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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.

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.

Victoria Toensing’s Singular Multiple Devices

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The government has docketed a less redacted version of the letter it originally posted asking for a Special Master to troll through Rudy Giuliani and Victoria Toensing’s devices to separate out the privileged material. As I predicted, the redacted parts of the letter describe the filter team search conducted on the material seized in November and December 2019.

That makes the argument this argument all the more cynical.

[T]he overt and public nature of these warrants necessitates, as Judge Wood observed, the appointment of a special master for the “perception of fairness, not fairness itself.”

Particularly given the admission that the government already obtained, “certain emails and text messages,” that they expect to find on the seized devices.

Which makes the other details more interesting. The FBI obtained 18 devices from Rudy in their search (though remember that thumb drives may count as a device for the purposes of a search).

But with Toensing, the government showed up with a warrant, “to search premises belonging to Victoria Toensing and seize certain electronic devices” — devices, plural. But the FBI came back with just one device.

So why did the government think they’d come back with multiple devices and where did those devices go?

Rudy’s Lawyers Destroy His Reputation in an Attempt to Save It

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Just before a long tirade about how, if DOJ had just asked Rudy Giuliani for help proving he’s not a secret Agent of Russian-backed Ukrainians while he was busy at State and WDPA acting as a secret Agent of Russian-backed Ukrainians, he could have avoided a covert search to find out whether he’s a secret Agent of Russian-backed Ukrainians, his lawyers say, in a now-public letter, that it’ll badly damage Rudy’s reputation if it becomes public that DOJ believed he might delete evidence or intimidate witnesses.

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. It is not supported by any credible facts and is contradicted by Giuliani’s efforts to provide information to the Government. We should be allowed to question the Government as to what basis it had, if any, to make that assertion. Accordingly, we request the information that was presented in the iCloud warrant to justify the NonNotification Order pursuant to 18 U.S.C. Section 2705 (b) that “there is reason to believe that notification of the existence of this warrant will result in destruction of or tampering with evidence, and/or tamping (sic) with potential witnesses, or otherwise will seriously jeopardize an ongoing investigation.” We also request access to the application for any extension of the non-disclosure provision which originally lasted for a year.

As the single exhibit to prove that Rudy had reached out to DOJ to provide help, his attorneys included a picture of a TV screen with his attorney making that claim (I’m not sure whether this claim is November 25, 2019, or in the wake of the most recent searches) when it might have avoided the search. But then they include all this verbiage which sure seems to describe Rudy acting as an Agent of Russian-backed Ukrainians who just didn’t give a shit about registering as such because why do that if the President can bail you out?

It was premature and unwarranted for the Government to seize Giuliani’s ESI because Giuliani had already cooperated with the U S 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. In fact, there has never been an occasion where Mr. Giuliani has refused to cooperate with, or give assistance, to his government. This was as true during the Clinton administration as it was during the Bush administration.

[snip]

As a reminder, this same attorney had cooperated with the State Department and offered, for a year and a half, to answer any questions from the SDNY about any subject or crime, with no limitations except for privileged matters. During that same time period, Giuliani did in fact cooperate with Main Justice, through their designee in Pittsburgh on the subject of the Ukraine. 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.

Plus, Rudy’s lawyers note — as if it helps him — that they only reached out to offer to help on November 4, 2019, the very same day the warrant was obtained (as if maybe a birdie warned him?), which means he didn’t offer to help for the entire month after the indictment against his business partners Lev Parnas and Igor Fruman was unsealed.

But Rudy’s letter and a similar one from Victoria Toensing’s lawyers lay out certain details of the investigations into the two of them.

There are two sets of warrants. With Rudy, SDNY obtained a sealed warrant for his iCloud account on November 4, 2019 and then the overt one for a shit-ton of devices on April 21, 2021. With Toensing, SDNY obtained a sealed warrant for her iCloud account on November 4, 2019 and another for her Google account on December 13, 2019; they obtained a warrant for a single phone on April 28, 2021.

Rudy says that the earlier warrants showed listed FARA, unregistered Foreign Agent, abetting, and conspiracy as the crimes under investigation.

In essence, the Government was looking for evidence that Giuliani was acting as an agent, unregistered agent or lobbyist of a Ukrainian national, government official, corporation or political party or in violation of the foreign agent registration and lobbying laws or making contributions on behalf of a foreign principal (see attachments to search warrant also citing 22 USC §§612 and 618, 18 USC §951, 18 USC §2, and 18 USC §371).

It’s not entirely clear whether the later warrants against Rudy are the same. He doesn’t say. Plus, he says the later search was only “nearly identical,” as compared to Toensing’s claim that the searches were “virtually” identical. (The content, of course, wouldn’t be identical.)

