News yesterday that federal agents had executed search warrants at the Manhattan office and home of Rudy Giuliani is significant, but it is possible to overstate or understate the consequences in light of Giuliani’s résumé and his affiliation with former President Donald Trump. Here is what it means and what it does not mean when the FBI searches the premises of a high-profile lawyer who represents a former president.
What It Means
A search authorized by the Southern District of New York, the very U.S. Attorney’s Office that Giuliani once led, is in itself significant. By definition, a search warrant requires a finding by a judge of probable cause that the search will uncover evidence, fruits, or instrumentalities of a particular crime. A federal agent must submit to the court an affidavit detailing the facts in support of the finding of probable cause, which is defined as a fair probability under the totality of the circumstances. Probable cause has been described as something more than reasonable suspicion, but less than preponderance of the evidence. That warrants were served at Giuliani’s premises means that a judge has found that probable cause exists to believe that evidence, fruits, or instrumentalities of a crime are currently present at Giuliani’s home and office. The finding by an independent judicial officer cannot be dismissed as a “witch hunt” lacking any factual basis.
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In addition, we can also conclude that officials at the Department of Justice have determined that the evidence to be found was important enough to justify the potential intrusion into the attorney-client privilege. The Justice Manual, which governs DOJ practices, requires searches of an attorney’s office to receive higher scrutiny than other warrants. Searches of attorney’s offices must be approved by the applicable United States Attorney or assistant attorney general who is leading the investigation, and then further approved by DOJ’s Office of Enforcement Operations in Washington, part of the Criminal Division, another component that Giuliani once led as assistant attorney general.
Under a memo issued in December, the deputy attorney general, the department’s No. 2 official, also must be notified of a search of an attorney’s office through what is known as an “Urgent Report.” An Urgent Report is used to communicate particularly significant information to the highest levels of the department. The purpose of Urgent Reports is to give DOJ leadership advance notice of operational activities in significant cases, and also to provide an opportunity for them to request a full briefing and, where appropriate, to give the operation the green or red light. Here, we can safely assume that new deputy attorney general, DOJ veteran Lisa Monaco, was aware of this warrant and either approved it or, at the least, saw no reason to stop it from going forward. It now appears likely that this matter was one of the first items to cross her desk upon being sworn in last week.
Finally, we can conclude that the investigation is in its advanced stages. To develop sufficient evidence to establish probable cause, it is necessary for agents to have first undertaken the covert investigative steps that yielded the facts to demonstrate that this legal standard has been met. Covert investigative steps might include grand jury subpoenas to obtain financial records, sealed court orders to review tax records, witness interviews or even, in rare cases, a court-approved wiretap. A search is an overt investigative step, meaning once agents show up with a finding of probable cause, the subjects of the search are aware that they are under investigation. Any element of surprise is lost. As a result, the execution of search warrants tends to be one of the last steps in an investigation.
What It Does Not Mean
The fact that a search warrant was executed does not necessarily mean that Giuliani will be charged with a crime. While we know that probable cause of a crime exists, all we know is that the evidence, fruits, or instrumentalities of the crime are stored at the former New York mayor’s office and home. We do not know that he is the one who purportedly committed the crime or what that crime is. A search warrant served simultaneously yesterday on another former Trump lawyer, Victoria Toensing, in Washington. D.C., suggests that the investigation may relate to their mutual efforts to obtain from Ukraine adverse information about then-presidential candidate Joe Biden. Or it could relate to the pending case against two men who helped Giuliani in his efforts to find information about Biden in Ukraine. Those two men, Lev Parnas and Igor Fruman, were charged by the Southern District of New York with campaign finance violations in 2019.
In addition, although evidence that supports a finding of probable cause is technically sufficient to file criminal charges, DOJ policy requires something more. The Justice Manual states that a federal prosecutor should file charges only if the admissible evidence is probably sufficient to obtain and sustain a conviction and the charges will advance a substantial federal interest. In other words, prosecutors must consider not only whether they can file charges, but whether they should file charges.
Regarding Giuliani, it may be that agents have already assembled evidence to meet this standard, and the search was simply the last step before filing charges and arrest. Or it could be that the seized materials must be analyzed before any charging decisions can be made.
What Comes Next?
When a lawyer’s office is searched, agents and prosecutors cannot simply review the materials themselves the way they would in an ordinary search. That’s because the attorney-client privilege protects communications between lawyers and clients for the purpose of seeking legal advice, and a lawyer’s office is bound to contain them. Instead, the court that approves the warrant also approves a method for conducting the search to safeguard the privilege. In some instances, a court will permit the government to assign a “filter team” of agents not otherwise assigned to the case to review and segregate the materials, and divide the items into categories of privileged, unprivileged, and privilege to be determined by the court. When the communications constitute fraud or some other crime, the privilege must yield. Other times, the court will appoint a judicial officer or a special master to undertake the review, passing on to investigators only material that is not subject to the privilege and returning other items to the attorney who is the subject of the search.
For example, when federal agents searched the office of former Trump attorney Michael Cohen, a retired judge was appointed to conduct this task, and the review took several months to complete. Giuliani’s representation of the former president makes it likely that a judge would take this extra precaution. Cohen was eventually charged and pleaded guilty to fraud and tax offenses and lying to Congress.
News reports indicate that among the items searched were electronic devices, such as cellphones and laptop computers. Reviews of electronic devices, which can store large volumes of information, can take a long period of time. But the need to review the contents of such devices has taken on new significance in recent years because of the growing use of encrypted messaging applications. Whereas investigators once were able to obtain the contents of text messages from phone companies, it is now sometimes necessary to look at the phones themselves to obtain the contents of phone messages on apps like Signal and What’s App.
When the review of these materials is completed, it could lead to charges against Giuliani or others, perhaps even the former president himself. While Trump was not charged in connection with the Cohen case, in court documents, prosecutors stated that Cohen “acted in coordination with and at the direction of Individual-1,” and that Individual-1 “was elected president.” That investigation was ultimately closed without the filing of charges against Trump. We will have to wait and see whether a different outcome follows the search of Giuliani’s office.
