Rudy’s Seized Devices Were More Useful for Investigating January 6 than Marie Yovanovitch’s Firing

On April 28, 2021, the FBI seized up to 18 devices from Rudy Giuliani. On Tuesday, DOJ unsealed the affidavit behind that seizure.

The affidavit, read in conjunction with Barbara Jones’ Special Master reports, Rudy’s privilege log from the Ruby Freeman lawsuit, and a filing he submitted in that suit provide abundant evidence that the devices FBI seized on April 28, 2021 were more useful for investigating January 6 than any suspected FARA violations involved in the firing of Marie Yovanovitch.

And this goes well beyond Robert Costello’s claim that a number of the devices seized from Rudy were corrupted.

The affidavit, as written, was narrow: it only covered FARA violations tied to the role of Yuriy Lutsenko and other Ukranians in the firing of Ambassador Yovanovitch in spring 2019. While there is evidence cited in the affidavit from a broad period of time (for example, describing Rudy’s public admissions that he did certain things in early 2019 later that year), the last overt act described in the affidavit is of someone — probably Victoria Toensing — texting Rudy on May 9, 2019, complaining that people were asking about whether she had registered under FARA and denying that she had a client.

Remarkably, then, the affidavit asked for — and Judge Paul Oetken authorized — the authority to seize “any and all” devices at Rudy’s office and home almost two years after that last overt act.

Judge Oetken authorized that search and seizure even though one of the phones described in the affidavit — an Apple iPhone X that Rudy first started using on January 20, 2021 — could not possibly have been used in the suspected crime described in the affidavit. And three more of the devices described in it, including another iPhone, were only put in use later in 2019.

I’ve long argued that by September 2021, DOJ at least contemplated obtaining other warrants to access that content (because SDNY successfully argued to do the privilege review on all content that post-dated January 1, 2018). But given the scope of those devices, it looks likely that there was at least one other affidavit presented to Oetken in April 2021, one that would justify seizing those later devices.

This table shows (on the vertical axis) the devices that Rudy says were seized and (on the horizontal axis) the devices that FBI thought they’d find.

While Rudy’s own description of these devices (including the model number of the MacBook used in planning January 6, here listed as A22251) is as unreliable as everything else about him, the FBI didn’t find the two iPhone Xes — one used between January 8, 2018 and August 13, 2019, the other used between April 5 2018 and August 27, 2019, both marked in yellow above — that would have been Rudy’s primary phones during the events described in the affidavit.

Just three devices — two iPads and one iPhone 11 — clearly match the description of what the FBI expected to find.

All of them were, according to Rudy’s description (marked in the vertical “January 6 column”), among those used in planning January 6.

Whichever iPhone 11 they did find is almost certainly device that Special Master Jones labeled as device 1B05, the privilege review of which she described this way:

I next assigned for review the chats and messages that post-dated January 1, 2018 on Device 1B05, which is a cell phone. There were originally 25,481 such items, which later increased to 25,629 after a technical issue involving document attachments was identified. An initial release of non-designated items was made to the Government’s investigative team on November 11, 2021.1

Of the total documents assigned for review, Mr. Giuliani designated 96 items as privileged and/or highly personal. Of those 96 designated items, I agreed that 40 were privileged, Mr. Giuliani’s counsel withdrew the privilege designation over 19, and I found that 37 were not privileged. I shared these determinations with Mr. Giuliani’s counsel, and they indicated that they would not challenge my determination that the 37 items are not privileged. The 40 privileged documents have been withheld from the Government’s investigative team and the remaining 56 were released on January 19, 2022.

1 Additional non-designated items were released on January 19, 2022.

Those 25,000 chats were easily the most voluminous content turned over from any one device to the FBI. Of all the chats that Rudy attempted to withhold from that phone, he ultimately only succeeded in withholding 40 items. 40 chats or texts out of 25,000 total.

262 items in Rudy’s privilege log come from that phone. Another 127 come from a device, 1B09, also used to text about January 6 (including with Mark Meadows), which — given the date scope — must have been among the first devices Jones reviewed. That’s one possible source of a Ken Chesebro document included in the indictment but not identified in the January 6 Report.

