The [Thus Far] Missing Seth DuCharme Emails Pertaining to Rudy Giuliani’s Russian Disinformation

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As I’ve been harping of late, Billy Barr and Jeffrey Rosen went to great lengths to protect Rudy Giuliani’s efforts to obtain and disseminate what the Intelligence Community already knew was Russian-backed disinformation laundered through Andrii Derkach. That effort included the following:

  • For whatever reason, not warning Rudy that the Intelligence Community knew Russia was targeting him for an information operation before he traveled to his December 2019 meeting with Derkach
  • Prohibiting SDNY from expanding its existing investigation into Rudy’s foreign influence peddling to include his efforts with Derkach by making EDNY a gate-keeper for any such decisions
  • Asking Pittsburgh USA Attorney Scott Brady to accept the information that the IC already knew was Russian disinformation from Rudy
  • Doing nothing while Rudy continued to share information the IC already knew was Russian disinformation during an election
  • After belatedly opening an investigation into the Derkach effort that the IC had known was Russian disinformation for a year, opening it at EDNY and scoping it to ensure that Rudy’s own actions would not be a subject of the investigation

As a result of this remarkable effort, led by the Attorney General and Deputy Attorney General, to protect Russian disinformation, DOJ willingly ingested a bunch of Russian disinformation and used it to conduct an investigation into the son of the President’s opponent.

Last year, when it was disclosed that Barr had directed Brady to willingly accept this Russian disinformation, American Oversight FOIAed and then sued for the paper trail of the effort, submitted as four separate FOIAs:

  1. [To OIP and USAPAW] “Brady Order and Written Approval” — which specifically asked for “two readily-identifiable, specific documents” — described as:
    • The written approval of the Attorney General or Deputy Attorney General authorizing U.S. Attorney for the Western District of Pennsylvania (USAPAW) to create and/or administer a process for receiving purported investigatory information from Rudy Giuliani concerning matters that relate to former Vice President Biden
    • A copy of the Attorney General’s order directing USAPAW to conduct an evaluation, review, probe, assessment, “intake process,” preliminary investigation
  2. [To OIP and USAPAW] “Giuliani Directives, Guidance, & Communications,” described as:
    • All directives or guidance provided to USAPAW regarding an evaluation, review, probe, assessment, “intake process,” preliminary investigation, or other investigation of any information received from Rudy Giuliani, including information that may concern former Vice President Biden
    • All records reflecting communications between (1) the Office of the Attorney General or the Office of the Deputy Attorney General and (2) USAPAW regarding an evaluation, review, probe, assessment, preliminary investigation, or other investigation of any information received from Rudy Giuliani
    • All records reflecting communications within the OAG or the ODAG regarding any evaluation, review, probe, assessment, “intake process,” preliminary investigation, or other investigation of any information received from Rudy Giuliani, including information which may concern former Vice President Biden
  3. [To USAPAW] “Brady-Giuliani Communications,”described as all records reflecting communications between (1) USAPAW in the course of any evaluation, review, probe, assessment, “intake process,” preliminary investigation, or other investigation of any information received from Rudy Giuliani and (2) Rudy Giuliani, or any of Mr. Giuliani’s personal assistants or others communicating on his behalf, including but not limited to Jo Ann Zafonte, Christianne Allen, or Beau Wagner
  4.  [To USAPAW] “Brady-White House Communications,” described as any communications between (1) USAPAW in the course of any evaluation, review, probe, assessment, “intake process,” preliminary investigation, or other investigation of any information received from Rudy Giuliani and (2) anyone at the White House Office

Before American Oversight filed the lawsuit, the Trump Admin did two things that will have an effect on what we’re seeing. First, DOJ combined requests one and two above; as we’ll see, that had the effect of hiding that Barr didn’t put anything in writing. In addition, USAPAW told American Oversight that they were going to refer the request for such an order to Main Justice for referral.

While the lawsuit was filed under the Trump Administration, the substantive response to it started in February. The FOIA is a way to understand more about this effort — both how willing Barr’s DOJ was to put this scheme in writing, as well as the volume of paper trail that it generated.

The first status report, submitted on February 22, revealed the following based on an initial search:

  1. “Brady Order and Written Approval” and “Giuliani Directives, Guidance, & Communications” (aggregated) at Main DOJ: 8,851 items
  2. “Giuliani Directives, Guidance, & Communications” and “Brady-Giuliani Communications” at USAPAW: 1,400 pages
  3. “Brady-White House Communications:” none

The second status report, submitted on April 1, reported that of the initial search, the following was deemed potentially responsive:

  1. “Brady Order and Written Approval” and “Giuliani Directives, Guidance, & Communications” (aggregated) at Main DOJ: 30 pages referred
  2. “Giuliani Directives, Guidance, & Communications” and “Brady-Giuliani Communications” at USAPAW, of 272 pages reviewed so far:
    • 3 pages released in full
    • 189 pages referred to other agencies for consultation
    • 83 duplicates or non-responsive

Here is the USAPAW production.

The third status report, submitted on May 3, reported the following:

  1. “Brady Order and Written Approval” and “Giuliani Directives, Guidance, & Communications” (aggregated) at Main DOJ:
    • 18 pages released in partly redacted form
    • 4 pages withheld entirely under b5 deliberative exemption
    • 6 pages awaiting a response from some other component
  2. “Giuliani Directives, Guidance, & Communications” and “Brady-Giuliani Communications” at USAPAW, of 263 pages reviewed this month:
    • 5 pages released, 3 of which include b6, b7A and b7C redactions
    • 14 pages referred to another component
    • 244 pages non-responsive or duplicates

Here is the USAPAW production and here is the Main DOJ production.

Here’s what has currently been provided to American Oversight (go here for live links).

Note, this may be clarified in upcoming dumps, but for now, there appears to be something very irregular with the OIP response. At first, DOJ said there were up to 8,851 items that were responsive to American Oversight’s request. But with the next status report, DOJ said there were just 30 pages. The most recent release claimed to account for 28 of those 30 pages.

In the second joint status report, OIP stated that it had completed its search and its initial responsiveness and deduplication review of potentially responsive documents and identified approximately 30 pages of material likely responsive to Plaintiff’s request. See ECF No.7, ¶ 2. OIP further stated that it had sent these records out for consultation pursuant to the Department’s regulations, 28 C.F.R. § 16.4(d), and expected to be able to provide its first response to Plaintiff on or around April 29, 2021. Id. On April 29, 2021, OIP made its first interim response. It released 18 pages in part with portions redacted pursuant to Exemptions 5 and/or 6 and withheld four pages in full pursuant to Exemption 5. OIP is awaiting responses from other components on the remaining six pages.

The math looks like this:

18 pages released

4 pages withheld under b5 exemption*

6 pages referred to another component

Total: 28 pages

Remaining: 2 pages

That’s a problem because there are at least two pages of emails that were part of the USAPAW response that must have had a counterpart at DOJ, as well as one missing from both (though USAPAW has 1000 pages to release):

  • A January 3, 2020 email from Seth DuCharme to Scott Brady asking, “Scott do you have time for a quick call today in re a possible discreet assignment from OAG and ODAG?” (Brady’s response, which includes DuCharme’s original, is included in both, but the copy released by OIP was printed out from Brady’s account, not DuCharme’s).
  • A February 11, 2020 email from Brady to DuCharme, asking “Seth, do you have a few minutes to catch up today?” The email should exist in both accounts, and should be included in both OIP and USAPAW’s response.
  • A March 5, 2020 email from Brady to DuCharme, asking “Seth: do you have 5 minutes to talk today?”

Brady resigned effective February 26 and DuCharme resigned effective March 19. At the time he resigned, DuCharme was supervising an investigation into this Derkach stuff, one that excluded Rudy as a subject.

I assume this will become more clear with further releases (indeed, American Oversight may have the next installment already). Perhaps there’s a sound explanation. But thus far, it looks like only the Brady side of exchanges between him and DuCharme have been provided in response.

* The response letter to Jerry Nadler was two pages long, and the draft was sent twice (or there were two drafts), so those probably account for the 4 pages withheld on b5 exemptions.

