Barbara Jones’ Special Mastery of Releasing Donald Trump’s Lawyers’ Crime-Fraud Excepted Communications

I knew Rudy Giuliani was in trouble when I read him — along with his lawyer Robert Costello, who allegedly tried to bribe Michael Cohen with a pardon in the wake of an SDNY seizure of his phones — claim that SDNY had first accessed Michael Cohen’s communications after SDNY seized Cohen’s phones in a search of his house and office.

In April 2018, the Government was in this exact same position it is in now in dealing with seizures made from the personal attorney to the President. This is now the second dawn raid of the office and home of an attorney for then President Trump. A year before they searched Giuliani’s iCloud account in November 2019, they were dealing with the raid of Michael Cohen’s home and law office. In Cohen v. United States, 18-mj-3161 (KMW), after conducting a search of President Trump’s personal lawyer’s home and law office, the Government opposed the appointment of a Special Master in a letter to the Court dated April 18, 2018. Counsel for Michael Cohen and intervening counsel for President Trump both requested that a Special Master be appointed and that the Special Master review the evidence, but only after counsel for the respective parties had reviewed the evidence and made their own claims of privilege. On the day of a scheduled conference to decide the issue, the Government, in a letter to Judge Wood, withdrew their opposition to the Special Master, but requested that the Special Master, and not defense counsel, review all the evidence and make the initial determinations of privilege. Judge Wood adopted the compromise and appointed a Special Master to review all materials. One of the Government’s counsel that signed that letter is counsel on this matter as well.

As a result, the Government was well aware that it had agreed to a Special Master in a case involving claims of attorney-client and executive privilege regarding the search and seizure of an attorney’s home and office when that attorney was the personal attorney for the President of the United States. Here, when faced with the exact same situation in November 2019, the Government decided on its own, to use its own Taint Team to sift through all of the evidence gathered and decide what materials were privileged. To make matters worse, not only was Giuliani not informed about this practice, but the Government also continued to keep him, the President and his counsel in the dark for 18 months while Giuliani cooperated with another office of the United States Attorney. 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.

Was it really possible, I asked myself, that the President’s own lawyer, as well as the President’s lawyer’s lawyer, had no idea that Mueller’s team had obtained Michael Cohen’s Trump Organization emails from Microsoft with an August 1, 2017 warrant, content which they later shared with SDNY?  Was it really possible, I wondered, that Rudy and Costello didn’t know that Mueller also obtained Cohen’s Google and iCloud content, obtained a non-disclosure order for it, and then later passed it on to SDNY, which obtained a separate warrant to access it? Did they not know that that process started 8 months before SDNY raided Cohen’s home and office and took his devices, which then led to the appointment of Special Master Barbara Jones? Did they really not know that SDNY first obtained Cohen’s content with some covert warrants, reviewed that information with the use of a filter team, and only after that got some of the very same information by seizing Cohen’s phones, only with the later seizure, used a Special Master to sort out what was privileged and what was not?

After the government’s reply, I thought for sure they’d start to cop on. I figured Rudy and Costello — who collectively, allegedly tried to bribe Cohen’s silence about the crimes he had committed while purportedly providing legal representation for Donald Trump — would understand the significance of this passage of the government reply:

Giuliani also analogizes this case to Cohen, suggesting that the Government should have known to use a special master because it had just agreed to use one in that case. (Giuliani Ltr. at 11). But Cohen favors an opposite conclusion: there, as here, the Government first obtained covert search warrants for accounts belonging to the subject. The returns of those covert warrants were reviewed by a filter team—a process which was not challenged. Although Judge Wood ultimately appointed a special master in Cohen, she repeatedly made clear her view that the use of a filter team was acceptable and was consistent with the substantial body of law in this Circuit. (See, e.g., Cohen, Dkt. 38 at 8). However, based on the unique circumstances of the case—Cohen’s principal and perhaps only client was then the President, and the case was subject to significant public attention—Judge Wood believed, and the Government agreed, that the use of a special master was needed for the “perception of fairness, not fairness itself.” (Cohen, Dkt. 104 at 88). But even after appointing a special master, Judge Wood continued to recognize the appropriateness of the use of a filter team: at the end of the special master’s review, there was one cellphone that had not been decrypted, and Judge Wood ordered that the if the cellphone was ultimately extracted, the privilege review could be conducted by the Government’s filter team. (Cohen, Dkt. 103 at 6). Thus, following Cohen, it was entirely appropriate for the Government to use a filter team during the covert phase of its investigation, but in light of the intense public interest in this matter following the overt execution of the 2021 Warrants, the Government agrees that while the appointment of a special master is not necessary for fairness, it is in the interest of ensuring that the privilege review process is perceived as fair.

