Giuliani Investigators Feared He Would Intimidate Witnesses

Federal prosecutors secretly searched Rudy Giuliani’s Apple iCloud account in 2019 after telling a judge they feared he would destroy evidence or intimidate witnesses if he knew he was under investigation, defense lawyers said in a court filing.

The idea that the former New York City mayor and personal attorney to Donald Trump would engage in such conduct “strains credulity,” the lawyers said in a filing unsealed Monday. They said the iCloud search likely informed the Federal Bureau of Investigation’s April 28 raid on Giuliani’s home and office, and both actions might be illegal.

Federal prosecutors “simply chose to treat a distinguished lawyer as if he was the head of a drug cartel or a terrorist, in order to create maximum prejudicial coverage of both Giuliani, and his most well-known client –- the former President of the United States,” they told a judge in Manhattan federal court.

The filing was Giuliani’s first legal response to the searches. Federal prosecutors have asked a judge to appoint a so-called special master to review the evidence seized for material covered by attorney-client privilege. But Giuliani’s lawyer Robert Costello said the legality of the 2019 search, which they only learned about in a closed-door hearing shortly after the raids, must be addressed first.

“The validity of the 2019 covert warrant, and the handling of the information obtained by the prosecutor, are serious questions that must be resolved before any further damage is done,” he said in the filing.

Excluding Evidence

Costello said the defense wants to scrutinize the prosecutor’s claim that Giuliani might destroy evidence or intimidate witnesses, since that was the basis for the iCloud search. If that claim proves to be false or incomplete, the defense will move to block the government from using what it will say is illegal evidence. To the extent any of that evidence was used to justify the April raids, that could be excluded as well.

The searches and raids on Giuliani are part of an investigation into whether his dealings in Ukraine violated U.S. laws on covert lobbying for foreign interests. Giuliani orchestrated the firing of the then-U.S. ambassador to Ukraine, Marie Yovanovitch, as he was seeking political dirt on Joe Biden ahead of the 2020 election. The episode played a role in Trump’s first impeachment.

The investigation is also linked to the prosecution of two of Giuliani’s associates who were involved in his Ukraine effort, Lev Parnas and Igor Fruman. The pair have pleaded not guilty and are awaiting trial.

In a parallel filing on Monday, an attorney for Victoria Toensing, a Washington lawyer close to Trump and also involved in the Ukraine efforts, revealed prosecutors accessed her iCloud and Google cloud accounts in 2019 as well. FBI agents visited Toensing’s home and retrieved her iPhone last month on the same day they executed their search warrant on Giuliani.

Toensing’s attorney, Michael Bowe, said she also only recently learned about the search of her online documents. He demanded to know the basis for the government’s “covert warrant” against his client.

Costello said in the filing that the government’s actions were unnecessary because Giuliani offered to cooperate. The suggestion that Giuliani, who was Manhattan U.S. attorney in the 1980s, would destroy evidence or intimidate witnesses “is not only false, but extremely damaging to Giuliani’s reputation,” said Costello. “It is not supported by any credible facts and is contradicted by Giuliani’s efforts to provide information to the government.”

He also noted that, while prosecutors were requesting a special master to screen material from the April raids for attorney-client privilege, they had not done so at the time of the iCloud searches. The 2019 searches came more than a year after the government agreed to a special master to handle material seized by the FBI raids on another Trump lawyer, Michael Cohen.

“Based on its experience in the Cohen case, the government knew better, or should have known better, that it should not make unilateral, uninformed secret decisions about privilege, but clearly threw caution to the wind in its attempt in this investigation in search of a crime,” Costello wrote. He said privileged and possibly classified material had likely been seized.

“Prosecutors obtained the entirety of Giuliani’s iCloud, which certainly had communications with, and on behalf of, the sitting President, containing material relating to the impending impeachment, the welfare of the country and to national security,” he said.

The iCloud warrant sought “address book information, call history and voicemails, text message content, email content, photos and videos, documents, search and web histories,” among other things, Costello said.

The lawyer also renewed suggestions that the investigation of Giuliani was politically motivated. Though the iCloud search was approved by the Trump Justice Department, Manhattan prosecutors subsequently failed to get approval for a search warrant on Giuliani’s electronic devices after the November election and again in January, Costello noted.

After Biden Administration appointees took over the Justice Department, the prosecutors tried again and were effectively granted a “do over,” Costello said.

The case is In the Matter of Search Warrants Executed on April 28, 2021, 21-mc-425, U.S. District Court, Southern District of New York (Manhattan).

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