Rudy Giuliani’s Alleged “Cooperation” Is a Threat to Lay out How Bill Barr and Jeffrey Rosen Protected Russian Disinformation

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Now that I’ve waded through Rudy Giulilani’s response to learning that SDNY had conducted a covert search on him in November 2019 before it conducted an overt search in April 2021, I’m certain Rudy engaged in just the kind of bad lawyering SDNY hoped he would — more on that in a week or so.

But a big part of his letter was not an attempt to engage in good lawyering, but instead to send messages to a variety of people. He provided co-conspirators a map they can use to understand which of their communications are in SDNY’s hands, and which are not. But he also laid out what he called his “cooperation,” which aside from minimal claims (which SDNY disputed) to have cooperated with SDNY against Lev Parnas and Igor Fruman, really amounts to the corrupt stuff he believed he was protected for because he did it on behalf of Donald Trump. Indeed, he claims that if Judge Paul Oetken only knew he had permission to do all this stuff, then he wouldn’t have approved the warrants against him.

It is unknown if the Government informed the Court of Giuliani’s cooperation with the State Department or his offers to cooperate with the SDNY or his actual cooperation with the Western District of Pennsylvania.

His first claim of “cooperation” revisits claims he made in the wake of the whistleblower complaint in 2019, claiming that he was working closely with State when he was lobbying to fire Marie Yovanovitch.

It was premature and unwarranted for the Government to seize Giuliani’s ESI because Giuliani had already cooperated with the US State Department (“State”) through Mike Pompeo, the Secretary of State, in March 2019 concerning Ukraine. He also cooperated again in July and August of 2019 at the request of the State Department in assisting them with regard to Ukraine.

This is almost certainly the meat of the SDNY investigation, and whatever else Rudy has done by invoking it, he has put Mike Pompeo on the hotseat.

It may not be a coincidence that in the wake of this letter, Gordon Sondland sued Mike Pompeo for covering up what really happened in State in 2019 and provided several excuses — most importantly, that Pompeo refused to let him access his own backup materials before testifying — for why his two existing sessions of sworn testimony might conflict with what SDNY seized from Rudy.

In his other claim of cooperation, Rudy detailed how he shared disinformation from Russian agent Andrii Derkach with DOJ, which he described as “cooperation” with Main Justice in the guise of its delegate, Pittsburgh US Attorney Scott Brady.

Before I repeat Rudy’s description of how he shared disinformation from Andrii Derkach with a hand-picked and very pro-Trump US Attorney, consider several details: first, immediately in the wake of the raid on Rudy in April, there were leaked explanations for how Rudy managed to meet with a known Russian agent — right in the middle of impeachment!! — even though both National Security Advisor Robert O’Brien and FBI’s Counterintelligence folks knew that Russia was feeding Derkach disinformation to feed to Rudy.

The WaPo originally reported that the FBI had warned Rudy, but had to retract that. Rudy never got warned.

Correction: An earlier version of this story, published Thursday, incorrectly reported that One America News was warned by the FBI that it was the target of a Russian influence operation. That version also said the FBI had provided a similar warning to Rudolph W. Giuliani, which he has since disputed. This version has been corrected to remove assertions that OAN and Giuliani received the warnings.

The FBI became aware in late 2019 that Rudolph W. Giuliani was the target of a Russian influence operation aimed at circulating falsehoods intended to damage President Biden politically ahead of last year’s election, according to people familiar with the matter.

Officials planned to warn Giuliani as part of an extensive effort by the bureau to alert members of Congress and at least one conservative media outlet, One America News, that they faced a risk of being used to further Russia’s attempt to influence the election’s outcome, said several current and former U.S. officials. All spoke on the condition of anonymity because the matter remains highly sensitive.

The FBI became aware of the Russian information operation at a time when Giuliani was deeply involved with former president Donald Trump’s 2020 reelection campaign and related activities in Ukraine to surface unflattering or incriminating information about the Biden family.

[snip]

In late 2019, before Giuliani’s trip to Kyiv, U.S. intelligence agencies warned the Trump White House that Giuliani was the target of a Russian influence operation, as The Post reported last year. Officials became concerned after obtaining evidence, including communications intercepts, that showed Giuliani was interacting with people tied to Russian intelligence. The warnings led then-national security adviser Robert C. O’Brien to caution Trump that any information Giuliani brought back from Ukraine should be considered contaminated by Russia.

Then, after matching the WaPo’s original story and similarly having to retract it, NBC offered an explanation why Rudy wasn’t given that briefing: because it would “complicate” what NBC called “the criminal investigation” into Rudy.

The FBI prepared a so-called “defensive” briefing for Rudy Giuliani in 2019 in which agents were poised to warn him he was being targeted by a Russian intelligence influence operation as he sought to gather opposition research on the Biden family, according to a source familiar with the matter.

But that briefing was not given, according to a second source familiar with the matter, because of concerns that the briefing could complicate the criminal investigation into the former New York City mayor.

Yet, at the time Rudy would have gotten this warning, SDNY had already shown probable cause Rudy was an agent of one or another pro-corruption Ukrainians, almost certainly Yuri Lutsenko in his efforts to fire Marie Yovanovitch. Without a Derkach angle to the SDNY investigation — an angle Jeffrey Rosen went to great lengths to prevent them from pursuing — it’s not clear how it would have complicated that investigation.

Rudy didn’t get his warning and instead of warning him, Trump said that was Rudy being Rudy. So Rudy first met with Lutsenko, the subject of the first investigation, and headed from that meeting directly to meet with Derkach.

A month later, Rosen issued a memo prohibiting any prosecutors from expanding the scope of their already opened investigations, which would have had the effect of preventing SDNY from investigating Rudy’s ongoing influence peddling for known Russian agent Andrii Derkach, about whom FBI decided not to warn Rudy even though everyone briefed on it knew it was a Russian intelligence operation.

But that wasn’t the only thing that Billy Barr and Rosen’s efforts to divvy up Ukrainian investigations did. After Rosen wrote that memo (ensuring no one could start an investigation into Rudy’s dalliances with Derkach), but still a week before Trump was acquitted for coercing dirt from Ukraine to use against Joe Biden, per Rudy’s timeline, Barr assigned Pittsburgh US Attorney Scott Brady to oversee intake of all Ukrainian dirt and, within a day, Rudy was in the business of sharing Derkach’s dirt directly with Pittsburgh’s US Attorney’s office.

In his letter, Rudy clearly identifies four of the nine people who rushed to accept Rudy’s dirt, which the government had identified as Russia disinformation before he went to collect it in December.

[I]n January 2020, counsel for Giuliani contacted high officials in the Justice Department, to inform them that Giuliani wanted to provide evidence for their consideration about the Ukraine. Within a day, the United States Attorney for the Western District of Pennsylvania, Scott W. Brady, contacted Giuliani’s counsel and offered to hold a meeting in Pittsburgh with both the United States Attorney’s office personnel and the FBI. Mayor Giuliani immediately accepted, and a meeting was scheduled for January 29, 2020.

On January 29, 2020, Mayor Giuliani and his counsel, flew to Pittsburgh at their own cost, where they were met by agents of the FBI and transported to FBI headquarters in Pittsburgh. Present at that meeting were the United States Attorney, the First Assistant United States Attorney, the Chief of the Criminal Division, and two additional Assistant United States Attorneys (“AUSA’s”) from the Western District of Pennsylvania. The FBI was represented by the Special Agent in Charge (“SAIC”) of the Pittsburgh FBI, the Assistant Special Agent in Charge (“ASAIC”), and three other special agents of the FBI.

Prior to the meeting, Giuliani’s counsel had provided the Pittsburgh United States Attorney’s office with documents and an extensive outline of the subject matter to be discussed, so that the Government could be fully informed and prepared to ask probing questions. Giuliani began the meeting by making a presentation with handouts. During his presentation, and at the end of it, the Mayor and his counsel answered every question they were asked, to the apparent satisfaction of all of the Government officials in the room. In addition to the presentation, Giuliani provided the Government with the names and addresses of individual witnesses, both in the United States and in Ukraine, that could corroborate and amplify the information that the Mayor was providing. Subsequent to that meeting, and covering a period of months, counsel for Giuliani received a number of inquiries, discussions and requests from the First Assistant United States Attorney. All requests were granted and all inquiries were answered. [my emphasis]

And, as Rudy tells it, that First AUSA kept coming back for more, a claim (like his other claims about the personnel involved) that matches a story published in the NYT after those involved knew that Trump had lost. That story also described that Brady kept pushing for inappropriate investigative steps until, ultimately, Seth DuCharme had to get involved.