For her part, Toensing is quite worried that DOJ seized information about a client, who sure seems like Dmitro Firtash.

Rudy’s letter mentions “President President President President” over and over. But in this challenge, unlike the one Michael Cohen made, the President has not filed as an interested party, meaning Rudy’s on his own. Probably, he’s too cheap to pay his share of the presumed Special Master fees.

Rudy also argues, falsely, that the search of the President’s lawyer’s cloud content without the use of a Special Master is unprecedented and especially egregious given that this search came in the wake of the search of Michael Cohen’s devices, which used a Special Master.

Moreover, in the Fall of 2019, during an intense debate over the impeachment and the campaign for the upcoming Presidential Election, with Giuliani publicly acting as President Trump’s personal attorney, the Government decided to take the unprecedented step of seeking a search warrant for Giuliani’s iCloud account. In these circumstances, on the heels of the precautions instilled by Judge Wood in a nearly identical situation, the use of a one-sided “filter” team was highly inappropriate and inadequate to identify privileged materials and thereby protect Giuliani and his clients ’attorney-client privilege, and highly indicative of the appearance of impropriety. Had this been done overtly, or through the Government’s less onerous subpoena powers, we would have requested that a Special Master to be appointed at the time. Instead, the Government has had these private, confidential, and privileged materials in their possession for over eighteen months, and established a Taint Team who acted as prosecutor, defense lawyer, Special Master and Judge entirely in secret, knowing full well this contravened the protocol established in the Cohen case.

Except it’s not remotely unprecedented. That is, literally, the same thing that happened to Cohen. Indeed, his Trump Organization emails were preserved (at Microsoft) and searched by Mueller’s team, then shared with SDNY under a new warrant. And those emails actually did pertain to the President — though from the campaign period, not the period when he was trying to coerce campaign assistance from a foreign government.

Ultimately, a big story here is that someone high up in Billy Barr’s DOJ authorized the sealed searches in November and December 2019, making Rudy’s wails far less convincing. My guess is that after Rudy made Brian Benczkowski look corrupt for taking a related meeting on a bribery case (of the Venezuelan bankrolling the Ukrainian grift) at a time when Rudy was being criminally investigated, Benczkowski wasn’t all that interested in going out on a limb to protect Rudy, especially as it would focus attention on the earlier corrupt review of the whistleblower complaint. My further guess is that after Benczkowski resigned, effective July 3, and after Billy Barr failed to replace Geoffrey Berman with a loyal flunky during precisely the same weeks in June 2020, Barr and Jeffrey Rosen went to epic lengths to prevent this warrant from being approved, with Rosen going so far as to require that a specific person in the Deputy Attorney General’s office be required to sign off on such a warrant on December 30, weeks before the second effort. Whatever the case, Trump’s DOJ approved the covert warrants, the one both lawyers are wailing the most loudly about.

If, as the lawyers wail, SDNY has been sifting through their cloud content, then this warrant shouldn’t hurt them all that much more than their earlier searches (unless Parnas revealed that they weren’t backing up their encrypted apps to the cloud).

Except — particularly given the confirmation that Lev Parnas unsuccessfully deleted his own iCloud account — Rudy’s insistence that he doesn’t have a guilty conscience and wouldn’t have deleted anything rings false.

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.

At about this stage in the Michael Cohen litigation, we learned that he, too, had deleted some information.

Not only has SDNY been sorting through these files for 18 months, they had Parnas and Fruman’s content for far longer, and since then Parnas has been trying hard to take Rudy down. So I would imagine SDNY had good reason to believe that Rudy may have destroyed evidence.

Key related posts

October 14, 2019: The Criminal Investigation into Paul Manafort Was (and May Still be) Ongoing–and Likely Pertains to Trump’s Ukraine Extortion

The Parnas and Fruman grift was, in many ways, the direct continuation of Manafort’s efforts to cash in on Trump’s win. You’d think that would raise the stakes of Rudy’s privilege claims — but Trump doesn’t appear to care.

October 16, 2019: On the Potential Viability of Foreign Agent Charges for Rudy Giuliani

I argued that doubts that Rudy could be prosecuted for FARA were not only too pat, but ignored his other criminal exposure for precisely the crimes that would be named in his warrant weeks later.

October 22, 2019: How DOJ Worked Overtime to Avoid Connecting the Dots in the Whistleblower Complaint

I laid out that Criminal Division didn’t do any of the things they’re supposed to do with the whistleblower complaint. That may have forced their hand to approve of the initial warrants against Rudy and VicToe.

October 25, 2019: Main Justice Now Looking for the Evidence in Plain Sight They Ignored in August

Just before the sealed warrants were obtained, Main Justice got more involved in the SDNY investigation.

