Vicky and Rudy: The Subjects of Delay

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.


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.


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


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.


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.


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.


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.

48 replies
  1. Hika says:

    “… the passwords on seven of the devices seized from Rudy.”
    I’d be trying “000000”; “123456”; “password”; “letmein”; “abcdef”; “itsme”; and “rudysphone”.
    After that, I’d go for his birthday and monthly alimony amount.
    Then again, there’s no guarantee that the guy who butt dials a reporter while talking about his desperate need for cash is even using a password on his devices.

  2. greengenes says:

    Thanks for this discussion. I have a few questions here as a non-lawyer who has some law school experience, which I will separate into different threads to not create a mega-thread. Is there privilege if no proper contract has been formed between Rudy and Trump, if one or both of them entered into the contract under deceptive conditions of fraud or coercion?

    • JVO says:

      A contract for an illegal purpose is void and unenforceable regardless whether written or verbal. You should quickly see how crazy this could get if it’s verbal given all the public statements. If it’s written – then the FBI should find it. If, as I would bet, it’s verbal, then I’m confident DonTheCon and FruityG will NEVER agree on what the terms were – or if it existed – as long as it delays the process. Even if there were a legal “contract” and even if it is not void, then we will have to see the rest of the evidence to see if, despite the above, the endeavors of the GoldenManBaby and the former SDNY AUSA (who I’ve heard from people that knew him then, that as a kid, Rudy would hang out with various non-blood-related-to-him “family” people) were NOT for an illegal purpose. I’m guessing that against that filter, there’s approximately ZERO chance of anyone legitimately finding their purpose wasn’t unlawful. 2 cents and change – FWIW

    • Ebenezer Scrooge says:

      A privilege exists if an attorney-client relationship exists. Such a relationship, like any agency relationship, can be established by contract but does not require one.

      • bmaz says:

        Actually, in most jurisdictions, it really does require a contract, in law known as a fee/retainer agreement. Further, it maintains both parties thereto to maintain the putative confidentiality and that it be about actual legal representation. Neither Rudy nor Trump did that. And that is before even getting to the crime fraud exception. Thanks for the drive by with bad information.

        • DaveC says:

          My understanding confirms BMAZ statement. An attorney I sought advice from a few years ago on a potential federal civil issue informed me that our relationship and discussions did not have attorney – client privilege unless and until I retained him with a written contract. (I did retain him, but nothing further came of the matter).

        • bmaz says:

          It is generally protected for seeking representation, but once you actually undertake it, you need an agreement.

        • vvv says:

          I’ve mentioned before in this state (IL) and most as I understand, a contingency contract must be in writing; without one, the attorney can only enforce what is known as *quantum meruit* (the reasonable value of services rendered).

          Re the retainer agreement, I have many times extended and accepted the putative $1.00 (generally re ethical issues).

        • Rugger9 says:

          Agreed about CA, it’s what we do here. But, this is a situation where the details are important. So, I would posit the question whether there are any states where such an agreement would not be required (i.e. is FL one of these?). Would such an arrangement require an actual presence in that state to be able to use it (by either client or attorney)? Otherwise, it sounds a lot like forum-shopping.

          Given how many times DJT made legal team changes (sometimes in head-snapping ways) I wonder how he dodged paying them if a fee agreement was in place.

        • bmaz says:

          That starts to get into hard details, state by state, that is probably too much for this thread. You can work without an agreement, but sue for unpaid fees? Not usually! And, yes, you can advise across state lines, but if it involves an actual case, you need to be what we colloquially call “being jumped in”. In short there needs to be local counsel that officially vouches for you and it is a rather formal process. And, by the way, CA is the biggest pain in the ass state for this now. I hate going there as an atty of record, it is just painful to get the pro hac vice done.

          Rudy has effectively nothing, or he would be trotting it out as opposed to begging.

        • Alan Charbonneau says:

          So, Hannity got it wrong?😁
          I mean, he watches Breaking Bad, right?

          “Never paid any fees. I may have handed him $10 once,” Hannity said on his own radio show. “I requested attorney-client privilege with him, and assumed our conversations would be confidential.”

      • JVO says:

        and there is an A-C relationship if the CLIENT believes there is one under the model rules

        • bmaz says:

          Lol, the so called “model rules”, like everything else about the ABA, do not control dick shit in any jurisdiction, that is always by the state bar rules. Please don’t dispense garbage information.

        • Troutwaxer says:

          A couple questions for you on the subject of attorney/client privilege: First, when Rudy went to court about the “election fraud” issues was his client Trump or some other entity? Second, is going to court on someone’s behalf sufficient to establish privilege in the absence of a written contract?

        • Rayne says:

          Betting Rudy’s going to have to produce a retainer agreement to remedy this disavowal.

          Timing will be everything — when was Rudy formally representing Trump, when was his representation terminated, and was Rudy representing Trump personally or Trump’s campaign, or some other entity through which Rudy was paid?

        • bmaz says:

          Lol, exactly. If you want to punch holes in a privilege claim, whether by a lawyer, who only has it via a client, or the client, there is not a better law school exam question than this bunk.

        • Rayne says:

          Then there should be a retainer agreement which spells this out and subsequent reporting with the FEC if Rudy provided a donation-in-kind to a former candidate or campaign.

          No evidence of a contractual relationship = no privilege.

        • Troutwaxer says:

          That’s exactly what I was thinking. Even a pro bono representation would have some kind of contract.

        • Leoghann says:

          I expect that last issue will be a big one. If there was a representation contract, was Rudy Fruitcake representing Citizen DJT, President 45, or the Campaign?

