Giuliani Evidence Should Be Reviewed for Privilege, U.S Says

Federal prosecutors investigating Rudy Giuliani requested the appointment of a special master to determine what material seized in an FBI raid last week on the home and office of the former New York mayor and personal lawyer to Donald Trump might be covered by attorney-client privilege.

The request was filed last week but unsealed Tuesday afternoon in federal court in Manhattan. James Margolin, a spokesman for the Manhattan U.S. attorney’s office, declined to comment.

Giuliani’s lawyer, Robert Costello, said in a statement last week that Federal Bureau of Investigation agents had seized electronic devices “replete with material covered by the attorney-client privilege.” Costello had no immediate comment on the government’s request. U.S. District Judge Paul Oetken gave Giuliani until May 10 to respond to the government filing.

Similar complaints were raised after the April 2018 FBI raid on the home and office of another Trump lawyer, Michael Cohen. Trump and Cohen both filed motions raising attorney-client confidentiality, and a retired federal judge was appointed as a special master to sift through the material and determine when privilege applied.

‘Unusually Sensitive’

Trump allies including law professor Alan Dershowitz have called on Giuliani and the former president to fight to block prosecutors from examining the evidence seized.

The partially redacted April 29 government filing may have been intended to head off such a challenge. Though federal prosecutors resisted the appointment of a special master in the Cohen case, they are citing it now as a model for how to proceed in a case raising “unusually sensitive privilege issues.”

The Giuliani searches are part of a probe by Manhattan federal prosecutors into alleged foreign lobbying work in Ukraine. Giuliani has denied wrongdoing and said he never lobbied for anyone in Ukraine.

Legal experts noted that not all communications between a lawyer and client are privileged.

“The communication has to be for the purpose of giving or receiving legal advice,” said Kelly Currie, a former acting U.S. attorney in Brooklyn. “And you could also have a communication between a lawyer and a client, but if there’s a third party on that email, that also breaks the privilege.”

Exceptions

Any communications in furtherance of a crime or fraud are also excepted from attorney-client privilege. “If they discover evidence of others crimes during a search that complies within the scope allowed by the judge, they can use that as well,” said Stephen Gillers, a professor at New York University Law School. “They’re not limited.”

Gillers said the government would have anticipated the privilege issue and would likely have been ready to employ what’s known as a “taint team” of government lawyers who aren’t part of the prosecution to review material.

Raising attorney-client privilege didn’t stop the U.S. from prosecuting Cohen, who pleaded guilty to campaign finance and other charges four months after the raid. He has since become a fierce critic of his former boss and has predicted that Giuliani will also turn on Trump.

The case is In the Matter of Search Warrants Executed on April 28, 2021, 21-mc-00425, U.S. District Court, Southern District of New York (Manhattan).

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