November 4, 2019: When Your Joint Defense Agreement with the Russian Mob Blows Up in Your Face

I’ve written several posts about the ridiculous claims John Dowd made to try to cover this up in a network of privilege claims. The original is linked in the linked post. But I’m linking this one because I posted it on the same day DOJ got a warrant for Rudy’s iCloud.

November 23, 2019: Timeline: How Rudy Made It Hard for Mike Pompeo to Show Any Leadership

This post includes all the foreign influence peddling that Rudy was doing during the period covered by his warrant.

January 28, 2020: SDNY Prosecutors Protect Trump’s Privacy to Enter into a Joint Defense Agreement with the Russian Mob

There were a bunch of discovery issues in the case in January 2020, including the revelation that Lev Parnas had deleted iCloud data and an affirmative assertion that Parnas could not waive attorney-client privilege for Dmitro Firtash.

May 7, 2021: Four Ways Billy Barr Obstructed the Investigation into Rudy Giuliani

Barr was working hard to kill the Ukraine investigation during the period through which Rudy’s subpoena extends.

Four Ways Billy Barr Obstructed the Investigation into Rudy Giuliani

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Eventually, I want to do a post quantifying all the damage to national security Billy Barr did by thwarting an influence-peddling investigation into Rudy Giuliani in 2019. But first, I want to quantify four ways that Barr is known to have obstructed the investigation into Rudy, effectively stalling the investigation for over 500 days.

The effort is helped by Rudy lawyer Robert Costello’s public claim that DOJ obtained a search warrant on Rudy’s iCloud account sometime in late 2019. That indicates that the investigation into Rudy’s ties to Lev Parnas and Igor Fruman (whether Rudy was the primary target or their business, Fraud Guarantee) already showed probable cause that a crime had been committed before Barr took repeated steps to undermine the investigation.

Fail to recuse from an investigation implicating Barr personally

The MEMCON of Donald Trump’s call with Volodymyr Zelenskyy invoked Barr personally, twice, including in the very same response where the President said that Marie Yovanovich would “go through some things.”

Well, she’s going to go through some things. I will have Mr. Giuliani give you a call and I am also going to have.Attorney General Barr call and we will get to the bottom of it.

According to a September 2019 NYT article, National Security Division head John Demers (who remains at DOJ and who oversees the FARA unit that would have a role in this prosecution), Deputy Attorney General Jeffrey Rosen, and Brian Benczkowski learned about the concerns about the call, including that it named Barr, even before the formal whistleblower complaint came in. Barr learned about it via some unexplained means.

It’s not clear what happened in that first round of review, but ultimately prosecutors reviewed it once the formal whistleblower complaint was referred by Joseph Maguire later in August and “declined to open an investigation.”

Mr. Eisenberg and Ms. Elwood both spoke on Aug. 14 to John Demers, the head of the Justice Department’s national security division, according to three people familiar with the discussion. Ms. Elwood did not pass on the name of the C.I.A. officer, which she did not know because his concerns were submitted anonymously.

The next day, Mr. Demers went to the White House to read the transcript of the call and assess whether to alert other senior law enforcement officials. The deputy attorney general, Jeffrey A. Rosen, and Brian A. Benczkowski, the head of the department’s criminal division, were soon looped in, according to two administration officials.

Department officials began to discuss the accusations and whether and how to follow up, and Attorney General William P. Barr learned of the allegations around that time, according to a person familiar with the matter. Although Mr. Barr was briefed, he did not oversee the discussions about how to proceed, the person said.

[snip]

At the end of August, the office of the director of national intelligence referred the allegations to the Justice Department as a possible criminal matter. Law enforcement officials ultimately declined to open an investigation.

While it’s true that Barr outsourced some actions — such as determining what to do with the first report and the White House request that DOJ publicly exonerate him — there’s no indication Barr recused from the investigation and indeed he remained in the loop with the White House about it. His failure to recuse is particularly important because, as the table above notes, he got briefed on the investigation into Parnas and Fruman not long after he was confirmed in February 2019. For most of August and September 2019, Barr and Jeffrey Rosen would have been two of the only people at DOJ who would recognize the danger the whistleblower complaint posed to Rudy and, through him, to Trump himself.

Ensure Public Integrity reviews only the Trump transcript, not the entire whistleblower complaint

Mind you, Barr didn’t conduct the investigation of the whistleblower complaint. Public Integrity prosecutors in the Criminal Division did, overseen by Brian Benczkowski.

According to an October 2019 report, Benczkowski still did not know of the investigation into Parnas and Fruman when he took a meeting with Rudy in the fall to discuss a bribery case implicating the Venezuelan who was paying for some of the Ukraine dirt-digging.

Several weeks ago, Brian A. Benczkowski, the head of the Justice Department’s Criminal Division, and lawyers from the division’s Fraud Section met with Mr. Giuliani to discuss a bribery case in which he and other attorneys were representing the defendants.