Officials said that Mr. Brady almost immediately started pushing to take aggressive steps. He had a list of people he wanted F.B.I. agents to question. It was not clear whether they were the same witnesses that Mr. Giuliani and Mr. Costello had submitted, but a former law enforcement official said that Mr. Brady had wanted the F.B.I. to question people mentioned in Mr. Giuliani’s materials.

The steps were outside “normal investigative procedures,” one former senior law enforcement official with knowledge of the events said, particularly in an election year; Justice Department policy typically forbids investigators from making aggressive moves before elections that could affect the outcome of the vote if they become public.
The Pittsburgh F.B.I. office refused to comply without the approval of David L. Bowdich, the F.B.I.’s deputy director, the former official said.

Mr. Brady’s demands soon prompted a tense confrontation with F.B.I. officials at the bureau’s headquarters in Washington. The meeting was mediated by Seth D. DuCharme, now the acting U.S. attorney in Brooklyn and at the time a trusted aide and ally of Mr. Barr’s at the Justice Department in Washington.

Then, after Barr failed to replace Geoffrey Berman with a hand-picked flunky when he fired him on June 20 of last year, Barr instead installed DuCharme in Brooklyn on July 10, thereby making DuCharme (who had already been personally involved in Pittsburgh) the gatekeeper on any investigations pertaining to Ukraine. And sometime months after that — as Rudy continued to share known Russian disinformation during the election — DuCharme approved not an expansion of the investigation in SDNY that Barr tried to shut down by firing Berman, which would have been the logical thing to do if you were concerned about Russians interfering in our elections, but instead a parallel investigation in EDNY that, per the more recent NYT report, by design would not treat Rudy as a subject. Meanwhile, Rosen created repeated roadblocks — higher and higher levels of approvals for a search of Rudy — in an attempt to prevent SDNY from advancing their investigation into Rudy any further.

There are some involved in this story, like the FBI Agents who got promoted into the jobs formerly held by Andrew McCabe and Bill Priestap and Peter Strzok, who probably let all this happen because they knew the best way to advance their careers was to not make the mistake that their predecessors had made by trying to keep the country safe from Russian interference during an election. Others may rationalize what they did as a means to placate the President, perhaps imagining that it wouldn’t do that much damage to the country — that was the excuse cited by the NYT article on the Pittsburgh investigation. But those people, in recognizing Trump would lash out if they tried to investigate Russian interference in the 2020 election, would have therefore understood that Trump wanted Russian spies to interfere in the election and would be furious if they prevented it. They would have had to have understood that the way to keep Trump happy was to let Russia have its way. They would have been operating on the recognition that all the claims about what Trump did in 2016 were true, at least as far as 2020.

Plus, no one who pushed as hard as Scott Brady did can claim to be trying to placate the President.

Finally, worst of all, there are those who took a vow to “protect and defend against enemies foreign and domestic” who made affirmative attempts to protect not just the disinformation that Rudy was feeding to DOJ and FBI, but also protect Rudy for serving as the willful handmaiden of someone they knew was a Russian spy.

The Russian scandal of 2020 is, in many ways, even more scandalous than the Russian scandal of 2016. At least Paul Manafort and Roger Stone were in a position to claim plausible deniability. Bill Barr and Jeffrey Rosen are not.

Update: This email obtained via American Oversight shows that the decision to use Scott Brady to protect the Russian disinformation intake started earlier, by January 3.

The Rudy Giuliani Warrants Likely Go Up To the Andrii Derkach Meeting

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For a variety of reasons, I’d like to look at the probable scope of the Rudy Giuliani warrants. I believe the warrant obtained on April 21 probably goes up to, but not far beyond, the meeting Rudy had with Andrii Derkach on December 5, 2019.

This post is based in part on what Rudy Giuliani, Victoria Toensing, and Lev Parnas have telegraphed about these warrants. None of these people are reliable, but Rudy and Toensing, at least, are clearly trying to share information with potential co-conspirators and therefore would want to be accurate. And whether or not the redaction fail in Parnas’ letter was intentional, I believe Parnas was trying to maximize the discomfort that these warrants might pose to powerful people (Parnas knows the targets and dates of the warrants, but it’s not clear whether he knows the date ranges). The post also includes claims from the government response to Parnas’ request for access to the Rudy and Toensing content; the government is reliable but still obviously hiding stuff.

Per Parnas, he knows of three warrants targeting Rudy:

  • A November 4, 2019 warrant targeting Rudy’s iCloud and email accounts
  • An April 13, 2021 warrant obtaining historical and prospective cell site information from Rudy (and Toensing)
  • An April 21, 2021 warrant targeting what ended up being 18 devices from Rudy

Here’s what these letters claim about the warrants:

  • The November 4, 2019 warrant “commences when Mayor Giuliani began to represent Donald Trump”
  • The start date of the November 4, 2019 warrant was “the commencement of Giuliani’s representation of former President Donald Trump”
  • Rudy believes the iCloud warrant obtained “communications with, and on behalf of, the sitting President, containing material relating to the impending impeachment”
  • The date range for the April 21, 2021 warrant began “three months later than the iCloud account”
  • The end date for the April 21, 2021 warrant went “56 days” later than the iCloud warrant
  • The warrant required Apple turn over “subscriber and payment information, device information and settings, transactional records, address book information, call history and voicemails, text message content, email content, photos and videos, documents, search and web histories, third-party application data, location date and iOS device backups” (this is boilerplate, but most people don’t understand how comprehensive a cloud warrant, to Apple or Google, can be)
  • The government showed probable cause that the iCloud account included evidence of “22 USC §§612 and 618 [FARA], 18 USC §951 [Foreign Agent], 18 USC §2 [Abetting], and 18 USC §371 [Conspiracy to defraud the US]”
  • Two days after the warrants targeting Rudy and Toensing, SDNY obtained a warrant targeting Yuri Lutsenko; later warrants targeted two other Ukrainians, Roman Nasirov and Alexander Levin
  • The treatment of information pertaining to someone Toensing represents (possibly, but not definitely, Dmitro Firtash) was more limited in her later warrant
  • Parnas believes that some of the information (though he doesn’t specify whether from the November 2019 or the April 2021 search) would include information “that may have been deleted”
  • Parnas believes that the warrants obtained “the communications immediately following the defendants’ arrest” on October 10, 2019
  • The 2019 returns do not contain any evidence relating to Parnas’ campaign finance charges and no non-duplicative statements from Parnas about Fraud Guarantee

Particularly given the way DOJ removed Parnas and Igor Fruman’s influence peddling for Yuri Lutsenko in their September 17, 2020 superseding indictment, it is virtually certain that this investigation involves, at a minimum, the ultimately successful Lutsenko-backed efforts to get Marie Yovanovitch fired in 2019.

This JustSecurity timeline is enormously helpful for reviewing the entanglements between Parnas and Fruman with Lutsenko (as well as the other events that SDNY is likely interested in). Rudy formally became Trump’s lawyer in April 2018, though there were discussions about him (and Toensing and her spouse Joe DiGenova) joining the team in March 2018, after John Dowd quit. Parnas and Fruman made their first pitch to Trump to fire Yovanovitch on April 30, 2018. In May and June, Parnas and Fruman heavily lobbied Pete Sessions to help get Yovanovitch fired. Then in August 2018, Fraud Guarantee hired Rudy. That puts the likely start dates of Rudy’s warrants sometime between March 20 and April 17, 2018 (for the iCloud warrant), and between mid-June and July or August 2018 (for the device warrant).