But I didn’t write up the implications of that yet, because I figured there was still something that might save Rudy and Victoria Toensing. Maybe they’d pick a Special Master who would apply dramatically different rules than Special Master Barbara Jones had with Cohen, particularly an approach that said Cohen and Trump could claim privilege and hide the content, but any legal argument about that privilege had to be public. Surely they would be smart enough not to pick Jones, right? Surely, I thought, Rudy and Costello wouldn’t be dumb enough to be lulled into agreeing to appoint Jones herself, perhaps based on a false sense of confidence that since she works at Rudy’s former firm, she’ll go easy on the Mayor?

And yet, yesterday the government wrote to inform Judge Paul Oetken that the parties had agreed on a single choice to serve as Special Master: Barbara Jones.

The Government writes on behalf of the parties to propose the appointment of the Honorable Barbara S. Jones, a retired federal judge with the law firm of Bracewell LLP, to serve as the court-appointed special master for this matter.

They further asked that Oetken write up an order applying the same approach as Jones used with Cohen with Rudy.

The Government respectfully requests that the Court appoint Judge Jones to serve as the special master in this matter because her background and the resources available to her at her law firm will allow her to complete a privilege review in a fair and efficient manner. Mr. Giuliani and Ms. Toensing, through counsel, have both agreed to the appointment of Judge Jones. The Government has conferred with Judge Jones and she is available to accept this appointment. The Government respectfully suggests that the Court issue an Order of Appointment similar to the one issued by Judge Wood in the Cohen matter, setting forth the duties of the special master, the reporting and judicial review requirements, terms of compensation, terms of engagement of other professionals, and other relevant provisions. Cohen, No. 18 Misc. 3161 (S.D.N.Y. Apr. 27, 2018) (Dkt. 30). Judge Jones is available to speak with the Court directly should the Court have any questions about her potential appointment.

Understand, the government has now gotten Rudy on the record begging that he get the same treatment as Michael Cohen. It has gotten Rudy on the record saying he prefers to have a Special Master rifle through his potentially privileged communications than a filter team.

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.

It has also gotten Victoria Toensing to agree on the value of a Special Master (even though she requested she get first shot at reviewing her content).

Appoint a Special Master from the list of candidates proposed by the parties or another suitable candidate identified by the Court to oversee the process and resolve any disputes that may arise;

When former SDNY US Attorney Rudy Giuliani and former Deputy Assistant Attorney General Victoria Toensing made those comments, though, they probably didn’t think through the implication of filter team protocols that both presumably know or once knew, but which the government was kind enough to spell out in their reply to the lawyers’ letters:

As is its practice, the filter team did not release any potentially privileged materials based on the possible application of waiver or crime fraud principles, even if the applicability of those exceptions was apparent on the face of the document.

SDNY filter teams will not pass on potentially privileged materials seized from an attorney even if there is an obvious crime-fraud exception. By description, SDNY suggests that “the applicability of [such] exceptions was apparent on the face of” some of the communications — new copies of which SDNY seized last month — SDNY’s filter team reviewed already. But they couldn’t pass them on because that’s not how SDNY filter team protocols work.

And yet, as a result of Barbara Jones’ review of material seized from Donald Trump’s attorney’s devices, SDNY obtained evidence — of Michael Cohen negotiating hush payments with two women — that might otherwise have been privileged, but that was clearly evidence of a crime. In fact, Trump thought about fighting the release, except after Judge Kimba Wood ruled that legal disputes have to be public, Trump decided not to challenge its release.

