Perjury Trapped: Rudy Giuliani’s Sync Sink

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As I noted here, I’m just beginning to go through the warrants from SDNY’s Lev Parnas and Rudy Giuliani investigation the NYT liberated.

I want to start with a very minor point about the apparent inconsistencies between what SDNY found when they conducted searches on Rudy’s cloud and what Rudy claimed — purportedly under penalty of perjury — before Beryl Howell.

In the Ruby Freeman case — the first one, not her renewed suit to enjoin him from continued lies about her — Rudy claimed that he didn’t need to separately search his messaging accounts, because his phones were all synced to his iCloud.

All of my [redacted]@icloud.com iCloud data would have also been included in the TrustPoint data because I synced my iCloud to my devices.

But SDNY, when they searched his iCloud back in 2019, discovered that known messages were not there.

On or about November 4, 2019, the USAO and FBI sought and obtained from the Honorable J. Paul Oetken, United States District Judge for the Southern District of New York, a warrant (the “November 4 Warrant”) for records in iCloud accounts belonging to Giuliani and [Victoria Toensing].

[snip]

As discussed above, on November 4, 2019, the FBI and USAO sought and obtained a search warrant for, among other things, Giuliani’s iCloud account. However, the iCloud did not contain many of the text messages outlined above with Parnas and [Fruman] during the December 2018 to April 2019 time frame. Based on my training and experience, as well as my review of records provided by Apple, I believe the iCloud account did not contain text communications from early 2019 because Giuliani did not backup that content, or removed it from the backup, and not because it does not exist. Indeed, for the reasons set forth below, including Giuliani’s public statement that he has retained potentially relevant communications on his cellphones, there is probable cause to believe that, unlike the iCloud account, evidence of the Subject Offenses continue to be maintained on the Subject Devices.

But, according to Robert Costello, in a declaration that — unlike Rudy’s — was actually notarized and so worth something if you ignore the obvious spin in his representations of what SDNY told him — when SDNY reviewed at least seven of those devices, they were corrupted.

Rudy’s messaging wasn’t in his iCloud when SDNY looked in 2019. And it wasn’t in his phones when SDNY looked in 2021. And yet this year, he claimed the content in both places would be the same.

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27 replies
  1. EW Moderation Team says:

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  2. Beej_20DEC2023_1626h says:

    From what I’ve heard on several legal podcasts, the Obstruction of an Official Proceeding statute that’s been used against some of the J6 defendants and also Trump was written post-Enron because employees were destroying emails relevant to a warrant. This makes me wonder if Rudy could catch a charge of it too based on his actions here, assuming he deleted these texts.

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      • licked says:

        Lol, “It’s a blog comment”!

        I only lurk here, but you are a real asshole. Is there a way to block bmaz? I’d really like to read this blog and comments without people like this.

        [Welcome back to emptywheel. SECOND REQUEST: Please choose and use a unique username with a minimum of 8 letters. We are moving to a new minimum standard to support community security. You may also wish to acquaint yourself with the persons listed in the About page of this site; ad hominems aimed at contributors/moderators/community members are not acceptable. /~Rayne]

        • still noromo says:

          Oh, dude….

          [Moderator’s note: This comment wasn’t necessary. Let the mods handle it. A swath of replies to a trollish comment already had to be removed today — let’s avoid another such housekeeping event. /~Rayne]

      • Operandi says:

        Congress enacted § 1512(c)(2) as part of the Sarbanes-Oxley Act. That “Act, all agree, was prompted by the exposure of Enron’s massive accounting fraud and revelations that the company’s outside auditor, Arthur Andersen LLP, had systematically destroyed potentially incriminating
        documents.” Yates, 574 U.S. at 535–36.

        – United States v. Fischer, 64 F.4th 329 (D.C. Cir. 2023).

        Whether Congress intended to include such an expansive obstruction provision in an act otherwise focused on corporate accountability merited several pages of analysis in the DC Circuit’s Fischer opinion.

        With Fischer now having been granted cert, I’ve witnessed several lawyers opine that SCOTUS might disagree with that section of reasoning. This includes lawyers who sully themselves by publishing their opinions in audio form instead of the reserving them for prickly blog comments. As one example: the topic of 1512(c)(2)’s odd provenance came up on the latest episode of Popehat’s podcast. The very same episode that Marcy recommended everyone “should definitely listen to” just yesterday.

        • bmaz says:

          I neither listen to, nor comment on, podcasts. But am here if you have written commentary. As I always have been.

  3. Ex fed_20DEC2023_1628h says:

    The declaration by Rudy is every bit as binding as a notarized statement. 28 USC 1746. See https://www.justice.gov/archives/jm/criminal-resource-manual-1760-perjury-cases-28-usc-1746-unsworn-declarations-under-penalty#:~:text=If%20executed%20within%20the%20United,foregoing%20is%20true%20and%20correct.

    [Welcome to emptywheel. Please choose and use a unique username with a minimum of 8 letters. We are moving to a new minimum standard to support community security. Because your username is far too common (there are other community members who have used “Ex fed/ExFed or a variant) it will be temporarily changed to match the date/time of your first known comment until you have a new compliant username. Please also note that disposable email addresses are not permitted. We do not require a valid working email address, only consistency using the same address. /~Rayne–]

      • Ex fed says:

        Notarized statements are just writings that you sign in front of a notary (or sign by yourself under penalty of perjury). There’s no examination or cross-examination (in almost all cases).