Depending on how narrowly the investigation is scoped on Yovanovitch, there are three likely end dates for the iCloud warrant: sometime between April 25 and May 6, 2019, when the effort to fire Yovanovitch succeeded, on October 10, when Parnas and Fruman are arrested, or on November 4, or whatever “present” day Apple complied with the warrant (the gag was issued days later so there may have been a delay in obtaining that approval).

I think one of the later dates is far more likely. That’s because Rudy continued to chase the same effort in Ukraine after Yovanovitch was fired. Plus, the most likely explanation for how SDNY was able to get warrants and a non-disclosure order for the November 2019 warrants against Rudy and Toensing is that they had proof, obtained on October 21, 2019, that Parnas had unsuccessfully attempted to delete information from his own iCloud account. And Rudy, who knows the date ranges of the warrant, claims that it obtained information, “containing material relating to the impending impeachment,” which, if true, would entirely rule out a May 6 end date.

Parnas believes the first warrant extended beyond his October 10 arrest. But it’s not entirely clear whether he knows the date range of the warrants. The government response explained they gave him material from him they had been withholding under a non-disclosure order relating to the investigation in which Rudy is a subject (that is, the Lutsenko campaign) on January 28. But in response to Parnas’ request for materials “immediately following” his arrest, the government got coy about whether they exist in the November 2019 returns (the only ones they have reviewed yet).

For similar reasons, the request for communications by Giuliani and Toensing “immediately following the defendants’ arrests” and “subsequent to” Parnas’s provision of information to the House Intelligence Committee are not subject to disclosure. (Def. Letter at 3.) Not only do these communications have nothing to do with the Government’s case-in-chief, but even if Parnas was entitled to discovery relating to his selective prosecution claim—and he plainly is not—these communications would not even be relevant to such a defense because, to the extent they exist, they post-date the defendants’ arrest.

Besides, there’s a more logical reason to expect that the November 2019 warrants ended on the day of Parnas’ arrest, October 10: because that’s consistent with SDNY’s investigation being limited to its original scope and the entirety of the investigation into Andrii Derkach being at EDNY, as NYT reported is the case.

On December 3, 2019, Rudy met in Budapest with Lutsenko. On December 4, he flew to Kyiv to meet with Derkach, the meeting that begins the relationship that EDNY has ownership of.

A 56-day extension on an end date in response to a November 4 warrant would be December 31, a logical end date for a warrant, but one that would encompass the aftermath of the Derkach meeting scoped to EDNY. Whereas a 56-day extension to an October 10 end date would take you to December 5: through the Derkach meeting associated with the Lutsenko one, but not any further.

That would also be inclusive of communications relating to the pending impeachment (which Rudy says would have been included in the iCloud return), but would be more protective of Rudy’s conversations with Trump as impeachment drew nearer.

Lev Parnas Failed to Delete His iCloud Content Just before DOJ Got a Secret Warrant for Rudy Giuliani’s iCloud Content

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The government has known that Lev Parnas attempted to delete some or all of his iCloud content since shortly after October 21, 2019 — 2 weeks before it obtained covert warrants for Rudy Giuliani and Victoria Toensing’s iCloud accounts.

On January 17, 2020 (note the date on the letter has the wrong year) — the same day Jeffrey Rosen issued a memo prohibiting any DOJ personnel from expanding the scope of any investigation involving Ukraine without his and Richard Donoghue’s approval — Parnas asked to modify his protective order so he could share materials seized from his iCloud on that October date with the House Intelligence Committee for their impeachment investigation.

In a memo objecting to that request, the government noted that Parnas was perfectly free to download his own iCloud and share it with HPSCI — and asserted he had already done so.

Additionally, to the extent Parnas seeks to produce his own texts, emails, photographs or other materials, he should have access to the content stored on his iCloud account through other means: he can simply download his own iCloud account and produce it to HPSCI (and in fact, it appears he has already done so)

Parnas needed to ask the government, however, because he had deleted some of the material after the government had already obtained a preservation order for his account, meaning the government had the content but Parnas no longer did.

The materials at issue include records that, as far as the Government knows, were never in Parnas’s possession. For instance, the data produced by Apple includes deleted records (which may only exist because of the Government’s preservation requests), account usage records, and other information to which a subscriber would not necessarily have access.

The government asked for Parnas to identify the previously deleted chats he wanted to share with Congress so his co-defendants could raise privilege concerns.

To the extent that Parnas has deleted materials from his iCloud account, the Government is willing to work with counsel to ensure that Parnas can produce his own materials that are responsive to the Congressional request to HPSCI. To that end, the Government respectfully submits that Parnas’s counsel should identify for the Government any specific chats, emails, photographs, or other content Parnas is unable to access from his iCloud currently, but which exist within the discovery that has been produced to him and in his view are responsive to the Congressional subpoena. Requiring Parnas to specifically identify these materials would also permit his co-defendants to raise any concerns with respect to their privilege or privacy interests prior to the materials’ release.

“Tell us which of these texts you attempted to delete you think are the most incriminating to Rudy,” they effectively invited Parnas to explain back in early 2020, as the filter team would have just started wading through Rudy’s already seized iCloud content.

Parnas’ failed attempt to delete sensitive content that would be pertinent to the impeachment inquiry puts Rudy’s wails of outrage that the government successfully persuaded Judge Paul Oetken that if they didn’t obtain this content covertly, it might get deleted in a very different light.

In addition, in the original warrant for the iCloud account, there is a nondisclosure order based upon an allegation made to the issuing Court, that if Giuliani were informed of the existence of the warrant, he might destroy evidence or intimidate witnesses. Such an allegation, on its face, strains credulity. It is not only false, but extremely damaging to Giuliani’s reputation.

Indeed, DOJ may well have been seeking information that Parnas had successfully deleted elsewhere. Parnas seems to think that’s what happened. In his request to get access to the stuff seized from Rudy’s phone, he states that the newly disclosed materials “likely” include communications involving him “that may have been deleted.”

The seized evidence will also likely contain a number and variety of communications between Giuliani and Toensing and Parnas that are directly discoverable under Fed. R. Crim. P. 16, evidence of any conversations between Giuliani, Toensing, and others, including Parnas, that may have been deleted, communications between Giuliani, Toensing and others about the defendants and how to address their prior relationships, the arrests, and the unfolding investigation, communications between Giuliani and Toensing and others with potential Government witnesses, including communications about the defendants, the offenses charged, and the witnesses’ potential disclosures and characterizations of alleged fraud-loss computations.

Meanwhile, the government made an interesting observation in their original request for a Special Master.

Based on the Government’s investigation to date, given the overlap in date range and because certain materials, including certain emails and text messages, were backed up to the iCloud accounts that were searched pursuant to these prior warrants, the Government expects that some, but not all, of the materials present on the electronic devices seized pursuant to the Warrants could be duplicative of the materials seized and reviewed pursuant to the prior warrants.

After admitting the government expects significant overlap between what they got in 2019 and what they got in April because “certain materials” were backed up to the cloud, the government notes that “not all” of what they expect to be on the devices will be duplicative. Some of the new material will pertain to a slightly different date range on the searches. But another cause would be if Rudy and Toensing deleted stuff that could be obtained from their phone.

The investigative team has gotten deep enough in the iCloud material seized in 2019 to identify files that they know existed but were deleted from the iCloud backup, which might be recoverable from a device.

Rudy, in a “doth protest too much” theme in his letter insists he didn’t delete anything but if he did he wasn’t under subpoena anyway.

Despite these two warnings that the SDNY was seeking permission to apply for a search warrant for his electronic devices and because he had no guilty conscience, Giuliani took no steps to destroy evidence or wipe the electronic devices clean. Since Giuliani was not under subpoena, he had no legal obligation to preserve that evidence, but he did so because he is an innocent man who did nothing wrong.

[snip]

Again, all of this took place without Mayor Giuliani or his counsel having any idea that a year and a half prior, the Giuliani iCloud was the subject of a warrant. Giuliani and his counsel were both aware, because of the prominent leaks to the media, of the failed attempts in November of 2020 and again in January of 2021, to gain the required Justice Department permission to search a lawyer’s office and residence. If Giuliani was inclined, there was ample notice and time to destroy evidence.