An SDNY filter team cannot share evidence that shows a lawyer breaking the law in the service of doing Donald Trump’s dirty work.

But Special Masters can. And Barbara Jones already has.

When I first read these filings — especially SDNY’s very generous offer to pick up the tab for a Special Master — I thought it was just about timeliness, about getting Rudy’s evidence in hand as quickly as possible. But it’s not. It’s the only way that they can obtain materials that they know exist that show Rudy committing a crime in the guise of serving as a lawyer. Admittedly, it might just be materials implicating Lev Parnas and Igor Fruman. But, as happened to Cohen, it might also cover things Rudy did while allegedly doing lawyer stuff for Donald Trump.

Remember, this whole process started when John Dowd claimed that Parnas and Fruman helped Rudy represent Trump, Rudy represented Parnas and Fruman, and they also helped Toensing represent Dmitro Firtash.

Be advised  that Messrs. Parnas and Fruman assisted Mr. Giuliani in connection with his representation of President Trump. Mr. Parnas and Mr. Fruman have also been represented by Mr. Giuliani in connection with their personal and business affairs. They also assisted Joseph DiGenova and Victoria Toensing in their law practice. Thus, certain information you seek in your September 30, 2019, letter is protected by the attorney-client, attorney work product and other privileges.

John Dowd made an absurd claim that, even then, was a transparent attempt to hide real dirt behind attorney-client privilege. That’s precisely the material that SDNY is asking Barbara Jones to review to see whether it’s really privileged.

Update: Lev Parnas renewed his bid to force DOJ to go look for materials that help him at trial and support his selective prosecution claim. Along with describing some communications that he believes to exist that would be in Rudy’s files (such as proof of Rudy saying that one of their mutual Fraud Guarantee victims did no due diligence), Parnas outlines the evidence that he was prosecuted to shut him up. The Dowd actions are central to that.

The Government argues that, since Parnas was not yet attempting to cooperate with Congress at the time he was arrested, his selective prosecution claim is without merit. However, by the time of Parnas and Fruman’s arrest, Parnas had received a demand letter seeking evidence from the House Intelligence Committee, and been referred by Giuliani and Toensing to Attorney John Dowd—who had previously represented former President Trump. Attorney Dowd then secured a conflict waiver from Trump—who claimed not to know Parnas—by e-mail through the President’s chief impeachment counsel, Jay Sekulow. Next, Dowd met with Parnas and took custody of materials that he believed were responsive to Parnas’ demand letter. Then, Dowd informed the Intelligence Committee that Parnas would not be appearing as requested, and the evening before Parnas and Fruman were arrested wrote an e-mail to Giuliani, Jay Sekulow, Toensing, and others assuring that Parnas and Fruman would not be appearing to give a deposition or evidence against the former President. Giuliani then backed out of a planned trip to Vienna with Parnas and Fruman, and they were arrested as they boarded their flight. The following day, then-Attorney General William P. Barr made a “routine” visit to the SDNY, and, in the following months, sought the removal of SDNY U.S. Attorney Geoffrey Berman under still-undisclosed circumstances that may well have related to prosecutorial decisions made in Parnas and his co-defendants’ case.

Update: Oetken has indeed appointed Jones.

76 replies
  1. Alan says:

    I don’t remember these details off the top of my head–

    Who was the target(s) of the investigation in the Cohen search warrants, the attorney or his client(s)? And who are the targets of the investigations in the Giuliani and Toensing search warrants, the attorneys or their clients? Would that make any difference in what a filter team would release, or what a Special Master would release?

  2. JVO says:

    I’m pretty sure Individual-1 is completely unconcerned with FrudyG going through some things because he knows it will never cause him any issue. It didn’t happen with Cohen and it won’t happen with FrudyG.

  3. Dave_MB says:

    In other words, based on their rules, the SDNY taint team can’t pass it along to the SDNY investigative team if it even has a whiff of attorney/client privilege, even if it’s obviously evidence of criminal activity.

    But the special master Barbara Jones doesn’t have the same rule restrictions of the SDNY taint team and can pass all those dubious emails to the SDNY investigative team. Sweetness.

