How SDNY Came to Treat James O’Keefe Better than Former SDNY US Attorney Rudy Giuliani

It has been a week since Judge Analisa Torres appointed Barbara Jones as Special Master to review materials seized from James O’Keefe and two other Project Veritas figures, and prosecutors from the Southern District of New York have not made any public complaint to the terms of her order. So I’d like to emphasize what SDNY found tolerable in the Project Veritas matter as compared to the search of Rudy Giuliani’s phone.

These are the instructions Judge Torres issued for the Special Master review of Project Veritas’ devices.

  1. The Government shall complete extraction of the materials from Petitioners’ devices. The Government shall provide the extracted materials to the Special Master.
  2. The Special Master shall expeditiously conduct an initial review of the extracted materials to determine what materials are responsive to the search warrants. To assist with the Special Master’s review, the Government shall provide the Special Master, on an ex parte basis, with a copy of the search warrants executed on Petitioners, the underlying application materials for those search warrants, and any other information that will assist the Special Master in conducting her review. If the Special Master determines that the efficient administration of her duties requires the assistance of additional professionals, support staff, or expert consultants, she may submit a work proposal to the parties, who will have five business days to submit comments, after which time the Special Master may then submit the proposal to the Court for consideration.
  3. Materials deemed to be responsive to the search warrants shall be provided by the Special Master to the filter team, which shall be walled off from the investigative team working on matters related to the investigation that is the subject of the search warrants or any investigation related to Petitioners.
  4. The filter team shall conduct a review of the responsive materials to determine if any should be withheld from the investigative team on any grounds—including grounds related to any First Amendment concerns, journalistic privileges, and attorney-client privileges.
  5. After the filter team conducts its review, Petitioners shall review the materials slated to be released to the investigative team and raise any objections. The Special Master shall rule on any objections and provide the proper materials to the investigative team. [my emphasis]

Effectively, SDNY will provide Jones all the contents of O’Keefe’s phones. She will then do a responsiveness review to identify the material responsive to the warrants targeting O’Keefe. That material will then go to an FBI filter team, which will review it for privilege. After that, PV will get to review the materials to raise objections (with no limit on the objections identified, though presumably these would be based on privilege). Jones will then rule on those objections and provide whatever she deems appropriate to the investigators.

That approach offers PV far more protection than the President’s former lawyer Rudy Giuliani is getting. In the Special Master review of materials seized from the former SDNY US Attorney, Judge Paul Oetken ordered Jones to conduct an initial privilege review.

The Special Master shall render decisions regarding privilege issues relating to the materials seized in the execution of certain search warrants dated April 21, 2021, and April 28, 2021, and executed on April 28, 2021 (the “Seized Materials”). The specific duties of the Special Master are as follows and shall include all powers necessary to carry out these duties:

a. Conducting an initial privilege review of the Seized Materials and adjudicating privilege disputes between the parties;

The parties then had a debate about the sheer scope of the seized materials. As part of that, SDNY agreed to limit the temporal range of Jones’ review to documents that date between January 1, 2018 and the date of execution in April 2021. But SDNY argued that there’s no basis for a Special Master to conduct a responsiveness review.

The Letters conflate the scope of the Special Master’s review for privileged material with the scope of the Government’s eventual review for material responsive to the Warrants. The Letters present extensive argument concerning only the latter, yet seek relief concerning the former. That is, the Letters contend that the Government’s search for responsive materials must conform to certain limits, then leap from that conclusion to request limits on the Special Master’s initial screening for privileged items. (See Giuliani Let. 4-24 (arguing Government can review only materials dated August 1, 2018 to December 31, 2019); id. at 1, 25 (requesting order that Special Master review only materials from the same period)). The Letters thus ask the Special Master to conduct a responsiveness review: To identify and withhold from Government investigators documents that are in no way privileged, based on a determination that they fall outside the scope of the Warrants. Neither the Warrants, nor this Court’s order appointing the Special Master, contemplate that an arm of the Court, rather than Government investigators, would conduct such a review. (See, e.g., Dkt. 25 (order appointing Special Master)). The Letters’ attempt to limit the materials to which investigators will have access thus appears to be an attempt to relitigate Giuliani’s and Toensing’s meritless efforts to limit the search contemplated by the Warrants ex ante, which this Court already rejected. (See Dkt. 20 at 3-6 (Court rejecting motions for pre-charge (indeed, pre-search) suppression and return of property)). [my emphasis]

Ultimately, Judge Oetken agreed with SDNY, ruling — in an order that preceded Torres’ and therefore which SDNY could have pointed to as a precedent — that there is no legal authority mandating a Special Master review for responsiveness, rather than privilege.