And while Rudy withheld those documents from Ruby Freeman, since Jones only permitted Rudy to withhold 43 items total from DOJ, those must have been deemed non-privileged in the Special Master review. (I’ve noted before that there are easily 40 items that clearly relate to Rudy’s own lawyers.)

They were all turned over to DOJ, for use with whatever investigative teams had obtained warrants to access them, no later than January 21, 2022.

This is one thing Rudy accomplished by defaulting on discovery: Withholding from Ruby Freeman, and therefore from a public trial that would precede Republican primaries, documents that were turned over to DOJ in January 2022.

By April 2021 when — using warrants approved on Lisa Monaco’s first day on the job, but nevertheless a year after Bill Barr started obstructing this investigation — the FBI came looking for devices involved in Rudy’s suspected FARA violations tied to getting Marie Yovanovitch, they didn’t find the devices he would have been using at the time.

They did, however, find three devices on which Rudy planned January 6. And because of the way DOJ did the privilege review on those devices, those records would have been made available to any investigators with a lawful warrant no later than January 21, 2022.

39 replies
  1. EW Moderation Team says:

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  2. Peterr says:

    Judge Oetken authorized that search and seizure even though one of the phones described in the affidavit — an Apple iPhone X that Rudy first started using on January 20, 2021 — could not possibly have been used in the suspected crime described in the affidavit. And three more of the devices described in it, including another iPhone, were only put in use later in 2019.

    That phone might not have been *used* in the suspected crime, but it still could have evidence relevant to the crime. I recently purchased a new phone and migrated old messages and photos over to it. If Rudy did the same, it would make sense to seize the newer phones as well as the old ones.

    • Quake888 says:

      Yes, if his old phone was backed up to the cloud it would be normal to migrate everything to the new phone. In fact it would be almost impossible to migrate only some of it.

    • harpie says:

      That’s an interesting date for Rudy to start using a new phone.
      Maybe he felt he needed to make a fresh start.

    • Ginevra diBenci says:

      That phone represents several oddities. First to jump out at me: 20 January 2021 was Joe Biden’s inauguration day, backed with Donald Trump’s sulking off to MAL. Maybe this was a coincidence (new administration/new iPhone), but I find that hard to believe given Rudy.

      Second, the affidavit shows that Giuliani only used this phone for three weeks, until 11 February 2021. This would reinforce Peterr’s suggestion that it might have stored prior content, if only for a short time.

      Rudy Giuliani and Hunter Biden astonish me with their capacity to procure and seemingly burn through devices. My iPhone 5S (bought in July 2017 at the Ann Arbor AT&T store) is finally showing its age, but the prospect of replacing it fills me with irrational dread. Same with the cheap little PC I’m typing on–I hate the feeling of divorcing my own past.

      • emptywheel says:

        That February date only represents the date through which they knew he was using the phone. It likely represents the date FBI got subscriber records for the phone, not any indication that he stopped using it.

      • Harry Eagar says:

        My thought, too. Apple forces me to abandon serviceable phones by withholding support. But the hardware lasts forever.

    • CoffaeBreak says:

      I echo Peterr’s comment that Apple data is as a default migrated to a new device if the user logs in with the Apple associated username if the user chooses to migrate the photos and other documents/apps/data associated with the old device. If the user accesses iCloud for files, that specific data may be migrated even if the user chooses not to do the migration depending upon which option the user selects when accessing the cloud. Most users choose to migrate, and if not perhaps the new device would be slated for “other” means.

    • obsessed says:

      >I recently purchased a new phone and migrated old messages and photos over to it.

      Exactly! Since well before 2021, every time I’ve switched to a new phone, it’s been seamless (and I don’t even intentionally allow any cloud storage – it just goes old-phone-to-new-phone). The new one has everything that was on the previous one. Flash storage keeps getting bigger and cheaper so your entire life history always fits on a small portion of the new device. On another topic, does anyone know if Rudy’s almost exclusive use of Apple devices had any bearing on the recovery attempts?