        [Welcome to emptywheel. SEE YOUR PREVIOUS COMMENT AT 4:28 P.M. Please choose and use a unique username with a minimum of 8 letters. We are moving to a new minimum standard to support community security. Because your username is far too common (there are other community members who have used “Ex fed/ExFed or a variant) it will be temporarily changed to match the date/time of your first known comment until you have a new compliant username. You used another email address; please also note that disposable email addresses are not permitted. We do not require a valid working email address, only consistency using the same address. /~Rayne–]

  4. Harry Eagar says:

    Maybe I am beginning to become too conspiratorial, but is the underlying lesson of your last two posts that if 1) I am a criminal 2) whose crimes are enshrined on my iPhone, then 3) I can subvert that phone as evidence by ‘corrupting’ my phone every few weeks or so?

  5. David Miller says:

    Apple doesn’t keep all of your iCloud data on every device. When you need more room on the device, it strips away big files you haven’t used in a while, leaving only the file names (etc.). Then is downloads on demand what you need.

    • Baltimark says:

      That may well be true, but it’s not germane to the question at hand, unless I’m missing something. SDNY searched the cloud account and found that it did not include messages confirmed by other means to have been sent or received on Giuliani’s local physical devices. The implication is that messages on local devices that SHOULD have been copied to and retained in the cloud either were not so copied or (maybe?) were subsequently deleted.

      • Rayne says:

        Given Rudy’s claimed expertise and experience, it seems odd he’d have so many problematic devices and so much corrupted data…

        January 2016 – global chair for cybersecurity and crisis management group at 9th largest US law firm, Greenberg Traurig (https://en.wikipedia.org/wiki/Greenberg_Traurig)

        January 2017 – named Trump’s cybersecurity adviser (https://www.washingtonpost.com/news/powerpost/wp/2017/01/12/trump-names-rudy-giuliani-as-cybersecurity-adviser/)

        The dipshit had to use Apple’s Genius Bar because he fucked up his passcode in February 2017, one month after being named Trump’s cybersecurity adviser. (https://www.nbcnews.com/news/us-news/rudy-giuliani-needed-apple-genius-help-unlock-his-iphone-after-n1074241)

        Worth reading that NBC piece because of the blurb about his butt dialing reporters; they could hear he was looking for cash.

        • Old Rapier says:

          Everything about Rudy is problematic. He’s a publicity hound and a fruitcake, in interchangeable order. There is no bottom he won’t explore, no degree of humiliation he won’t dive into in order to keep his name in play, everywhere. In days gone by he would be called a boor and a lush, but they didn’t have Viagra back then.

          I get it. The world likes boors and lushes as entertainers. Take Harry Carry, a perfectly lovable lush and and boor. If only Rudy had taken up sportscasting a lot less damage would have been done.

        • Savage Librarian says:

          Sportscasting may not be as innocuous as you might hope. Keep in mind that Susie Wiles’ famous sportscaster father, Pat Summerall, had a master’s degree in Russian history. I wonder if he would be pro Russia or pro Ukraine if he were still alive. I wonder what Susie is.

          Also, recall that Susie sat in on a meeting that Trump had with Viktor Orban (Prime Minister of Hungary) at Bedminster prior to Orban and Trump speaking at CPAC 2022 (held in Dallas from August 4 to 6.)
          I wonder if Orban knows anything about those missing documents from the missing 10 inch binder.

          Also, in the recent buzz about a staff for a potential future Trump administration, Susie Wiles has been mentioned as a strong contender for chief of staff.

        • LaMissy! says:

          Posts like yours are what make the comments section here indispensable to figure out wtf is going on. Thanks for giving me yet another name to keep an eye out for.

  6. IainUlysses says:

    Given Rudy’s periodic butt dialing of people, I believe it’s completely possible he was mistaken and not lying. Until we get to multiple corrupted devices. That seems weird and oddly convenient.

    • Shadowalker says:

      Does this count?
      “ when SDNY reviewed at least seven of those devices, they were corrupted.”

      So where do we go from here?

      I will say one thing. Not exactly a ringing endorsement on reliability of Apple products. Or Rudy is simply terrible with electronic devices.

      • boatgeek says:

        While the plural of anecdote is not data, my iPhone 6s has been ticking along fine for 8 years now, with only one battery replacement along the way. That said, it is extremely slippery without a cover, so it’s entirely possible that Rudy keeps dropping them in the toilet.

      • IainUlysses says:

        I did wonder if “corrupted” was sloppy terminology. I followed the link to the earlier post and, yeah, emptywheel expanded on that possibility, along with others. I Should have done that first. My reading from that is that Costello is deliberately being sloppy in his language to make it sound like the government screwed up via their vendor.

        I need to follow the link trail more to get up to speed.

  7. Rugger_9 says:

    There seem to be an awful lot of convenient holes in the record, and FWIW if Rudy lied to investigators about the emails then it’s another rap to add. Martha Stewart could afford better lawyers and she still went to Club Fed for lying to the investigators.

    I also wonder whether this is tied to the Russians, this kind of thing has a ham-handed cleanup smell to it.

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