Second, the warrants themselves do not contemplate that an arm of the Court, rather than Government investigators, would conduct a review of the warrant materials for responsiveness, nor is the Court aware of any legal authority mandating such review. To be sure, as the Government acknowledges, the warrants must be executed according to their terms. But the fact that the Court has appointed a Special Master for privilege review in this circumstance does not dictate that such review be expanded to review for responsiveness.

As Jones has made clear in one of her few public reports in the Rudy review thus far, for the files from this time period over which Rudy (or Victoria Toensing or Dmitry Firtash) don’t claim privilege, they’ll all go to the FBI.

These seven devices contain 2,226 items in total dated on or after January 1, 2018. Mr. Giuliani designated 3 items as privileged, and I am reserving decision on those 3 items. The remaining 2,223 items have been released to the Government.

From there, FBI (with no filter team) will do a responsiveness review for the Ukrainian foreign influence peddling investigation and for any other warrants DOJ has happened to obtain targeting Rudy’s phones.

A recent Oetken order makes clear that, eight months after the seizure of these files, we’ll soon see some privilege battles take place in semi-public form, with description of the content of the materials sealed, but not the basis for privilege claims. At this point in the Michael Cohen fight, Trump chose not to fight privilege claims on some crime-fraud excepted communications, most notably pertaining to his hush payments.

The effect of these two reviews will be dramatically different. In PV’s case, only those materials pertinent to the alleged theft of Ashley Biden’s diary will ever become available to the FBI, and even after the FBI filter team does a privilege review, PV will have an opportunity to argue for withholding that material from DOJ. While this process might result in slightly more materials being shared with investigators than might have happened in response to a subpoena (and would have had the effect of limiting any data destruction), it gives PV something close to an opportunity to suppress evidence pre-charge. The review will also ensure that DOJ does not obtain evidence that might otherwise implicate PV, such as the way it permits “donors” to influence the timing of particular “reporting” campaigns.

Whereas, as I’ve laid out before, DOJ will have the ability to obtain materials from Rudy responsive to the Lev Parnas-associated investigation, as well as anything that might be responsive to warrants investigating other crimes, including (but not limited to) his role in Trump’s obstruction of the Mueller investigation and his role in Trump’s attempted coup.

It’s not like SDNY — nicknamed “Sovereign District” for their aggressiveness — to cede a legal point without a fight. But here, having just prevailed on the principle that there’s no legal basis for a Special Master to conduct a responsiveness review, they let a decision stand ordering a Special Master to conduct a responsiveness review, and only after that, to review FBI’s own privilege determinations.

The two different approaches may reflect not so much legal principle, but the relative goals of the prosecutorial teams and/or DOJ’s priorities. PV got its surrogates in Congress — and even tried to solicit Democratic support — for its claims that its extortion-like behavior is a journalistic function. Effectively, accepting a Special Master responsiveness review resets this matter close to where it would have been if PV was genuinely accommodating the subpoena in good faith (as it wasn’t, before the seizure). It also may be the case, however, that SDNY has reason to know what they’re looking for are Signal or Telegram texts involving O’Keefe personally, with the expectation that they’ll get other responsive documents via the subpoena.

That SDNY was so willing to accept the PV result, though, highlights how aggressively they fought to defeat any responsiveness review with Rudy. Their argument against a Special Master review for responsiveness, with a subject whose files are among the most sensitive imaginable, is precisely what makes those materials available for other possible investigations. That was a fight that SDNY — and Merrick Garland’s DOJ — was willing to make, and a fight they won.

Somehow and for some reason, the President’s former lawyer is being treated less favorably by his former office than your garden variety rat-fucker. The reasons why that might be bear some consideration.

25 replies
  1. Ebenezer Scrooge says:

    IIRC, SDNY was called the “sovereign district” because it traditionally viewed “guidance” from central Justice as just that: guidance. Other US Attorneys’ offices viewed it as law. The Federal Reserve Bank of New York used to have a similar status within the Federal Reserve System, for similar reasons: size, technical competence, unique workload, and prestige.

    • Theodora30 says:

      I don’t think it is good for some offices, usually in NY, to function independently/defiantly. The NY FBI field office had/has (?) the same reputation for ignoring instructions from their superiors at the FBI and DOJ. That is why they were so willing to defy Comey and the FBI’s rules by making unauthorized leaks to the media in 2016 to hurt Hillary’s campaign in order to get their buddy Trump elected. The DOJ’s IG opened an investigation into those leakers but as far as I know they have never been disciplined, let alone fired like Peter Strozk was. All Strozk did was priavtely say negative things about Trump (and other candidates) but he never interfered in the election the way the NY agents did.
      The IG investigation into the FBI’s handling of their investigation of Hillary’s emails made it clear the reason Comey broke the rules to openly speak about her emails was he had intimidated by the NY office’s leaking. That the NY office was able to go rogue should have been a major story. I guess that the reason journalists refused to cover it they don’t want to anger good sources.