  3. ApacheTrout says:

    Every time I see Victoria Toensing’s name, I think of her son, Brady Toensing and his work in the DOJ. Specifically, I wonder if his cell number or at least an 802 area code number pops up in the list of Rudy’s calls (received, sent, or missed.)

    • ernesto1581 says:

      Speaking of 802 area code:

      Pre-Bruen, in 2018, Vermont Federation of Sportsmen’s Clubs retained Brady Toensing via Cooper & Kirk to fight a newly-signed state law banning gun stocks & high-capacity magazines.
      Post-Bruen, 12/18/23, Toensing represented that group in US District Court in Burlington in a challenge to both the high-capacity ban and a mandatory 72-hour waiting period on purchase.

      • ernesto1581 says:

        sorry — wrong term, “gun stocks.” it’s called a “switch,” I believe, which tells you how much I know about after-market fiddling with single-shot firearms.
        I’ll stick with steelhead flies.

  4. Sussex Trafalgar says:

    Excellent point! Brady Toensing, Victoria Toensing, Joe diGenova, Rudy Guiliani, Dmytro Firtash, Oleg Deripaska and Semion Mogilevich are paid players on Team Putin’s Russian/Ukrainian mafia.

  5. Frank Probst says:

    The Ambassador Yovanovitch smear campaign has always struck me as one of the best examples of “The cruelty is the point.” Trump could have simply recalled her to the US and replaced her with somebody else. He didn’t need to give a reason.

    Instead, there was an elaborate campaign to destroy her reputation that got so nasty that one of Yovanovitch’s colleagues called her at one point and advised her to get on the first plane home, because she may have been in real danger of physical harm.

    Why bother? When her boss was later questioned by Congress (as part of his confirmation hearings for a new position he was taking), he said he thought Yovanovitch was doing a great job, but he sent her packing anyway. When asked why, he just said that she had lost the confidence of the President. It took him under 30 seconds to explain. So why was Rudy wasting his time with this?

    (It’s a semi-rhetorical question. Part of the answer is that she was a woman who was good at her job, and there was an almost knee-jerk necessity to smear her reputation because of it. Rudy, like many other members of Trump’s inner circle, seems to have an almost pathological need to torment professional women.)

    • Rayne says:

      While Team Trump definitely engaged with pleasure in cruelty toward Yovanovitch — and I’m sure they were also egged on by Putin or his minions because payback — there was another reason for the character assassination.

      What is an assassination, after all? The excision of the target, its destruction. Yovanovitch was too good at her job, too competent, her personal cred too strong. They needed to destroy her credibility. This isn’t simply knee-jerk misogyny or reflexive cruelty but a strategic aim: they needed to crush what could come back and bite them.

      • Brad Cole says:

        Because we’ve had a few Bush-Cheney-ites turn anti Trump, we tend to overlook the connections for these holy warriors. Who were probably fighting the last war, afraid of another Wilson-Plame flareup, exposing their deceits and treasonous alliances.

    • emptywheel says:

      Russia used corruption as a tool to control Ukraine. It then adopted that method to the US and EU. For example, the people who pushed through Brexit, especially BoJo, were easy to buy. Orbán was easy to buy. Trump was easy to buy. Then in attempting to deal with the aftermath, it makes the institutions around them easy to buy. For example, the EU just paid Hungary a bunch of €€ they were withholding in an attempt to get him to reverse his anti-democratic policies in an effort to free up support for Ukraine (which largely failed). Republicans have been totally corrupted because Trump had a hold, often based on threats, against them.

      Slowly, one by one, Russia intends to corrupt everything that stands for Western values.

      Yovanovitch was a threefer. One, she was legitimately a force to de-corrupt Ukraine. Two, she was wrapped up in a quid pro quo, Trump doubling down on cheating to win. Three, Republicans sacrificed her to support Trump. It corrupted the whole country!

      All just by dangling a few $$ million in front of Rudy and a way to cheat in front of Trump.

      • LaMissy! says:

        “Slowly, one by one, Russia intends to corrupt everything that stands for Western values.”