That meeting took place before the United States attorney’s office in Manhattan publicly charged the two Giuliani associates, Lev Parnas and Igor Fruman, with breaking campaign finance laws and trying to unlawfully influence politicians, including former Representative Pete Sessions, Republican of Texas. Mr. Parnas and Mr. Fruman were part of Mr. Giuliani’s effort to push Ukraine for an inquiry into Democrats.

“When Mr. Benczkowski and fraud section lawyers met with Mr. Giuliani, they were not aware of any investigation of Mr. Giuliani’s associates in the Southern District of New York and would not have met with him had they known,” said Peter Carr, a department spokesman.

[snip]

Prosecutors in Manhattan informed Attorney General William P. Barr about the investigation of Mr. Parnas and Mr. Fruman soon after he was confirmed in February, according to a Justice Department official. They were required to do so under the department’s rule that requires prosecutors to notify the attorney general of any cases that could generate national news media or congressional attention.

When Mr. Giuliani and other lawyers requested the meeting with the Justice Department to discuss a foreign bribery case, Mr. Benczkowski and the lawyers in the Fraud Section had not been informed of the Manhattan case and agreed to meet.

That exonerates him for being stupid enough to take the meeting, but it reveals something about the review of the complaint: it could not have adhered to the most basic rules of “connect-the-dots” investigations put in place after 9/11 to protect national security.

That’s because the first thing you’re supposed to do when you get a tip that implicates national security is to search DOJ’s holdings to see if the tip connects with any known suspects or investigations. Had this tip been treated like DOJ had been drilling for almost 17 years by the time the tip was received, then investigators would have searched on the OCCRP profile of Parnas and Fruman cited repeatedly in the full complaint.

Had that happened, then the implications of it would have been clear, it would have been referred to SDNY, Benczkowski would have learned about it, and DOJ wouldn’t have been making public exonerations of Trump.

Get OLC to overclassify the Barr connection and delay informing Congress

One likely way DOJ managed to avoid connecting Trump’s quid pro quo with the existing investigation of Parnas and Fruman is by treating the call with Zelenskyy, falsely, as the entirety of the whistleblower complaint. There’s no reference to Parnas and Fruman in the call, and so searching on it would not ID the tie to the SDNY investigation.

That’s one of several things that Steve Engel’s OLC did to attempt to avoid — and succeed in delaying — informing Congress about the complaint.

Engel’s OLC memo (a reprise of the memo that Amy Berman Jackson ruled was just a PR stunt to justify lying to Congress) claimed that the whistleblower complaint pertained exclusively to the conduct of the President and as such did not pertain to the Intelligence Community and so didn’t need to be shared with Congress. The only way to reach this decision would be to ignore the parts of the whistleblower complaint that deal with abuse of classification and the withholding of funds.

The other thing OLC did was to — at first– treat mentions of Barr and Rudy, as well as Ukraine and Zelenskyy, as Top Secret, even though the White House had only deemed those references to be Secret.

This effort, both to avoid informing the Intelligence Committees and, once he did, to hide key details from them, ultimately failed. But it did delay the discovery of the call from August to September 2019.

Warn Rupert Murdoch

Bill Barr had a meeting at SDNY the day before Parnas and Fruman were arrested on October 9. He went from there to a meeting with Rupert Murdoch, at Murdoch’s home.

It’s unclear what happened at that meeting, but Sean Hannity didn’t get on his flight to Vienna to meet with Dmitro Firtash, thereby avoiding even closer legal involvement in yet another Trump scandal.

There’s no evidence I know of that Barr similarly warned Rudy — Rudy canceled his trip, too, but it probably only took the arrest of Parnas and Fruman to persuade him of the wisdom of doing that. So I don’t consider this an act of obstruction protecting Rudy — just an act of obstruction protecting Sean Hannity.

Parnas has alleged that he was only arrested as a way to keep him silent about all this. While there’s a lot of reason to believe that’s possible, I’m not aware of proof that it did. It is, notably, one thing he was dangling his cooperation on with SDNY before he got remarkably quiet as the investigation into Rudy kicked into active mode.

Attempt to replace Geoffrey Berman with a Barr flunky

As noted, if we can believe Costello, then at some point SDNY did manage to conduct a search on Rudy’s iCloud. One possibility is that DOJ justified a search on Rudy after learning that Parnas had deleted his own iCloud account.

We may get more details of how that occurred with the Special Master argument.

For a time, the impeachment investigation presumably stalled any investigation into Rudy.

