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Rudy Giuliani Appears to be Claiming Privilege Over Hundreds of Items He Already Agreed Were Not

July 26, 2023/25 Comments/in 2020 Presidential Election, January 6 Insurrection /by emptywheel

Based on statements that Rudy Giuliani and his attorney Robert Costello have made in the Ruby Freeman suit, he should be claiming privilege over no more than 43 items total.

He is claiming privilege over around 400.

We can say that based on two claims, made in sworn declarations.

First, Rudy submitted this declaration stating that all his comms from the coup conspiracy would be in the materials archived by TrustPoint as part of the SDNY search of his devices.

Mind you, there’s a claim in that declaration that Costello’s declaration debunks — and it explains a lot about Rudy’s failure to provide discovery. Rudy claims that all his iCloud emails would be in the TrustPoint materials.

All of my [redacted]@icloud.com iCloud data would have also been included in the TrustPoint data because I synced my iCloud to my devices.

But Costello’s declaration reveals that prior to October 18, 2021, he had observed to the Special Master that many of the email files, “contain no ‘body’ text” and by October 18, 2021, he learned that the reason for that is that “this is the way the iPhone stores backup data.”

Rudy’s lawyer, at least, learned before this lawsuit was filed that the TrustPoint material wouldn’t have his emails intact. Nevertheless, Rudy claimed his emails would be available in the TrustPoint materials, and apparently never checked his existing iCloud, Gmail, and ProtonMail accounts for relevant emails.

Meanwhile Costello confirmed something still more damning: that ultimately he and Rudy never appealed any of the designations that the Special Master in that case, Barbara Jones, came to on his content.

Trustpoint would then send me sections of the electronic material, so that I could designate whatever communications I believed were covered by attorney client, work product, or executive privilege. Those identified communications would then be sent to Judge Jones for her ruling. If there was a dispute between Judge Jones and myself, the matter would be referred to Judge J. Paul Oetken, the sitting SDNY Judge who had authorized the search warrants. We never needed to have Judge Oetken resolve a dispute.

That’s important, because we know how many files, total, Barbara Jones ultimately deemed to be privileged: 43.

Remember: per Judge Paul Oetken’s order, this privilege review covered all material post-dating January 1, 2018, regardless of topic.

Here’s what Jones said about the results of her review in a January 22, 2022 filing (filed before this lawsuit moved towards discovery):

As indicated in my November 2, 2021 Report, I initially reserved decision on the first 3 items that were designated as privileged by Mr. Giuliani’s counsel. After further discussions regarding these items, I agree that they are privileged and should not be turned over to the Government’s investigative team.

B. Device 1B05 – Chats and Messages

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.

43 documents total, across Rudy’s 16 devices, were privileged. Most were on an iPhone referred to as 1B05.

Rudy actually used the device identifiers from the search in his privilege log. Most are from 1B05 — and the Bates numbers show that there were over 21,000 items on that phone.

Indeed, we can see that around 40 really are privileged — because they pertain to Rudy’s own representation by Joe Sibley (indeed, those appear to be the only emails that were preserved).

That says Rudy and Costello already agreed that all the rest of the things in this privilege log (save potentially 3 files) — around 220 of which are just from that one phone — are not privileged.

That is, if you put Costello’s declaration together with Rudy’s, it suggests that Rudy claimed, in the Ruby Freeman lawsuit, that hundreds of things were privileged when he and his attorney had already agreed, before this case moved towards discovery, they were not.

I emailed both Costello and Freeman’s attorney Michael Gottlieb to check whether I understand these details correctly and got no response from either.

“Nonzero:” On Evidence-Based Investigations and Rudy Giuliani’s Devices

June 26, 2023/42 Comments/in 2020 Presidential Election, January 6 Insurrection /by emptywheel

After the WaPo published its 8,000-word story purporting to describe the January 6 investigation, and after I pointed out key gaps and problems with it, Carol Leonnig reached out to me to find out why I found WaPo’s silence about Rudy Guiliani’s devices so problematic.

Even after my post, Leonnig still understood the exploitation of Rudy’s devices to be limited to the FARA investigation out of SDNY. “I hear you re search of Rudy phones but to be clear that is for probe of lobbying law violations – not a plan to look at Trump orbit plot to overturn elex results,” she described.

To be clear: Her understanding was correct with regards to the known warrant used to seize Rudy’s devices. It was badly wrong with regards to the process used to review them, something that has been public for a long time.