    It’s very kind of Rudy and Victoria to willingly provide that information to SDNY by consent. Good thing they’re both lawyers.

      • Cate E. says:

        You are amazing and have become my 1st stop daily reading with my morning coffee.

        Every single journalist covering legal news should make EmptyWheel mandatory reading too BEFORE they write their scoops. So many journos write their pieces in a vacuum- as if nothing happened before the instant thing.

        Thank you for everything you do!

      • timbo says:

        Hmm. If SDNY taint team won’t even look at something if it has a whiff of attorney-client privilege, then one can definitely see a weak point in federal corruption efforts involving folks who use attorneys for furthering criminal conspiracies…

    • bmaz says:

      Rudy may think his old colleagues at Bracewell will see to it he gets a break, but he should be terrified as to what Jones did in Cohen. And Bracewell may be very desirous of exhibiting large distance from Rudy. He is not someone you, as a law firm, want to be associated with at this point.

      • Raven Eye says:

        Gawd. Not only does Rudy carve the word “TOXIC” in granite, he then goes on to fill in the letters with gold leaf.

        • bmaz says:

          As a partner in an AV rated law firm, and I’ve been one previously, I’d want zero to do with Rudy. Toxic is the right word.

            • John Lehman says:

              Confrontation and rehab….’hello, name’s Rudy and I’m an ……..’
              Who’s going to confront him?
              Who’ll ‘bell the cat?’

              At least if it’s true..the “alcohol problem”
              …there’s room for empathy…he doesn’t belong in government practice.

              • John Lehman says:

                He’d have to hit rock bottom…
                perhaps prison would be the best thing to happen to him.

      • timbo says:

        On the other hand, Jones might owe him a solid, correct? Of course, it’s more likely that Jones owes Rudy nothing and is tired of Rudy or something. I do think it’s odd that they would pick someone who may not be that far removed from Rudy to do this though. Did they never work on any cases or with clients together then? On the otherhand, maybe Jones is squeaky clean…which one would hope, of course!

  4. pseudonymous in nc says:

    There’s something very fitting — in all senses of “fitting” — about the direct line from Kimba Wood’s ruling in the Cohen case. There’s a less direct line back to Beryl Howell’s ruling on the crime-fraud exception in the Manafort investigation, in part because that was about compelling GJ testimony from someone who wasn’t in legal jeopardy. I imagine it’s going to come into the picture, and I guess it would free up Parnas and Fruman to testify about things where their “lawyers” claim privilege.

    • ducktree says:

      In all matters of privilege (attorney-client, doctor-patient, etc.), the privilege is held (and can be waived) by the client or patient, not the attorney or doctor.

  5. Dutch Louis says:

    So either Guiliani did not commit a crime or he thinks Barbara Jones will keep it a secret or he is a fool.

  6. Ebenezer Scrooge says:

    I was a business lawyer, not a criminal lawyer. So I’m probably wrong. But I don’t believe that crime-fraud communications are completely off-limits for the prosecution if they are so identified by a taint team. Maybe they have to be vetted by a judge first, possibly in an adversarial process? But I would think that the prosecution would eventually be entitled to them.

    • emptywheel says:

      They presumably could have gone to a judge directly to ask for them. By getting Jones involved, she makes the decision for them. As they said repeatedly, she gives it the appearance of fairness. But I’m sure this is why they wanted her.

  7. subtropolis says:

    What an exceptional self-own. Not that it’s terribly surprising, given who we’re talking about. (Who has, “Rudy butt-dials the prosecutor and is overheard copping to crimes” on their bingo card?) I’m really looking forward to seeing what SDNY uncovers. I’m very much hoping that he’s left evidence of crimes involving his bogus security consultancy, as well. Or, anything else, for that matter. I’m convinced that he’s been dirty for decades.

    I’m curious as to why DiGenova wasn’t targeted. Both he and Toensing were involved, after all. It suggests to me that prosecutors are looking for something very specific, something that they are confident can be found on her device.