Aside from mentioning the basis for the covert warrants, Toensing didn’t address whether any data got destroyed.

Whatever exigent circumstances the Government asserted to instead justify covert and overt search warrants in this instance were satisfied when the information was secured and preserved. The information should now be returned to Ms. Toensing and her counsel for a privilege and responsiveness review under the supervision of a Special Master. Moreover, the Government should disclose what seized information it has already reviewed and whether and what information it has provided to the case team.

She just wants everything back so she can restart the process, along with some kind of indication of what the government has already seen.

Rudy, similarly, wants to know what the government knows.

Lastly, Giuliani is entitled to the production of Apple’s entire search warrant return production, as well as the material previously deemed non-privileged and responsive and relevant to the 2019 Search Warrant by the “filter” team.

But Judge Paul Oetken, who found cause for the non-disclosure order back in 2019, was thoroughly unimpressed with all these claims about whether things might have been deleted. As he noted, the search is done.

Moreover, the review of the 2019 warrant returns is now largely complete. And any pre-indictment suppression motion would be premature at this juncture.

Rudy and Toensing can complain if they get charged.

Jeffrey Rosen Separated the Investigation that Could Turn Rudy Into a Russian Agent from the Rudy Investigation

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When Scott Stedman first reported that the FBI investigation into matters relating to Rudy Giuliani had expanded to include sanctioned Russian agent Andreii Derkach, he suggested it was tied to the SDNY seizure, just days earlier, of Rudy’s phones.

The Federal Bureau of Investigation (FBI) probe of Donald Trump’s personal lawyer Rudolph Giuliani has expanded to include Russia’s spy activities in the 2020 U.S. election, multiple sources tell Forensic News.

The criminal investigation, which led to a dramatic raid of Giuliani’s home and office this week, has for months included the activities of those who worked for or with Russian intelligence agent Andriy Derkach.

Derkach is a Ukrainian Member of Parliament who has been an “active Russian agent for over a decade,” according to the U.S. government.

Kenneth McCallion, an attorney who has represented multiple Ukrainian clients, said that prosecutors have been looking into the actions of Derkach in the 2020 election cycle as part of the Giuliani probe.

“I have been briefed that prosecutors are scrutinizing Derkach as part of the Giuliani probe,” McCallion told Forensic News. The inclusion of Derkach in the FBI’s probe suggests that the potential charges facing Giuliani might extend beyond just Foreign Agent Registration Act violations.

But the NYT last night reported (without crediting Stedman for the earlier report) that, instead, the Derkach part of the investigation is in EDNY, not SDNY, and in that investigation, Rudy is not a subject.

Federal prosecutors in Brooklyn have been investigating whether several Ukrainian officials helped orchestrate a wide-ranging plan to meddle in the 2020 presidential campaign, including using Rudolph W. Giuliani to spread their misleading claims about President Biden and tilt the election in Donald J. Trump’s favor, according to people with knowledge of the matter.

[snip]

The investigation is unfolding separately from a long-running federal inquiry in Manhattan that is aimed at Mr. Giuliani. While the two investigations have a similar cast of characters and overlap in some ways, Mr. Giuliani is not a subject of the Brooklyn investigation, the people said.

Instead, the Brooklyn prosecutors, along with the F.B.I., are focused on current and former Ukrainian officials suspected of trying to influence the election by spreading unsubstantiated claims of corruption about Mr. Biden through a number of channels, including Mr. Giuliani, Mr. Trump’s personal lawyer at the time. It is unclear whether the Brooklyn prosecutors will ultimately charge any of the Ukrainians.

At one point in the investigation, the authorities examined a trip Mr. Giuliani took to Europe in December 2019, when he met with several Ukrainians, according to the people, who spoke on the condition of anonymity to discuss an ongoing inquiry.

At least one of the current and former officials Mr. Giuliani met, a Ukrainian member of parliament named Andriy Derkach, is now a focus of the Brooklyn investigation, the people said. [my emphasis]

In a remarkably stupid comment, the NYT suggests that two investigations started under Trump pose a political problem for Merrick Garland (misstating, at the same time, what Garland promised).

Together, the Manhattan and Brooklyn investigations present a challenge for the Biden Justice Department, which has pledged to remain above the political fray even as it inherited a number of sensitive investigations linked to Ukraine and Russia.

The comment is especially stupid given the public record that suggests the most likely explanation for the two separate investigations is that Jeffrey Rosen took steps after Rudy became the focus of investigative attention in SDNY, to ensure that EDNY could stave off the most dangerous parts of the investigation.

I have pointed out repeatedly that had the Zelenskyy call whistleblower tip been treated like all other national security related tips in the post-9/11 world, investigators would have discovered that it pertained to an already open investigation in SDNY into Lev Parnas and Igor Fruman, an investigation that both Billy Barr and Jeffrey Rosen knew about. It appears that didn’t happen at first because the complaint was viewed exclusively as the transcript of President Trump’s call, and not the backup that tied the call to the influence peddling involving Rudy, Parnas, and Fruman that had been going on for some time.

But, probably with the public release of the whistleblower complaint, SDNY began to investigate how Rudy picked up the effort that Parnas and Fruman had already started in 2018, to get Marie Yovanovitch fired.

On November 4, 2019, SDNY executed searches — searches that Main Justice would have had to be informed about — on Rudy and Victoria Toensing’s cloud accounts. In subsequent months, SDNY would execute searches on Yuri Lutsenko and several other Ukrainians, but not Andrii Derkach, not even after Rudy flew to Ukraine to meet with Derkach personally on December 5, 2019.

In the wake of those searches, on January 17, 2020, Jeffrey Rosen issued a memo putting his trusted deputy, Richard Donoghue, in charge of all Ukraine-related investigations.

As has been publicly reported, there currently are several distinct open investigations being handled by different U.S. Attorney’s Offices and/or Department components that in some way potentially relate to Ukraine. In addition, new information potentially relating to Ukraine may be brought to the attention of the Department going forward. The Department has assigned Richard Donoghue, the U.S. Attorney in the Eastern District of New York (EDNY), who currently is handling certain Ukraine-related matters, to coordinate existing matters and to assess, investigate, and address any other matters relating to Ukraine, including the opening of any new investigations or the expansion of existing ones.

[snip]

Any and all new matters relating to Ukraine shall be directed exclusively to EDNY for investigation and appropriate handling.

[snip]

Any widening or expansion of existing matters shall require prior consultation with and approval by my office and EDNY.

Now that we know about the Rudy search in November 2019, the effect of this memo is clear: it limited the SDNY investigation to the scope of the investigation as it existed at that time, into the Lutsenko attempt to fire Yovanovitch (which was included in the original Parnas indictment), but not Rudy’s meeting with a Russian agent to help Trump win re-election.

Instead, EDNY presided over all the Ukraine goings-on during the election, during which time they could have done something about ongoing tampering. Indeed, after Geoffrey Berman succeeded in ensuring that Audrey Strauss would replace him after Barr fired him to try to shut down ongoing investigations (including, undoubtedly, the one into Rudy and Barr’s friend Victoria Toensing), Barr and Rosen replaced Donoghue with another trusted flunky, Seth DuCharme. Under DuCharme, then, EDNY sat and watched while Derkach interfered in the election and did nothing until — per yesterday’s NYT story — “the final months of the Trump administration.” According to the public timeline, it appears that they just let a known Russian agent play around in our democracy.

There is plenty of risk for Rudy in the existing SDNY investigation. But what Rudy did in response to Lutsenko’s entreaties amounts to lobbying, and so is probably most likely be charged as a FARA case (though Foreign Agent charges are on the table).

With Derkach, however, Rudy was affirmatively attempting to launder Russian-backed disinformation to affect the election. There’s no way that can be charged as lobbying. Plus, the government understood Derkach to be a Russian agent when Rudy attended that meeting (though Rudy claims he was not warned in advance). If Derkach were part of the SDNY investigation, in which Rudy is a subject, then treating Rudy as the Russian agent he has served as in recent years would be on the table.

But in EDNY, per the NYT report, Rudy’s conduct is not at issue.