But last summer, at a time between the time when Rudy would have been implicated in the President’s Ukraine-related impeachment but before the time Rudy was attempting to undermine the election in explicit service of the President, Barr fired Geoffrey Berman. As Berman described, Barr attempted to bypass succession rules to temporarily put his own flunky in charge of the office, much as he had put Timothy Shea in at DC USA to kill investigations into Roger Stone, Mike Flynn, and (probably) Erik Prince.

By refusing to go along with Barr’s false claims that he had quit, however, Berman succeeded in ensuring that Audry Strauss, his then-Deputy, would replace him, where she remains today.

In all of Berman’s communications about why he dug in, he emphasized that there were investigations he wanted to see to completion, presumably including but not limited to this Rudy investigation.

Again, this effort failed. But, given what happened in DC, it is almost certain that this was an attempt to protect Rudy (and Steve Bannon).

DOJ used the election to refuse to approve a warrant on Rudy. And (while I’m having difficulty finding it) they imposed a policy requiring higher approvals for obtaining warrants on attorney content.

Effectively, that provided a way to stall the search into Rudy until April 20, 2021, when Lisa Monaco was approved.

Bill Barr tried, repeatedly, to entirely kill the investigation into Rudy, like he killed prosecutions of Stone and Flynn. But ultimately, one after another DOJ professional thwarted his attempts, and his abundant efforts to protect Rudy only managed to delay the investigation from October 2019 to April 2021.

Update: William Ockham notes that the change in policy was imposed on December 30, 2020, after Barr had resigned and at a time when Acting Attorney General Jeffrey Rosen knew that Joe Biden would take over DOJ. The new policy required consultation with a designated attorney in Office of Deputy Attorney General.

Within OEO, the Policy and Statutory Enforcement Unit (PSEU) is the section that provides this consultation. See Office ofthe Deputy Attorney General Guidance on AttorneyClient Privilege andAttorney Work Product Filter Protocols/or Search Warrants (July 2020). In many cases – particularly those involving significant investigations and high-profile matters – proposed searches are separately reported in urgent reports to the Attorney General and the Deputy Attorney General. To ensure mo!”e uniform notification procedures going forward, PSEU should notify the Office of the Deputy Attorney General (ODAG) of proposed searches involving subject attorneys. ODAG will assign an attorney to handle this responsibility who has the requisite knowledge and experience to provide meaningful input to PSEU. That attorney will provide updates to the Deputy Attorney General as necessary. Absent exigent circumstances, the OEO/PSEU consultation in Section 9-13.420 shall not be concluded until after ODAG has been notified and provided with an opportunity to provide input.

While probably not the sole intent, this may be why the search on Rudy was not approved until Lisa Monaco was confirmed on April 20.

In Request for Special Master, the Lev Parnas Prosecutors Hint at Prior Filter Team Searches on Rudy

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The day after the search on Rudy Giuliani and a single Victoria Toensing phone, the prosecutors on the Lev Parnas case wrote a letter to the judge in that case, Paul Oetken, asking that he appoint a Special Master to review the content of their phones before turning that content over to prosecutors. It was unsealed yesterday after Rudy and Toensing’s lawyers got to review the redactions and add any they wanted. Oetken has ordered a briefing schedule about how this should proceed, which will extend through May 17.

The letter suggests certain things:

  • The participation of Oetken and the Parnas prosecution team (Rebekah Donalski, Nicolas Roos, and Aline Flodr) is consistent with this investigation arising out of the Parnas investigation, as has been reported.
  • These searches were approved on April 21, which was the day after Lisa Monaco was confirmed on April 20. That suggests she approved of this search. It’s normal for the Deputy Attorney General to sign off on controversial searches like this, and this suggests they waited to have the confirmed DAG sign off rather than have John Carlin, who had been acting DAG until Monaco was confirmed.
  • A court in Maryland signed off on the seizure of Toensing’s phone before SDNY signed off on the search of it.
  • The letter cites two exceptional circumstances when it might be appropriate to appoint a Special Master: when the attorney-client privilege would involve the President, and so implicate executive privilege, and when the attorney is involved in matters “adverse to the United States Attorney Office.” It’s not clear if prosecutors have something specific in mind with the latter reference, but it’s certainly possible that this concerns matters that one or the other lawyer has clients who are before SDNY.
  • Seemingly to explain why Rudy and Toensing aren’t making this request, the letter notes that defendants normally do but, in this case, “there is no pending criminal case against the subjects of the search.” Make of that what you will.
  • The government is basically asking for the same initial rules to be applied as were applied in the Michael Cohen case. They don’t, however, ask that any legal discussions be submitted to the public docket, which is something that happened in Cohen’s case that seemed to dissuade Trump from making frivolous claims of attorney-client privilege.

The most interesting bit of the letter, however, comes after a redacted passage with two redacted footnotes.