    • jeco30 says:

      Maybe Joe D flipped already! I always thought VicToe was smarter than these dopes but she’s really old too and might have lost her edge.

      I bet Rudy left tons of E-evidence of really blatant criminality, he’s become a poor lost soul

    • emptywheel says:

      Keep in mind they were with Cohen, too, because they knew of the hush payments, and they knew what Avenatti had sent.

      Here they’ve had Parnas kibbitzing.

  8. Tracy Lynn says:

    This post is terrific. I especially like the way you spelled it out so that non lawyers like me really get the essence of the story. Kudos!

  9. Dave_MB says:

    The other thing that will be interesting to see is how all these ‘privilege’ claims unwind. Giuliani says nothing can be looked at because he was working for Trump and all the work is privileged. Of course he also says that he can’t be lobbying because he included a clause in his contract that he wasn’t lobbying.

    But Parnas and Fruman were working for him and they’re covered under his privilege and they and Rudy were represented by and working for Victoria Toensing and Joe DiGenova so they’re covered under double privilege there.

    According to Rudy, there’s such a web of privilege that no one can look at anything that anyone in his orbit does.

    Although there’s no such thing as a web of privilege anything more than there’s ‘absolute immunity’ that Trump was claiming. I don’t think that Rudy being such a bad lawyer, that he didn’t clearly delineate what client he was working for, the scope of employment and get any privilege waivers for other people that were around, don’t make a clusterf@ck a web of privilege.

    Privilege is much narrower than he’s claiming and the client has to claim the privilege, not the attorney. A third person being in the room destroys privilege. I’m pretty certain all of that will unravel, but it will be interesting to see *how* it will unravel.

      • blueedredcounty says:

        I love the way all four legs of the horse are sticking straight up in the air in the background during the next-day scene, and how it ends with the chain saw being started. The absurdity builds through the entire scene, no subtlety required.

        • John Lehman says:

          “Animal House”
          Oregon’s second most famous movie…
          anyone from Eugene?
          …most famous?

          “One Flew Over the Cuckoo’s Nest” of course.

          Who can forget Will Sampson, after mercifully smothering a lobotomized Jack Nicholson, walking with a drum beat,

          singing-saw duet background, into the early morning Oregon wilderness.

              • pasha says:

                thanks for that link, just finished it, well worth the read! hunter thompson’s insights are refreshing. yet, somehow, in discussing the sixties, hippies, and the New Left, he made no mention of the vietnam war, which was pivotal to all three. i wonder why?

                • John Lehman says:

                  Hunter didn’t directly mention Viet Nam at all but he did write about historian Arnold Toybee’s sympathetic view of the Hippies and the “War poisoned atmosphere of the 1960s”

                  “Toynbee never really endorsed the hippies; he explained his affinity in the longer focus of history. If the human race is to survive, he said, the ethical, moral, and social habits of the world must change: The emphasis must switch from nationalism to mankind. And Toynbee saw in the hippies a hopeful resurgence of the basic humanitarian values that were beginning to seem to him and other long-range thinkers like a tragically lost cause in the war-poisoned atmosphere of the 1960’s. He was not quite sure what the hippies really stood for, but since they were against the same things he was against (war, violence, and dehumanized profiteering), he was naturally on their side, and vice versa.”

          • Ginevra diBenci says:

            Not Eugene, but my mom lived in Springfield for ten glorious years–meaning my sisters and I got a taste of that magical region visiting her. Mom was a landscape painter, so I live with images of the Sisters range in their haunting beauty. It made perfect sense when my family got addicted to SM Stirling’s books set in that area; it was their way of traveling back.

            • John Lehman says:

              Wife and I just joined a Willamette Valley plein air painting group,”Vistas and Vineyards”. It’ll be a welcoming relief painting outside Portland once and a while.

              The Three Sisters and Mt. Bachelor…
              We used to have a place in Bend.

  10. Silly but True says:

    In related news, after being admonished by Manhattan US Att’y for gross abuse of her official power, the Manafort/Butina SARS leaker Natalie Edwards, the US Treasury employee who leaked the Suspicious Action reports to Buzzfeed, was sentenced to 6 months in federal prison + 3 years supervised release.