As I first laid out over 18 months ago, after seizing Rudy’s devices, SDNY successfully requested that the Special Master process review everything on Rudy’s devices between January 1, 2018 through the date of seizure, irrespective of scope:

April 21, 2021 (Lisa Monaco’s first day on the job): DOJ approved a warrant for Rudy’s devices in SDNY FARA investigation
April 29, 2021 (the day after seizure): Citing the Michael Cohen case, SDNY asked Judge Paul Oetken to appoint Special Master
August 18, 2021: Special Master Barbara Jones notices a dispute about the range of privilege review, sets schedule for briefing
September 3, 2021: SDNY generously offers to limit Special Master review to files post-dating January 1, 2018 through date of seizure
September 16, 2021: Judge Oetken rules that the Special Master shall review for privilege all content between January 1, 2018 and date of seizure

Oetken’s decision pertained to more than just timeline. It made clear that the government would conduct any responsiveness review.

First, this Court appointed the Special Master for the purposes of reviewing the materials for privilege, not for responsiveness. While a general exclusion [of material that pre-dated January 1, 2018] as proposed by the Government is appropriate, the imposition of detailed date restrictions or other responsiveness criteria would risk further delay in the review process.

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.

Once this Special Master privilege review finished, then, any content responsive to any probable cause warrant targeting those devices would be available to the government without further privilege review.

Note, when DOJ suggested Barbara Jones to serve as Special Master in Trump’s Florida Special Master matter last September, Trump raised a specific and secret objection to her, though he had raised no such objections after her review of Michael Cohen’s devices in 2018.

Based on that series of decisions — starting with a decision made on Lisa Monaco’s first day, followed by a successful argument that prosecutors, not a Special Master, would do any scope review for responsiveness with warrants (the reverse process as used for James O’Keefe’s phone) — DOJ guaranteed that the January 6 investigation could immediately access Rudy’s content, either based off a plain view discovery of evidence pertaining to a crime (which is how the investigation into Michael Cohen evolved from a FARA investigation to include the hush money payment that is the basis of Alvin Bragg’s indictment), or later warrants obtained as the January 6 investigation progressed. If DOJ obtained a new January 6 specific warrant, Rudy — and any journalists he wanted to complain to — would get no notice, because (as happened repeatedly in the Cohen investigation) the new warrant would be served internally.

DOJ secured the availability of Rudy’s content (pending a new warrant) by September 2021, before Matthew Graves was confirmed and before Thomas Windom was brought in to head up an investigation focusing on Trump’s people, personnel changes that WaPo claims drove the renewed focus on Trump.

In its 8,000-word piece, WaPo raised legitimate concerns about evidence being deleted as DOJ investigated. But within a week of Monaco’s start date, DOJ had preserved the content of Rudy’s devices and started a process that would eventually make it easier for January 6 investigators to access it.

To be sure, we don’t know when or how (via plain view or via a January 6 specific warrant) Rudy’s content was shared with January 6 investigators.

We do know that Special Master Jones prioritized the content on phones that were in current use in April 2021. The first 8 devices she reviewed all included content through seizure. This table shows all the content known to be seized by SDNY; the red rectangle shows the devices, clearly including Rudy’s main phone, Device 1B05, that were reviewed through seizure date.

And, to the limited extent that a sworn declaration from Rudy is reliable, we know that the devices Jones reviewed included all of Rudy’s January 6 content. According to a declaration Rudy submitted in the Ruby Freeman lawsuit, seven of those personal devices seized using a warrant obtained on Lisa Monaco’s first day included all the digital content pertaining to January 6 in his possession at the time.

Apple iPhone 11 ProMax

Apple MacBook Model A22251

Apple iPhone 11 Pro Max

Apple iPad Model: A1709

Apple iPad Model: A2013

Blackberry Model: RGVI6ILW

Apple iPad Model: A1395

[snip]

The TrustPoint One documents consist of all documents that were extracted from the electronic devices taken by the DOJ in April 2021 when the DOJ seized those devices.

The content from the first seven of devices Rudy was currently using was shared with SDNY by November 2, 2021, still before Graves was sworn in as US Attorney in DC. Jones started turning over content from what appears to be Rudy’s main phone on November 11, 2021, with the balance turned over on January 19, 2022.

Again, this information would have been turned over to SDNY, not DC USAO, and we don’t know when and via what means January 6 related content got passed on to DC. But whenever it was, it was available because of decisions made well before WaPo’s timeline, decisions that would have involved approval from people WaPo described as “slow” and “cautious.”