      • bmaz says:

        Think need to be careful as to the size of brush used to paint the FBI NYC field office on the Clinton leaks. That appears to have been mostly by a rogue sect within the office with residual loyalty to Rudy and Jim Kallstrom.

    • Peterr says:

      Former NY Fed President Tim Geithner would be very sad to see that you have used the past tense about the NY Fed. It is truly the most wonderful and benevolent place to be a banker, and far surpasses any of the other Fed banks. The meals you get in NY are surely better – lunch for lunch and dinner for dinner – than what you’d get in Minneapolis or Richmond. And don’t get him started on Broadway shows . . .

      C’mon: no one can do passive regulation better than the NY Fed. Just look at 2007-08 . . .


  2. cynthia kouril says:

    Apples and oranges. Rudy is being treated as a co-conspirator and has no journalistic privilege to assert. So, the “plain view” doctrine applies to the search of his devices. And it’s ony Atty-client privilege that must be screened for. PV is claiming to be a journalistic enterprise and is asserting that only information relative to the matters covered in the search warrant can be invaded. For SDNY to argue otherwise at this particular juncture, puts the cart before the horse. First they have to prove that PV is not a journalistic enterprise, then the privilege assertion dies on the vine.

    • emptywheel says:

      While I don’t disagree that this is a difference in their criminal exposure, how does that change the terms on which a Special Master can be appointed?

      • I Never Lie and am Always Right says:

        The scope of the potential privileges is legally significant. This also potentially sets a precedent for dealing with search warrants involving other “more established” journalistic enterprises, which have already weighed in with the Court on other issues.

        • timbo says:

          Did any other of these “more established” media enterprises weigh in on this particular appeal for a special master? Which ones?

    • bmaz says:

      “Claiming to be a journalistic enterprise”! It is all just that simple? Because “claiming” is doing beyond heavy lifting there. Wikileaks claims to still be a “journalistic enterprise”, do you think they really are at this point?? And, no, the government need not “prove” that Veritas is “not” a “journalistic enterprise, as there is no law nor rule of evidence demanding that.

    • Ravenclaw says:

      That is one possible explanation. In one sense, the more benign option. If the prosecutors are incensed that one of their own turned crook (at least, is strongly suspected of such) they might become more aggressive/vindictive. (Or, I suppose, if his tenure there left a bad taste – if his personality grated everyone – though that would not really be defensible.)

      The other explanation I think of immediately is that the potential crimes are so much more sweeping and dangerous in their implications. For all its evil ways, PV is just another shady player in the political arena (okay, masquerading as a journalistic enterprise). It poses no serious threat to the nation. But Rudy seems to have been involved in plots to subvert American foreign policy, disrupt free elections, and even violently to overthrow the Constitution. There is good reason to be aggressive in pursuit of evidence bearing on these matters.

    • timbo says:

      Well… there is the possibility that SDNY wanted to find out where some of its leaks were coming from over the years…

  3. joel fisher says:

    Also of interest to me is who’s paying Rudy’s lawyer(s). He tried to put the bite on the former, with, I understand, not much luck but if Rudy suddenly has a fleet of expensive legal talent, that would mean to cynical ‘ol me that he is sitting on a pile of info–something other than the Stop the Steal grift–that the Former doesn’t want out and about.

  4. My Uncle Fred says:

    Well, it could also be the difference in addressing a toady of HWWP (he who was prez) versus a toady of the BEA (broader elite aristocracy). It’s the later that really runs the country and old money has much more use for PV. PV can be redeployed to many causes and candidates, whereas Giuliani’s burnt his credibility to the ground and is no longer of use for future campaigns. But that’s just an opinion.

  5. Benton says:

    OT: Re. Department of Defense Cover-up?

    What would a cover-up look like? Perhaps a perfunctory investigation by the acting DoD IG, appointed by the very person standing to benefit from wrongdoing? As COL Matthews points out, “the report is replete with factual inaccuracies, discrepancies and faulty analysis.” (MMp3)

    Key investigative question: Why couldn’t the DC National Guard (DCNG) Quick Reaction Force (QRF) deploy to the Capitol when the first request was made by a DC official at 1:49 p.m.? (IGp49) What other purpose did the QRF have except to quickly react to civil disorder? As it happened, the DCNG only began to arrive after 5:00 p.m. (IGp61) Why doesn’t this critical failure receive thorough analysis?