Lev Parnas’ Gamble: The Three Nested Investigations

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As I noted the other day, Lev Parnas has inserted himself, along with his co-defendants, in the middle of the presumed Special Master review of Rudy Giuliani and Victoria Toensing’s seized devices. He’s doing so as part of a strategy he has pursued since shortly after he was arrested to either make his prosecution unsustainable for Donald Trump (that strategy has presumably failed) or to bring a whole lot of powerful people — possibly up to and including Trump — down with him. The Special Master review will be critical to this strategy, because it will determine whether material that might otherwise be deemed privileged can be reviewed by the Southern District of New York as evidence of a cover-up of crimes that Donald Trump committed.

In this post, I will lay out how there are two — and if Lev is successful, three — sets of crimes in question, each leading to the next.

1a, Conspiracy to donate money: 18 USC 371, 52 USC 30122, 18 USC 1001, 18 USC 1519 and 2, and 18 USC 371, 52 USC 30121.

The first set of crimes pertain to efforts by Parnas, Igor Fruman, and two co-defendants, to gain access to the Republican Party with donations prohibited by campaign finance law. They were first charged — as Parnas and Fruman were about to fly to Vienna to meet with Victor Shokin — on October 9, 2019. The charges relate to allegations that they used their company, Global Energy Partners, to launder money, including money provided by a foreigner, to donate to Trump-associated and other Republican candidates.

These charges almost certainly arose out of a complaint and then a follow-up by Campaign Legal Center.

The overall motive of these crimes, as described, was basically grift: to improve their connections to facilitate a fairly dodgy business proposition. One prong of the business, explicitly funded by a Russian businessman, involved funding recreational marijuana efforts.

But along the way, one of their alleged acts was to give Pete Sessions $20,000 in a way that associated that donation with an effort to get rid of Marie Yovanovitch, possibly on behalf of Yuri Lutsenko.

[T]hese contributions were made for the purpose of gaining influence with politicians so as to advance their own personal financial interests and the political interests of Ukrainian government officials, including at least one Ukranian government official with whom they were working. For example, in or about May and June 2018, PARNAS and FRUMAN committed to raise $20,000 or more for a then-sitting U.S. Congressman [Sessions],

[snip]

At and around the same time PARNAS and FREEMAN committed to raising those funds for [Sessions], PARNAS met with [Sessions] and sought [his] assistance in causing the U.S. Government to remove or recall the then-U.S. Ambassador to Ukraine.

1b, Conspiracy to donate money: 18 USC 371, 52 USC 30122, 18 USC 1001, 18 USC 1519 and 2, and 18 USC 371, 52 USC 30121, 18 USC 1349.

The campaign finance indictment was superseded on September 17, 2020 to add a fraud charge associated with Parnas and David Correia’s Fraud Guarantee, which literally was a fraud claiming to insure people against losses from fraud. They got a bunch of investors to invest in the business based on false representations, which Parnas (and to a lesser degree, David Correia) allegedly spent on his personal expenses. The superseding indictment took out the charge related to Yovanovitch.

Shortly after this superseding indictment, Correia flipped, entering into a plea agreement.

2, Foreign influence peddling: 22 USC §§612 and 618, 18 USC §951, 18 USC §2, and 18 USC §371

As you can see already, the first indictment against Parnas and Fruman pertained to an effort — to get Yovanovitch fired — that they were undertaking with Rudy Giuliani. And the superseding indictment adds fraud associated with the Fraud Guarantee they used Rudy’s name to help sell. So Rudy was bound to get dragged into this.

According to a letter submitted by Rudy Giuliani’s lawyer, he is being investigated for a bunch of influence-peddling crimes: FARA, acting as an unregistered Foreign Agent, abetting, and conspiracy.

This investigation may have come out of the way that the whistleblower complaint that launched Trump’s first impeachment magnified an OCCRP profile of Parnas and Fruman’s influence-peddling (which incorporated the profile), and the way that impeachment magnified the influence-peddling that Rudy and the grifters were involved with. The letter that failed to redact the targets of the warrants associated with Rudy listed two of the key players in the OCCRP profile, Yuri Lutsenko and Alexander Levin (Roman Nasirov is the one other person, in addition to Rudy and Victoria Toensing, who was targeted).

Indeed, even as impeachment was rolling out, during the period where Parnas was discussing cooperating with SDNY, he was refusing to admit that some foreigner — likely Lutsenko — was behind all this.

And it seems pretty clear that Parnas and Fruman are subjects of this investigation, too. The government’s response to Parnas’ request for discovery describes that he was notified of search warrants targeting him in January of this year (shortly after Joe Biden’s inauguration).

3. Parnas’ hoped for obstruction investigation

From the start, Parnas has been alleging — credibly — that at least the timing of his arrest was an effort to protect the President and maybe even to shut him up. From early on, he used impeachment as a way to share materials obtained in discovery showing Rudy’s central role in it all. In January 2020, Parnas filed a letter he sent to Billy Barr requesting his recusal, based in part off a claim that DOJ delayed production of discovery past the time he could share it with the impeachment inquiry (in reality, the delay was partly due to the time it took to crack the password to Parnas’ phone). In December, Parnas filed a motion to dismiss his indictment, alleging selective prosecution. He focused closely on the events leading up to impeachment (and falsely suggested these events started in 2019, not 2018). Amid a list of all the times Barr corruptly intervened to protect the President, Parnas described how, just as HPSCI was asking for his testimony, he and Fruman were arrested.

Later that day, Dowd wrote to HPSCI, 6 as he had indicated he would in his e-mail: Kindly refer to my letter of October 3, 2019. This is an update. We continue to meet with Mr. Parnas and Mr. Fruman to gather the facts and documents related to the many subjects and persons detailed in your September 30 letter and to evaluate all of that information in light of the privileges we raised in our last letter. This effort will take some additional time. Accordingly, Messrs. Parnas and Fruman will not be available for depositions scheduled for October 10, 2019. The following day, October 9, 2019, Mr. Parnas met with Mr. Giuliani at the BLT Steakhouse in the Trump Hotel, Washington DC. Mr. Parnas was scheduled to travel later that evening to Frankfurt, Germany, and then on to Vienna, Austria, to meet with the former Prosecutor General of Ukraine, Victor Shokin, to prepare him for an appearance on FOX News’ Shawn Hannity Show to discuss Joe Biden. Although Mr. Giuliani, along with Victoria Toensing and Joseph DiGenova, had originally been scheduled to travel to Vienna with Parnas, Toensing and DiGenova had cancelled several days earlier, and Mr. Giuliani cancelled that day.

After finishing meeting with Mr. Giuliani, Mr. Parnas and Mr. Fruman took a car to Dulles International Airport, where they waited in the Lufthansa lounge for approximately two hours before beginning to board their flight. Unbeknownst to Messrs. Parnas and Fruman, they had been indicted in the SDNY earlier that day.

Parnas also described others involved in his illegal campaign finance activities who were not indicted, including America First Action PAC and Kevin McCarthy.

Among the things Parnas asked for was evidence that was already being collected in the second, influence-peddling investigation.

All internal documents, including memoranda, notes, e-mails, and text messages that, in any way, reference the reasons why individuals and entities including but not limited to, America First Super PAC, [redacted], Rudy Giuliani, President Donald J. Trump, Victoria Toensing, Joseph DiGenova, and John Solomon, were not arrested or charged with Mssrs. Parnas and Igor Fruman;

The government dismissed Parnas’ claim as lacking evidence but also said that some of the materials he was asking for would be covered by various privileges.

Because Parnas’s claim is meritless, the Court need not consider the contours of his discovery request (Parnas Mot. 32-33), but multiple of his requests seek materials that, if they exist, appear to be attorney work product, covered by the deliberative process privilege, and/or are outside of the scope of what would be reasonably necessary to try to advance his asserted claims rather than to gain a strategic advantage at trial.

Judge Oetken has not yet ruled on Parnas’ selective prosecution claim (or a bunch of other pre-trial motions from all defendants).

But as I noted, just the other day, Gordon Sondland provided more evidence of a corrupt cover-up pertaining to impeachment.