That introduces the following discussion:

The Government believes that its use of a filter team to conduct a review pursuant to established protocols is sufficient to protect applicable privileges and that [one line redacted] given that the searches [redacted] were done in an overt manner. [half line redacted] as well as the unusually sensitive privilege issues that the Warrants may implicate, the Government considers it appropriate for the Court to appoint a special master to make the privilege determinations as to materials seized pursuant to the Warrants. In particular, the overt and public nature of these warrants necessitates, as Judge Wood observed, the appointment of a special master under the “perception of fairness, not fairness itself.”

That is,  the government is explaining — in a letter that preempts any demand from Rudy and Toensing — that they don’t really need to do it this way, but partly because this search was public, it justifies doing so here.

But remember that the search of these devices is not the only one alleged. Rudy and his lawyer, Robert Costello, claim that SDNY also got a “covert” warrant for Rudy’s iCloud account sometime in late 2019.

A lawyer for former New York City mayor and Donald Trump attorney Rudy Giuliani said the Justice Department revealed on a Thursday conference call that the feds had penetrated Giuliani’s iCloud long before Wednesday’s search warrants were executed.

“I was told about it today in a conference call with the [U.S.] Attorney’s office,” attorney Robert Costello, a longtime friend of Giuliani’s, told The Daily Beast on Thursday night. “They told me they obtained a ‘covert warrant’ for Giuliani’s iCloud account in ‘late 2019.’ They have reviewed this information for a year and a half without telling us or [fellow Trump-aligned attorney] Victoria Toensing.”

During an appearance on Tucker Carlson’s Fox News show on Thursday night, Giuliani himself briefly referenced the warrant to search his iCloud account. “In the middle of the impeachment defense, they invaded, without telling me, my iCloud,” the Trump confidant said. “They took documents that are privileged. And then they unilaterally decided what they could read and not read. So the prosecutors at the Justice Department spied on me.”

A year and a half would put the search in October 2019, quite possibly before impeachment had formally started, and around the time when Lev Parnas and Igor Fruman were first charged. It likely put it at a time when Trump had no overt defense needs, and so no acknowledged privilege here (unless you count John Dowd’s October 3 letter to Congress that effectively put Trump in a joint defense agreement with Parnas and Fruman and alleged Russian mobster Dmitro Firtash).

I had thought this earlier reference might have been to a preservation order served to Apple, but the redacted passages are consistent with there having been a real search, one for which SDNY used only a taint team to weed out what was genuinely privileged. And there was clearly probable cause: Rudy was the business partner of two people charged for their business doings.

According to the terms of this letter, in the case of a covert search like the one Rudy claims occurred, there would be less cause for a Special Master.

Which is to say this letter may be more about the searches that have already occurred rather than the forthcoming exploitation that will be done with the oversight of a Special Master.

The Mistaken Presumptions of Virtually All Discussions of a Future Trump Prosecution

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Jack Goldsmith has written a piece arguing against a Trump prosecution under the Biden Administration. He’s wrong on a key point that many other people engaging in this discussion also are. He’s wrong about what crime might be prosecuted and whose DOJ investigated it.

Before I get to that, though, I want to critique two smaller issues in his post.

First, he links to the DOJ IG investigation on Carter Page, apparently suggesting it supports a claim that that report found there were inappropriate parts of the investigation into Donald Trump.

The first in this line was the investigation of the 2016 Trump campaign and presidential transition by the FBI and the Obama Justice Department, which continued with the Mueller investigation. Some elements of this investigation were clearly legitimate and some, clearly not.

Except that’s not what that report shows (even ignoring the report’s own problems). It shows that FBI followed the rules on informants and even on including an investigative agent in Trump’s first security briefing (after which Flynn promptly moved to cover up his secret relationship with Turkey). It shows that there were problems with the Carter Page FISA application. But the single solitary thing in the report that would not survive a Franks review is Kevin Clinesmith’s alteration of an email. Every single other thing would meet the Good Faith standard used in Fourth Amendment review. And all that’s separate from the question of whether Carter Page was a legitimate target for investigation, which the bipartisan SSCI investigation has said he was.

I also disagree with Goldsmith’s concerns about the status of the Durham investigation going forward.

But though Durham started out as a credible figure, the review was damaged from the beginning due to Trump’s and Barr’s ceaseless public prejudging of the case (and, for some, Durham’s response to one of Horowitz’s reports). And all of that was before Barr expanded the investigation into a criminal one and then later appointed Durham as a special counsel to ensure that his criminal investigation could continue into the Biden administration. Once again, the nation is divided on the legitimacy of all of this.

The third challenge, exacerbating the first two, is that these investigations—the FBI investigation of the Trump campaign and transition, the Durham investigation, and the Hunter Biden investigation—extended (or will extend) into an administration of a different party. That means that what began as a cross-party investigation where the worry was bias against political opponents will transform, in the middle of the investigation, into an intraparty investigation, where the worry will shift to one party’s desire for self-protection.