    How would a determined inspector go about looking for premeditated wrongdoing by DoD leadership leading up to J6? First, the inspector could look at other cases where the DCNG was used in a similar role. Next, QRF restrictions and employment authorization requirements could be compared. Two potential events standout as candidates:

    1. Unrest between May 29, 2020 and June 7, 2020 resulting from the murder of George Floyd. DCNG troops are described as being deployed in the vicinity of Lafayette Square on June 1, but nothing is revealed on how their deployment was authorized, what restrictions they were under, or if a QRF was used. (IGp17)

    2. March on Washington anniversary on Aug 28, 2020. This event had the potential for unrest because of the recent police shooting of Jacob Blake and its proximity in time to Event 1. DCNG is described as assisting DC police with crowd management and traffic control points. This mission used 450 DCNG personnel (IGp18), while only 340 DCNG personnel were assigned to the initial J6 mission (IGp26). Missing are any more details.

    Yet, something very odd can be found in the report at this point. Consigned to a footnote for the second event is: “Although DCHSEMA did not request a QRF for the March on Washington anniversary, the DCNG mission analysis process identified a QRF, which the SecArmy approved.” (IGp18) That is it. Nothing more is mentioned about this QRF in the report. Is this a tell-tale sign of a biased investigation?

    Next, the inspector, armed with details about this QRF mission – plus any others not revealed – would ask former Secretary of Army McCarthy some hard questions.

    1: Did you add the following restriction to your Jan 5 letter to MG Walker: “I withhold authority to approve employment of the DCNG Quick Reaction Force (QRF) and will do so only as a last resort…”? (IGp116) Or, is COL Matthews correct in asserting that you didn’t know about this restriction before it was added? (MMp14)

    2: (Conditional) Why did you add this restriction for Jan 6 but did not find it necessary for the March on Washington QRF?

    3: (Conditional) What was your frame of mind when you added this restriction? Were you influenced by political considerations?

    Are we looking at discrepancies or a cover-up?

    • Peterr says:

      “Why couldn’t the DC National Guard (DCNG) Quick Reaction Force (QRF) deploy to the Capitol when the first request was made by a DC official at 1:49 p.m.?”

      Because the DCNG doesn’t take its orders from the DC Capitol Police.

      Overlapping jurisdictional issues are a huge deal in DC, between the DC Metro Police, Capitol Police, National Park Service Police, US Secret Service, and FBI, to say nothing of concerns by the military and intelligence community. The ONLY way it works is for folks to follow agreed-upon protocols, which includes not just who gives orders to whom but also who talks to whom.

      Yes, the request came, but it didn’t go (officially) to the DCNG. It went to the Secretary of Defense, who had to approve sending the NG. He dithered and delegated and that’s where the delay came from.

      • Benton says:

        Thank you for your comments. I think this line in a letter from SecDef Miller to SecArm McCarthy on Jan 4 will help clarify things:

        “You may employ the DCNG Quick Reaction Force (QRF) only as a last resort in response to a request from an appropriate civil authority. If the QRF is so employed, DCNG personnel will be clearly marked and/or distinguished from civilian law enforcement personnel, and you will notify me immediately upon your authorization.” (IGp113)

        The original Request for Assistance (RFA) from civil authorities came from Mayor Bowser and DCHSEMA Director Rodriguez on Dec 31. (IGp102,IGp103)

        At 2:19 p.m., Dr. Rodriguez called MG Walker and “requested that all DCNG personnel report immediately to the Capitol in support of the MPD.” (IGp52) At this point, MG Walker began the attempt to contact McCarthy.

        I agree that Chief of Police Sund didn’t have the authority to trigger the employment of the QRF. However, that helps bookend the timeline in regard to the key question.

        See this comment for additional background:

          • Benton says:

            I agree. I’m keying in on the assertion that the “concept of operation” (CONOP) requirement for QRF employment was unusual. In my posts, I write about “bureaucratic hurdles” or “restrictions” and include the CONOP requirement within that set.

            See MG Walker’s prepared testimony for Senate committees (linked below):

            “In addition, the Secretary of the Army’s memorandum to me required that a “concept of operation” (CONOP) be submitted to him before any employment of the QRF. I found that requirement to be unusual as was the requirement to seek approval to move Guardsmen supporting MPD to move from one traffic control point to another.”

            Also see his testimony beginning at 1:40 in the video linked below.

            The IG report acknowledges that they were aware of MG Walker’s statements. (IGp34) But, they don’t document whether they pursued validating his claim on way or another. In fact, the footnote quoted in my post indicates that they had collected relevant information, and possibly buried it. I find it difficult to believe that they just failed to understand its importance. The Commanding General of the DCNG makes a claim like this in his Senate testimony concerning an event of such importance, yet it gets largely washed from the report.

            Also, witnesses claimed that negative media fallout from the unrest early in June (Event 1) was a reason for the extra restrictions. This would be a problematic claim if the restrictions didn’t exist for the March on Washington anniversary (Event 2) or the July 4 celebrations when both of these events also occurred after Event 1.



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