    • subtropolis says:

      Something I’d only just learned upon reading about her sentencing is that she’s apparently a Trump whacko.

      • subtropolis says:

        Sorry, don’t know how to blockquote on this site.

        — —
        Prosecutors claim that Edwards leaked the files to advance her “own political agenda, which included disrupting or distracting from the investigation of Special Counsel Robert S. Mueller III,” allegedly opining in one private message that the special counsel “needs to go down too.”

        A Twitter account attributed to Edwards in the government’s memo shows a hodgepodge of far-right conspiracy theories and causes, including pro-Trump memes, criticism of COVID-19 mask restrictions, and a retweet of a call by Rep. Marjorie Taylor Greene (R-Ga.) to impeach President Joe Biden—for reasons unknown.
        — —

        Heh, there, I assisted with the editing. But, yes, that has been lurking for a while. Leakers come in all shapes, forms and beliefs. Few are particularly protected. Edwards really did accomplish some good though. /s/ bmaz

        • P J Evans says:

          Blockquote HTML is < blockquote > text < /blockquote > [remove spaces]
          With code in place

          This text is inside a blockquote.

  11. Jenny says:

    Excellent post. Thank you Dr. Marcy.
    Getting crowded with lots of cooks in the same kitchen.

  12. greenbird says:

    thank you, marcy, for saving the very best for the very last in this post.
    i feel thoroughly rewarded.

  13. Eureka says:

    Dowdy comic sans comedy, who’s crying now!

    ABC News with a couple of items:

    John Santucci: “SCOOP – @ABC News has learned Manhattan DA brought Trump Organization controller [Jeff McConney] to testify before special grand jury – story w/ @AaronKatersky [link]”
    2:38 PM · Jun 4, 2021

    They’re also reporting that two hospitals serving The Villages are hit by ransomware attacks, functioning on paper and pen.

    • P J Evans says:

      I know that the hospital I went to has paper records for patients, as well as computer. (It was a one-inch stack for me, when I saw it.)

    • JohnJ says:

      A few years ago I was checked into the hospital for a non-elective surgery and the computers went completely down. With all the drug and treatment safety protocols (you are asked your name and date of birth every time you talk to someone). everyone walked around with a computer and did nothing without using it first. I thought they would be at a standstill.

      It was incredible, they announced they were on a paper protocol and the whole hospital shifted to a dead tree operation. Very efficient. I asked a nurse, she said they actually practiced for this situation a lot.

      I could tell it increased the poor staff’s workload to insane levels, but they never hesitated, just kept going.

      In my decades of working I have never seen an organization able to do anything like that.

      • Savage Librarian says:

        Power failures and computer disruption happens often enough where I live (although not too frequently) that the public library has an item on its supply requisition list to help deal with it. They have a specially designed form to notate the various lengthy numbers associated with customer library cards and library materials. It helps to reduce errors when staff does the data entry later.

        Clerical, associate, and librarian staff are often so familiar with library classification systems and items on the shelves that they can find materials even when computers are not working. One reason they know how to do this is because of an arduous task called “shelf reading” which is done to make sure items are where they belong.

  14. klynn says:

    “Attorney Dowd then secured a conflict waiver from Trump—who claimed not to know Parnas—by e-mail through the President’s chief impeachment counsel, Jay Sekulow. “

    This may be a question with an obvious answer:

    How does the conflict waiver and claim to not know Parnas even hold up after Parnas and Fruman released videos of their attending meetings with Trump at Mara Largo?

    • klynn says:

      What happened with everything Dowd obtained from Fruman and Parnas? And isn’t your update paragraph pretty much outlining obstruction by Trump, Dowd and everyone on the “will not be appearing” email list?

  15. The Old Redneck says:

    Rudy has turned into a comedic tragedy. But I assume his lawyers are competent and would not just blunder into something like this. Either they’re really confident that there’s no crime-fraud communications, or they have that delusional big-shot lawyer hubris that makes them think everyone will protect them: I mean . . .Barbara Jones, she’s one of us, right?

Comments are closed.