I think the Durham investigation is misunderstood by all sides. Even according to Billy Barr, Durham has debunked some conspiracy theories Republicans have floated and he appears to have moved beyond the question of whether the CIA wrongly concluded that Putin wanted to elect Trump. That means if he were to write a report, it would substantially consist of telling the frothy right that their conspiracy theories were just that, and that George Papadopoulos really did entertain recruitment by at least one Russian agent.

That said, the Durham investigation has, unfortunately, been hopelessly biased by Billy Barr’s work in at least two ways. Durham apparently believes that the treatment of partisan bias at DOJ has been equally applied, which is demonstrably false (which also means he’s relying on witnesses who have themselves committed the sins he has used to predicate his own investigation, using FBI devices to speak for or against a political candidate). More troublingly, every single legal document his prosecutors have filed thus far have betrayed that they don’t understand the most basic things about the counterintelligence investigations they’re focusing on. But because of that ignorance, I’m fairly confident that if Durham tried to prosecute people for the theories that Bill Barr has been pushing while micromanaging this, Durham’s prosecutors would get their ass handed to them. Plus, even without Biden’s AG doing anything, I think there’s a possibility that Durham’s independence can be put to good use to investigate the crimes that Barr’s DOJ may have committed in pushing these theories. And there’s an easy way to solve the political nastiness of Barr’s special counsel appointment: by swapping Durham for Nora Dannehy. In short, freed from the micromanaging and mistaken beliefs of Bill Barr, Durham may evolve into a totally useful entity, one that will debunk a lot of the bullshit that the frothy right has been spewing for years.

In any case, the only reason it would be perceived as a cross-party investigation was the micromanagement of Barr. The FBI is not a member of either party, and if Durham finds real crimes — like that of Clinesmith — by all means he should prosecute. Once he is freed of Barr’s micromanagement, though, he may discover that he was given a very partial view of the evidence he was looking at.

Which brings me to Goldsmith’s treatment of whether or not Trump should be prosecuted. Before giving three reasons why one shouldn’t investigate Trump, he lays out what he sees as the potential crime this way:

Many people have argued that the Biden Justice Department should continue this pattern by examining the criminal acts Trump might have committed while in office—some arguing for a full-blown broad investigation, others (like my co-author, Bob Bauer, in “After Trump”) for a measured, narrowly tailored one. I don’t think this is a good idea. I doubt Trump has committed prosecutable crimes in office (I am confident that obstruction of justice prosecution would fail), I doubt he will ever go to jail if he did commit criminal acts in office (which would make the effort worse than useless), Trump will thrive off the attention of such an investigation, and the Biden administration will be damaged in pursuing other elements of its agenda (including restoration of the appearance of apolitical law enforcement). But the main reason I am skeptical is that such an investigation would, in the prevailing tit-for-tat culture, cement the inchoate norm of one administration as a matter of course criminally investigating the prior one—to the enormous detriment of the nation. (I do not believe that federal investigations for Trump’s pre-presidential actions raise the same risk.

There are two problems inherent with Goldsmith’s logic here, problems that virtually all the other people who engage in this debate also make.

First, he assumes that any prosecution of Trump would have to engage in further investigation. Here’s just one of several places where he makes that assumption clear.

The investigation by one administration of the predecessor president for acts committed in office would be a politically cataclysmic event.

Goldsmith doesn’t consider the possibility that such an investigation was begun under Mueller and continued under Bill Barr, waiting for such time as Trump can be charged under DOJ guidelines. It’s odd that he doesn’t consider that possibility, because Mueller laid that possibility out clearly in the report, describing leaving grand jury evidence banked for such time as Trump could be charged (indeed, it’s fairly clear a January 2019 Steve Bannon grand jury appearance included such evidence). If Bill Barr’s DOJ conducted an investigation that shows Trump committed a crime, it would break out of the tit-for-tat that Goldsmith complains about.

Goldsmith also appears to believe, even in spite of Trump’s transactionalism, that any crime Trump committed in office would have begun and ended during his term of office.

Part of these two errors appear to stem from another one. Goldsmith clearly believes the only crime for which Mueller investigated Trump is obstruction and he dismisses the possibility that an obstruction prosecution would stick. I’m agnostic about whether that view of obstruction is true or not. Even just reviewing how the Mueller Report treated the Roger Stone investigation, though, I’m certain there are places where the Mueller Report protected investigative equities. That may be true of the obstruction case as well. If so, then it would suggest the obstruction case might be far stronger than we know.