In his redaction fail letter, Parnas addressed very specific things he believed to exist to show a cover-up just before the influence peddling warrants got sent out, including emails he deleted.

The seized evidence will also likely contain a number and variety of communications between Giuliani and Toensing and Parnas that are directly discoverable under Fed. R. Crim. P. 16, evidence of any conversations between Giuliani, Toensing, and others, including Parnas, that may have been deleted, communications between Giuliani, Toensing and others about the defendants and how to address their prior relationships, the arrests, and the unfolding investigation, communications between Giuliani and Toensing and others with potential Government witnesses, including communications about the defendants, the offenses charged, and the witnesses’ potential disclosures and characterizations of alleged fraud-loss computations.

If Rudy and Toensing didn’t delete these materials, then they are now in US government custody. And Parnas is doing all he can to make sure the government looks at them.

“Purge:” Gordon Sondland Probably Just Won Himself Another Subpoena

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Since we’re talking about people avenging themselves for being targeted by Trump’s corruption, I wanted to look the lawsuit Gordon Sondland filed the other day against the State Department and/or Mike Pompeo in his private capacity. Sondland says that Pompeo promised to reimburse what has amounted to $1.8 million in legal fees for testifying in Trump’s first impeachment, but that Pompeo reneged on that promise. So the suit is explicitly about getting reimbursed.

Maybe the lawsuit will work, as he ostensibly intends, or maybe the government will declare immunity.

But there are several details of his suit that will — and probably were designed (especially in the wake of the news that Rudy Giuliani had his devices seized) to win Sondland an invitation to testify in SDNY, which may have the effect of expanding their existing investigation into Rudy into the cover-up.

First, Sondland says that Pompeo promised to reimburse his legal fees twice. And while Sondland describes others besides Pompeo at State who knew about it, the promise itself was made orally.

On October 16, 2019, Pompeo again reaffirmed that the Indemnity Undertaking was made with his knowledge and approval. Ambassador Sondland spoke with Pompeo via conference call from the Washington, D.C. office of his Private Counsel, who were also in attendance and listening on speakerphone. Pompeo promised without any qualification that the State Department would reimburse Ambassador Sondland the fees and costs of Private Counsel in full. Ambassador Sondland and his Private Counsel understood Pompeo to be stating that he had the authority to bind the Government to such an agreement. Ambassador Sondland relied on Pompeo’s promise and reasonably believed that he had the authority to bind the Government to such an agreement. The Under Secretary for Management and the Counselor to the Secretary of State also confirmed that Ambassador Sondland would be reimbursed in full.

I find it remarkable Pompeo would commit State without putting something in writing, and find it just as remarkable that a successful businessman like Sondland wouldn’t insist on having it in writing. Unless there was an understanding they would not put it in writing.

Sondland describes being “purged” after he testified truthfully, something that will help him make the case the decision not to reimburse him was political retaliation.

During the meeting with the Counselor to the Department of State, Ambassador Sondland stated that he had no intention of leaving his position in the near future. Instead, Ambassador Sondland mentioned that he might consider stepping down in the summer of 2020 to return to lead his businesses, and he wanted to give his colleagues notice to permit a proper transition. In response, he was advised that while the Administration appreciated his testimony, the Administration wanted to purge everyone remotely connected to the Impeachment trial. Accordingly, the Counselor to the Department of State asked for Ambassador Sondland’s resignation. In response, Ambassador Sondland said he would consider that proposal, but asked about his attorneys’ fees. The Counselor to the Department of State told Ambassador Sondland to speak with the Under Secretary for Management, who would take care of his attorneys’ fees. Later that day, Ambassador Sondland confirmed he would not resign because he did not do anything improper. After that, everything changed. Ambassador Sondland did not receive his attorneys’ fees, notwithstanding the promises from the State Department that the attorneys’ fees would be paid.

Sondland describes that he didn’t have access to any of the underlying materials to help prepare, which will at the very least help him explain his first, less-truthful testimony.

As Ambassador Sondland prepared for a second round of testimony, the Department of State continued to restrict Ambassador Sondland’s access to materials essential to his preparation

But it will also support a inference that he was asked to participate in a cover-up of what really happened.

Then there are details that Sondland didn’t necessarily need to include, such as when and how he learned about the whistleblower complaint and how he met with Kurt Volker and Pompeo to discuss the complaint.

22. On September 25, 2019, Ambassador Sondland and Pompeo attended the eighteenth annual Transatlantic Dinner. Ambassador Sondland was the only U.S. ambassador in attendance, which hosted the NATO Secretary General, the EU High Representative for Foreign and Security Policy, and foreign ministers from Europe and Canada. During the dinner, Ambassador Sondland received an urgent phone call from The White House alerting him that his name appeared in a whistleblower complaint received by the Office of the White House Counsel.

23. The following day, September 26, 2019, Ambassador Sondland and Pompeo met to discuss the whistleblower complaint with Ambassador Kurt Volker, United States Special Representative for Ukraine.

When Rudy complained about having his phone seized, he said that he was just cooperating in State Department investigations. Now, a former State Department participant has let it be known that State really didn’t want the full story of what happened to come out.

I’d say SDNY will find it hard to pass up that testimony.

Lev Parnas Wants in on the Rudy Giuliani Warrant Bonanza

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Lev Parnas just submitted a filing in his case — joined by the remaining defendants — asking for a discovery hearing where SDNY will tell them when they will get the evidence seized from Rudy Giuliani and Victoria Toensing that is helpful to their defense. It describes how, after inquiring how the searches on Rudy and Toensing affect them, on May 14, the government explained that Judge Paul Oetken has given the government multiple gags, covering the time through June 30, to delay disclosure.

And it sounds like the government seized material from more than just Rudy and Toensing. At least two sentences of this description of the searches likely doesn’t pertain to them.

Parnas explains that he expects those searches will include materials useful to his defense from:

  • Rudy
  • Toensing
  • “the former President”
  • Billy Barr
  • “high-level members of the Justice Department”
  • Jay Sekulow
  • Jane Raskin
  • Senator Lindsey Graham
  • Congressman Devin Nunes

He expects those materials will reveal “the timing of the arrest and indictment of the defendants as a means to prevent potential disclosures to Congress in the first impeachment inquiry of then-President” Trump. He says he’ll have exceptions to any “potentially applicable privilege.”

He also expects that there may be information that got deleted (the implication is, by him) about “how to address their prior relationships, and the unfolding investigation.”

Update: As a number of people have noted, that big redaction is one of the fake redactions that defense attorneys sometimes disclose sensitive information under. Copy and pasting shows that the following other people were also targeted.

In a chart, the Government identified that it had sought and seized a variety of undisclosed materials from multiple individuals, including: the iCloud and e-mail accounts of Rudolph Giuliani (11/04/19); the iCloud account of Victoria Toensing (11/04/19); an email account believed to belong to former Prosecutor General of Ukraine, Yuriy Lutsenko (11/6/19); an e-mail account believed to belong to the former head of the Ukrainian Fiscal Service, Roman Nasirov (12/10/19); the e-mail account of Victoria Toensing (12/13/19); the iPhone and iPad of pro-Trump Ukrainian businessman Alexander Levin (02/28/2020 and 3/02/2020); an iCloud account believed to belong to Roman Nasirov (03/03/2020); historical and prospective cell site information related to Rudolph Giuliani and Victoria Toensing (04/13/2021); electronic devices of Rudolph Giuliani and Giuliani Partners LLC (04/21/2021); and the iPhone of Victoria Toensing.

Several of these people were named in a July 2019 OCCRP story on Parnas and Fruman that the whistleblower included in his complaint against Trump. Which is to say, this is the investigation we would have gotten had DOJ not worked so hard to protect Rudy and, through him, Trump, back in 2019.

Vicky and Rudy: The Subjects of Delay

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When I asked around last year what the net effect of Billy Barr and Jeffrey Rosen’s efforts to protect Rudy Giuliani would be, I learned that the net effect of refusing to approve searches on Rudy would only delay, but it would not change the outcome of, the investigation into the President’s lawyer.

