pittsburgh on the subject of the Ukraine,” Costello wrote. “Amazingly, the SDNY continually turned down the offer by stating that while they would be happy to hear anything Mayor Giuliani’s counsel had to say, they refused to identify the subject, although those subjects were disclosed to the media.”
But former prosecutors in conversation with TPM doubted that the argument would carry much water.
Barb McQuade, a former U.S. Attorney, pointed out that there is such thing as a public authority defense, the same defense that allows DEA agents who engage in drug deals to avoid prosecution because they can argue that they were deputized by the government.
Giuliani has not yet raised that argument, though he’s gotten close to it by occasionally asserting that he was working on the State Department’s behalf or was cooperating with the DOJ.
“If he could make out that the AG knew, then that could be a defense, but it doesn’t sound like that’s what was going on here,” McQuade said.
Nick Akerman, a former Watergate prosecutor, told TPM that it could give the DOJ a wider area to search in if prosecutors are pursuing foreign lobbying charges.
“You have to find out if there’s any substance to this defense: did he tell them anything that has any material impact on any kind of defense he’d make here? And would that excuse him from filing the usual FARA forms?” Akerman said. “I’d be checking with everybody in the department who had any contact with him to see exactly what that contact was, because my guess is theres a lot of things he may not have disclosed.”
Giuliani also raised the idea that since Trump DOJ higher-ups declined to approve the search warrant twice, that constitutes evidence of political interference.
It was only after Attorney General Merrick Garland took office that the search warrant was executed. Giuliani’s counsel made significant hay of this, arguing that prosecutors only prevailed on a “do-over” application.”
To Patrick Cotter, a former federal prosecutor in Chicago now in private practice, that made little sense.
“Sometimes clients will come to you and say, ‘we keep getting punched by the government, when are we gonna punch back?'” he said. “Most lawyers tell them flailing meaninglessly against the government is not punching back – the reality is the way this works is that the government gets to investigate, and if and when they bring charges, then we look at the indictment and we fight back.”