But it is false that Mueller only investigated Trump for obstruction. That’s because Trump may have entered into a conspiracy with his rat-fucker. In addition to investigating Roger Stone for covering up who his tie to Wikileaks was, Mueller also investigated Roger Stone for entering the CFAA conspiracy with Russia, a part of the investigation that recently declassified information as well as the warrants in the case make clear continued after the close of the Mueller investigation. Not only did Mueller ask Trump about his contacts with Stone on the specific issue for which the rat-fucker remained under investigation after Mueller closed up shop, but Mueller’s last warrants listed Stone’s written record of his communications with Trump during the campaign among the items to be seized in the search of Stone’s homes. If Stone entered into the CFAA conspiracy with Russia and those contacts show that Trump entered into an agreement with Stone on his part of the conspiracy, then Mueller was investigating Trump himself in the conspiracy. There is no way you target Stone’s records of communications with Trump unless Trump, too, was under investigation for joining that conspiracy.

I know I’m the only one saying this, but that’s in significant part because — as far as I know — I’m the single solitary journalist who has read these documents (plus, the unsealed language showing the investigation into Stone on the CFAA charges got buried in the election). But the record makes this quite clear: by investigating Roger Stone, Mueller also investigated Donald Trump for joining the CFAA conspiracy with Russia that helped him get elected. And because Mueller did not complete the investigation into Roger Stone before he closed up shop, he did not complete the investigation into Donald Trump.

And while I’m less certain, abundant evidence tells us what Stone and Trump’s role in the conspiracy may have been: to enter into a quid pro quo trading advance access to select John Podesta files (and, possibly, optimizing their release to cover up the DHS/ODNI Russian attribution statement) for a pardon for Julian Assange.

Stone did something in August 2016 to obtain advance copies of the Podesta files that the frothy right believed would be particularly beneficial in attacking Podesta and Hillary. Days before the Podesta file release in October 2016, Stone and Credico appear to have started talking about a pardon for Julian Assange. After the release of the Podesta files, Trump discussed reaching out to Assange with more people, including Mike Flynn. And no later than 7 days after the election — and given Credico’s refusal to give a straight answer about this, probably before — Stone set out on an extended effort to deliver on that pardon. And Trump took an overt act, as President, to try to deliver on that quid pro quo when he ordered Corey Lewandowski to tell Jeff Sessions to shut down any investigation into the hack-and-leak (which would have shut down the investigation into Assange’s role in it).

I have no idea whether DOJ obtained enough evidence to charge a former president in conspiring with a hostile foreign power to get elected. The investigation into Stone’s role in the conspiracy may have shut down when Barr’s intervention in Stone’s sentencing led all four prosecutors to drop from the case, so it’s possible that a Biden DOJ would need to resume that investigation (and finish it up before statutes of limitation tolled). Still, as of October 1, when DOJ withheld almost the entirety of two interviews with Margaret Kunstler to protect an ongoing investigation, that part of the investigation was ongoing. So if you want to consider the possible universe of Trump charges, this is the possibility you’d need to consider: that after Mueller shut down but before the end of Barr’s tenure, DOJ acquired enough evidence to prosecute Donald Trump once he becomes available to prosecute under DOJ rules.

I think there are other instances where Trump cheated to win in criminal fashion (even ignoring the hush payments for which he got named in Cohen’s charging documents). For example, Barr very obviously violated DOJ guidelines in his treatment of the whistleblower complaint about the Volodymyr Zelenskyy call, and with the evidence that OMB, State, and DOD withheld from the impeachment inquiry and witnesses subject to subpoena (indeed, at least some of whom will likely have no Fifth Amendment privileges after a pardon), the impeachment case is likely far stronger than Goldsmith imagines. Plus, there is an obvious tie to the SDNY investigation into Lev Parnas (where the whistleblower complaint would have been referred had Barr not violated DOJ guidelines). So on that case, it might be a question of Biden shutting down an ongoing investigation, not one of starting a new investigation.

Perhaps the most difficult and controversial decision for a Biden AG will be whether to reopen the investigation into the Egyptian payment Trump may have gotten in 2016 that kept his campaign afloat, one that SCOTUS reviewed (for the Mystery Appellant challenge) and sustained a subpoena for. Per CNN, DOJ doesn’t yet have enough to prosecute that, but that’s because DOJ chose not to subpoena Trump Organization for documents. And a Biden Administration could sanction the Egyptian bank to require it to cooperate in a way they refused to do under Mueller.

But those two instances can’t be shown via the public evidence. The overt act that Trump took in response to Roger Stone’s request — one Stone documented in a DM to Julian Assange — is public. Importantly, this would be a conspiracy that started before Trump got elected and extended into his presidency.

If you want to imagine whether Biden would prosecute Trump, you have to consider the possibility that he would prosecute Trump for crimes Bill Barr investigated.