        This is key. Only when we pull back and examine the fuller picture does the danger become apparent. Americans are always so busy navel gazing that it comes as a revelation to see ourselves as yet another, though outsized, cog in Putin’s objective.

        I’d add that we can see the damage wrought when a big domino falls. We had Bolsonaro’s engineered attack on Brasil’s Congress; yesterday Poland’s ousted Law and Justice Party resisted efforts to re-staff its public radio station with members of Tusk’s party. After all, if the US no longer plays by the rules of democracy, why should less significant players on the world stage? Maybe it’s all up for grabs.

      • Fraud Guy says:

        I believe I read Adam Silverman at Balloon Juice noting that Putin “declared” war on the US back in the mid-aughts, and has been running corruption and disinformation campaigns against us and our allies constantly since then. If a petro-state like Russia has a few billion to spend each year, and a Congressman, or news purveyor, only needs a few million to be brought in to their fold, then Putin’s ROI has been massive.

        • RipNoLonger says:

          It probably only takes $10,000 to catch a congressperson. Once you’ve filmed the transaction, the costs are just mailing monthly blackmail notes. Fox and the others might take more ongoing payments.

      • Ewan Woodsend says:

        This is too much of a digression from the topic of the post, but I think it is inaccurate w.r.t. Boris Johnson. As a truly entitled person from birth, he feels no obligation whatsoever to payback anyone that gives him a leg up. He is much less loyal than Trump with his benefactors, and that says something.

        • LordAvebury says:

          It’s true that Boris Johnson feels no long-term obligation to pay back anything, but he’s incredibly easily swayed on a transaction-by-transaction basis. This meant that it was easy to use him to place resources in various parts of the political and social system. I recommend Patrick Keefe’s piece in the New Yorker: “How Putin’s Oligarchs Bought London”.

        • earlofhuntingdon says:

          The City is the world’s biggest money launderer. The London property market has been the go-to place to park and launder money for generations. Both circumstances predate Putin.

      • OnWatch45 says:

        Emptywheel’s little paragraph sums up the USA since 9/11 when binLaden said he didn’t need to physically attack again, because America will forget their values and destroy themselves from within….Putin just jumped on the bandwagon and pumped it..

    • zscoreUSA says:

      Pete Sessions meets with Parnas on 5/9/18, and the same day writes a letter to Pompeo to get rid of Yovanovitch because of claims by anonymous Congressional colleagues.

      Was there a plan at some point to make Sessions Yovanovitch’s replacement as Ambassador?

      • vigetnovus says:

        Ah yes, Pete Sessions. Son of the late William Sessions, who was a District Judge in the Western District of TX at the same time Sidney Powell was cutting her teeth as a AUSA in the Western District. Did I mention he was fired by Bill Clinton in 1993?

  6. timbozone says:

    Just a technical note here on transferring data from older iDevices to newer iDevices. You do not need to backup data to the cloud or two a computer to move the entire data and login credentials, etc, between phones. Apple credentials can be moved simply by putting the phones next to each other and authorizing both phones so that all the data and configuration information, etc, is transferred to the newer phone. Some third party credentials may not be transferred via this method though, although many or all passwords saved in Apple’s iOS keychain could be backed up to an iCloud keychain and then brought backj down onto the newer device later.

  7. Sussex Trafalgar says:

    And William Sessions was Semion Mogilevich’s USA attorney until Willam Sessions passed away in or about 2020. Mogilevich was on the FBI’s Ten Most Wanted Listed for multiple years for his criminal activity in New York State.

    The business and personal relationships between Semion Mogilevich, Vincent “The Chin” Gigante, Rudy Guiliani, William Sessions, Pete Sessions, Oleg Deripaska, Charles McGonigal and Roman Abramovich are important in understanding how extensive Putin’s reach is into the American political and legal systems.

  8. P’villain says:

    I truly appreciate this post and the comments, but it hurts to read about it, too. Yovanovitch’s impeachment testimony was so powerful and uplifting. I have lost so much hope since then.

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