  3. greengenes says:

    With respect to the Special Master and filtering, and given all the situations, attorneys, and different clients, and given all of the spying and stalking by the Trump orbit on their perceived enemies, can the Special Master filter out information that pertains to other peripheral or overlapping attorneys and their clients (for example a stalked perceived enemy of Trump and their interactions with their fraudulent misrepresenting attorneys) if they find that information on Rudy’s and Toensing’s devices?

    • DaveC says:

      Speculating with some basis: DoJ (& the special master) would be wise to consider that, but the application would be (painfully?) case by case. Challenging search problem, identifying what correspondents / email / phone numbers should be recognized as attorneys or their clients. Hypotheticals are endlessly complex, I won’t speculate on them.

      • timbo says:

        One assumes the Special Master will follow the rules of the court in doing the filtering out of privileged information. And I’ll speculate on at least one possible scenario myself…

        In thinking on this a few seconds, I note that it is possible for one attorney (attorney A) to receive “privileged” information/communications, etc, between a different lawyer (attorney B) and attorney B’s client that attorney A is not entitled too, obtained in an illegal manner and/or for illegal purposes in the the furtherance of other criminal or potentially criminal activity, etc. Then the question is becomes much of the information of attorney B’s client privileged communication needs to be presented to the court (along the way) to reach a reasonable conclusion that 1) it is privileged, 2) possession of the information by a potential attorney A was unauthorized and 3) was likely obtained in an illegal manner and/or for criminal purpose, etc. Following, if charged and it goes to trial, proving attorney A’s >intent< in obtaining this privileged information would also become a factor… so certainly that will be weighed by the government attorneys and the court itself prior to things getting that far.

        So, to return to the topic of this sub-thread, 'oui—trés complique'!

  4. greengenes says:

    For “the subject of that investigation, may decide what is privileged and what is responsive in those materials” above, doesn’t that allow Rudy or other coconspirators to unilaterally usurp evidence from the judge and/or jury in a self-serving manner? What safeguards are there against usurping evidence that may not be privileged but on their face seem privileged without further discussion, evidence, and/or process to elucidate the non-privileged nature of what is being claimed is privileged?

  5. greengenes says:

    With respect to all of the people they hired, appointed, nominated, confirmed, pardoned, refused to prosecute, refused to jail, gave contracts to, changed the regulations and laws for, et cetera — what happens if the 18 or so investigations into Trump, Barr, the GOP ultimately find them to be found guilty of RICO, corruption, obstruction, treason, sedition, and/or insurrection? Fruits from a poisonous tree? Don’t they not only disqualify Trump and the GOP/RNC from public office retroactively, currently, and in the future, and don’t they mandate the use of US voiding laws to not let traitors, insurrectionists, and organized crime change even one law, regulation, policy, hire, contract, nomination, appointment, hire, pardon et cetera, to protect the United States from the same? Otherwise, not clawing back, not voiding, and not overturning their damage and leaving likely crime syndicate loyalists in place would leave urgent and immediate threats embedded in the US government to continue their organized crimes and to continue to obstruct justice for the same, correct?

  6. John Lehman says:

    …..slowly I turn…..step by step….inch by inch

    • John VanOphem says:

      Exactly – while I genuinely appreciate and respect @Popehat and @Bmaz and their real world experience, I remain of the view that while they are appropriately quick to reject such notions / comments – there has always been a blatant and active patina of corruption among the Trump acolytes and wannabees. Why that criming in plain sight can’t support a successful prosecution remains a mystery to me.

      [Welcome back to emptywheel. Please use the same username each time you comment so that community members get to know you. You’ve previously commented as “JVO” – pick one and stick with it. Thanks. /~Rayne]

      • bmaz says:

        Absolute bullshit. They were US government actors when there relevant acts occurred. RICO doe NOT by definition apply to US Govt and its actors. PLEASE stop this bullshit, it is silly and just gins up people that do not understand. It is getting ridiculous. And don’t yammer about “treason” either. Jeebus. Criminal prosecutions are possible; RICO and treason are not.

        • ducktree says:

          And why do you say “gin” like it’s a bad thing?!

          It’s already Friday at nearly 3:15, for pity sake and I’m only on my second martini…

        • Rugger9 says:

          Ah, that four-letter word again… I would think conspiracy is more appropriate (and just as long a jail term, I would think FWIW) but I do wonder if “government” service bars that angle as well. I would think it might as long as the person is formally an agent of the US, and while incompetence is not generally cause for prosecution, deliberate violation of law and policy is. The definitions of “formally”, “deliberate” and “violation” would of course be contested by DJT and his legal minions.

          As noted above, there has to be a formal notice to the court and opposing counsel that any attorney would have standing to speak for a client, otherwise I think that’s what amicus briefs are for. I don’t know how seriously a court would take amicus briefs in general in contrast to a pro hac vice counsel’s input. At least in CA, the opposing counsel can object and prevent substitution of an attorney or a pro hac vice pinch hitter (IIRC, IANAL) because this usually requires a hearing.

          However, we do have a blizzard of people with law licenses claiming to represent DJT in his various litigations, or his campaign, or… (as Rayne, et al point out above) interested parties. I would expect that at some point the layers of the legal onion would have to be peeled to decide who would have standing to speak or have A-C privilege.

          As for “treason” show me the declaration of war or at least the AUMF that pertains to Russia or Ukraine. Trick question, there isn’t one and that alone means “treason” is out as a charge no matter how much the RWNM bandies it about.

        • bmaz says:

          Oh, you can get pro hac vice in CA, it just is a sucky and lugubrious process. And expensive!

  7. The Old Redneck says:

    I don’t know what’s in those communications of course. But I think crime/fraud exception, if it’s available, is much cleaner than trying to argue AC privilege was waived by public statements. Courts guard AC privilege pretty jealously, and in general that’s for good reason.

    • bmaz says:

      Lol, courts only really guard it when there is a real A/C relationship. There was not here.

Comments are closed.