That’s worth keeping in mind as you read SDNY’s response to Victoria Toensing and Rudy’s demand that they get to treat both the April warrants against them, as well as the 2019 warrants, like subpoenas. Effectively, SDNY seems to be saying, “let’s just get to the indictment and discovery phase, and then you can start challenging these searches.”

The filing several times speaks of charges hypothetically.

If Giuliani is charged with a crime, he will, like any other criminal defendant, be entitled to production of the search warrant affidavits in discovery, at which time he will be free to litigate any motions related to the warrants as governed by Federal Rule of Criminal Procedure 12. Conversely, if the Government’s grand jury investigation concludes without criminal charges, then the sealing calculus may be different, and Giuliani may renew his motion.

[snip]

If there is a criminal proceeding, the Government will produce the affidavits, warrants, and materials seized pursuant to those warrants, and at that time, the warrants’ legality can be litigated.

[snip]

Finally, Toensing will have both a forum and an opportunity to litigate any privilege issues if there is a criminal proceeding. As the Second Circuit has noted, in affirming the denial of a return-of-property motion, “If [the grand jury’s] inquiry results in indictment, the lawfulness of the seizure will be fully considered upon a motion to suppress, and any ruling adverse to the defendant will be reviewable upon appeal from a final judgment; if the grand jury declines to indict the movant, or adjourns without indicting it, its property will most likely be returned, and if not, it can initiate an independent proceeding for its return.” [my emphasis]

But the filing repeatedly makes clear that not just Rudy, but also Toensing (whose lawyer made much of being informed that Toensing was not a target of the investigation), are subjects of this investigation.

But the Government specifically chose not to proceed by subpoena in this case, for good reason, and there is no precedent for permitting the subjects of an investigation to override the Government’s choice in this regard.

None of the cases cited by Giuliani or Toensing supports their proposed approach. Toensing principally relies on United States v. Stewart, No. 02 Cr. 395 (JGK), 2002 WL 1300059, at *4-8 (S.D.N.Y. June 11, 2002), 4 but that case is readily distinguishable because it involved the seizure of documents from several criminal defense attorneys who were not subjects of the Government’s investigation and had many cases before the same prosecuting office

[snip]

Such concerns merely serve to highlight the many countervailing problems with Giuliani and Toensing’s proposal: under their approach, the subjects of a criminal investigation would have the authority to make unilateral determinations not only of what is privileged, but also of what is responsive to a warrant.

[snip]

Nevertheless, Giuliani argues that, quite unlike other subjects of criminal investigations, he is entitled to review the affidavits supporting the warrants, which would effectively give him the extraordinary benefit of knowing the Government’s evidence before even being charged with a crime.

[snip]

Her request is contrary to law and would effectively deprive the Government of its right to evidence in the midst of a grand jury investigation so that she, the subject of that investigation, may decide what is privileged and what is responsive in those materials.

[snip]

In other words, accepting Giuliani and Toensing’s argument about the impropriety of using a filter team to review covert search warrant returns would entitle subjects of a criminal investigation to notice of that investigation any time a warrant were executed that related to them, no matter if the investigation were otherwise covert and no matter if the approving Court had signed a non-disclosure order consistent with the law. [my emphasis]

SDNY correctly treats Rudy and Toensing’s demands to review this material before SDNY can obtain it as a delay tactic.

Giuliani and Toensing’s proposal to allow their own counsel to conduct the initial review of materials seized pursuant to lawfully executed search warrants, including making determinations of what materials are responsive to the warrants, on their own timeline is without any precedent or legal basis. The Government is aware of no precedent for such a practice, which has the effect of converting judicially authorized search warrants into subpoenas.

Indeed, their discussion of the Lynn Stewart precedent emphasizes their goal of obtaining this material expeditiously.

None of the cases cited by Giuliani or Toensing supports their proposed approach. Toensing principally relies on United States v. Stewart, No. 02 Cr. 395 (JGK), 2002 WL 1300059, at *4-8 (S.D.N.Y. June 11, 2002), 4 but that case is readily distinguishable because it involved the seizure of documents from several criminal defense attorneys who were not subjects of the Government’s investigation and had many cases before the same prosecuting office. (See infra at pp. 33-34). In any event, the Court appointed a special master in Stewart, as the Government seeks here. And the procedures adopted in Stewart illustrate why the Government’s proposed approach is preferable. In Stewart, the presiding judge initially believed that the special master’s review could be conducted expeditiously because the defendant’s counsel could quickly produce a privilege log (as Toensing seeks to do here). Id. at *8. But 15 months later, the judge lamented that the special master still had not produced a report on the seized materials. United States v. Sattar, No. 02 Cr. 395 (JGK), 2003 WL 22137012, at *22 (S.D.N.Y. Sept. 15, 2003), aff’d sub nom. United States v. Stewart, 590 F.3d 93 (2d Cir. 2009). That cumbersome process stands in stark contrast to that adopted by Judge Wood in Cohen, wherein the special master completed her review on an expedited basis in parallel to Cohen’s counsel, and set deadlines for Cohen’s counsel to object to any of her designations. (Cohen, Dkt. 39 at 1-2). In Cohen, the special master was appointed in April 2018, and her review was complete by August 2018. The Cohen search involved approximately the same number of electronic devices seized here, but also included significant quantities of hard copy documents, which are not at issue here. In sum, the Court should follow the model set forth in Cohen, which resulted in an efficient and effective privilege review. [my emphasis]

Likewise, the government also offered to pay the costs of the Special Master, so long as the Special Master follows the expeditious procedure conducted with Michael Cohen’s content.

This Court should not permit Giuliani and Toensing to stall the investigation of their conduct in this manner, particularly where the Government’s proposal will allow them to conduct the same review in parallel with a special master. The Government’s proposal to appoint a special master to review the seized materials is the only proposal that is fair to all parties, respects the unique privilege issues that the 2021 Warrants may implicate, and will ensure that Government’s investigation proceeds without undue delay.6

6 In the Cohen matter before Judge Wood, the Government and Cohen split the costs associated with the special master’s privilege review. Here, because the Government made the initial request of the Court and considers the appointment of a special master appropriate in this matter, the Government is willing to bear the costs of the review insofar as the special master follows the procedures adopted by Judge Wood in the Cohen matter, namely to review the seized materials for potential privilege in parallel with counsel for Giuliani and Toensing. To the extent the Court adopts the proposals advanced by Giuliani and Toensing, including that the special master also conduct a responsiveness review of those same materials—which the Government strongly opposes for the reasons set forth above—Giuliani and Toensing should solely bear any costs associated with a responsiveness review, any review beyond the initial privilege review, or any cost-enhancing measures traceable to Giuliani and Toensing. [my emphasis]

I’m mindful, as I review the schedule laid out above, that Cohen was charged almost immediately after the Special Master review was completed, in August 2018. In addressing the partial overlap between the 2019 searches and the April ones, the government notes that, “the Government expects that some, but not all, of the materials present on the electronic devices seized pursuant to the Warrants could be duplicative of the materials seized and reviewed pursuant to the prior warrants.”

The government already knows what they’re getting with these warrants (and if they don’t get it, they’re likely to be able to charge obstruction because it has been deleted). They’re calling for a Special Master not because it provides any more fairness than their prior filter review (indeed, they speak repeatedly of the “perception of fairness”), especially since investigators are about to obtain the materials from the 2019 search, but because it ensures they can get this material in timely fashion, especially since, as it stands now, they’re going to have to crack the passwords on seven of the devices seized from Rudy.

The remaining seven devices belonging to Giuliani and his business cannot be fully accessed without a passcode, and as such the Government has advised Giuliani’s counsel that the devices can be returned expeditiously if Giuliani were to provide the passcode; otherwise, the Government does not have a timeline for when those devices may be returned because the FBI will be attempting to access those devices without a passcode, which may take time.

Yes, Rudy and Toensing are trying to get an advance look at how bad the case against them is. But they’re also hoping to delay, possibly long enough to allow a Republican to take over again and pardon away their criminal exposure.

Which suggests that all the hypotheticals about Rudy and Toensing being able to challenge these searches if they are indicted are not all that hypothetical. SDNY is just trying to get to the place where they can indict.