Whatever else it did, the way DOJ did the Special Master review of Rudy’s devices shaved nine months off any investigation pertaining to Trump’s personal lawyer, one of the most central players in Trump’s coup attempt, because whenever DC developed probable cause to access that content, the privilege review would already be done. By comparison, the privilege review for John Eastman and Jeffrey Clark’s content began on June 17, 2022, and NYT describes that privilege reviews of people like Mark Meadows and Cleta Mitchell started after July 2022.

One reason it is likely that Rudy’s content — and not just pressure generated in January 2022 from the January 6 Committee, as WaPo quotes an anonymous source claiming — drove the fake electors investigation is the focus of the investigation. The first fake elector warrants sent in May 2022 (not June, as WaPo implies) as well as those sent in June and November all included Victoria Toensing and Joe DiGenova. Rudy’s known interviews always list the couple as key members of his post-election team. But no one else seems to have cared or figured out what they did. After Rudy listed them in his January 6 interview, the Committee never once raised them again.

Q. Who was on your team at that point [November 5]?

A. You know, it was put out in a press release some days later. So it’s hard to know exactly who joined. Very early on, there was Jenna Ellis, Vicki Toensing, Joseph DiGenova, Boris Epshteyn. That was the main team. We were joined by Christian Bobb about 5 days later, and by — by Katherine Friess, maybe 3 or 4 days later.

So if you look at the list of the team — now, it took about — that was the original team, meaning in the first 3, 4, 5 days. Within about a week or two, I can give you all the names if you want them.

Q. Who else joined the team after that group you just mentioned, lawyers? I’m just talking about lawyers for the moment.

A. Just lawyers, okay. So Toensing, DiGenova, Bob[b], Friess, Ellis, Epshteyn.

Neither appears to have been interviewed; neither is mentioned in the final report. Nor did they get much focus in the investigation. Christina Bobb and Eric Herschmann mentioned them in passing. Sidney Powell described that they may have been at a White House meeting on November 8. Alex Cannon was asked about an urgent demand that the campaign provide Toensing with a paralegal on November 29. Jacqueline Kotkiewicz, a campaign researcher, described doing at least one project for Toensing, the only substance of which that she could remember was a fight over whether “nonzero” meant “zero” or “a number greater than zero.” Cleta Mitchell described connecting Toensing with John Eastman and admitted having, “quite a number of calls with Victoria,” but couldn’t remember the substance. According to an email Mitchell reviewed, Toensing then shared Eastman’s whack theories with state legislators.

Nothing that came from the January 6 Committee explains why Toensing and DiGenova would be a persistent focus of DOJ’s fake electors investigation. But they were. (As I have noted, Boris Epshteyn and Bernie Kerik were also a focus of DOJ subpoenas before they were mentioned in J6C coverage, but unlike Toensing and DiGenova, they soon became a public focus of J6C.)

As far as is public, Toensing’s phone, which was seized in the same week as Rudy’s devices, was only reviewed for the period covered by the FARA warrants, ending in 2019 (though the content would have been preserved if DOJ ever later had an interest that post-dated that). Additionally, she belatedly invoked spousal privilege over all communications on her seized phone with DiGenova.

But Rudy’s phones — or possibly even the Sidney Powell prong of the investigation that was overt by September 2021, another thing WaPo doesn’t mention — might explain why DOJ’s fake elector investigation doesn’t look like the version that got told in the press or the one told by the January 6 Committee, starting a month later.

There’s one other thing. As I laid out here, Ruby Freeman’s lawyers are pursuing further testimony from Kerik, who served as Rudy’s chief investigator after the election. They’re contesting the privilege claims Kerik has sustained from J6C, based off an argument that Kerik’s communications were not created as work product in anticipation of litigation. As Rudy explained to J6C, his team abandoned the plan to sue to overturn the vote after about the first week post-election in favor of going to legislatures, so any work product Kerik created would have been in anticipation of legislative hearings, not litigation. As stated in emails exchanged between lawyers, Rudy is not claiming privilege over Georgia-related work product done in anticipation of sharing information with legislatures (as distinct from litigation).

The position we took was that communications and work product in connection with presenting testimony and evidence before the Georgia Legislature in December 2020 was not privileged. Not that it was privileged but that we were waiving it.

[snip]

I would say that any communications or materials created in anticipation of the December 2020 Georgia Senate hearings are not privileged and should not be withheld.

Rudy had claimed similar communications were privileged in his January 6 Committee deposition given in May 2022, so this is a change in stance.

There are a lot of things that have happened since that could explain the changed posture. A different lawyer, Joe Silbey, is handling Rudy’s civil challenges. Rudy testified last August in Fani Willis’ investigation. Beryl Howell issued a ruling on the application of privilege before her on May 19 of this year (the latter of which Freeman’s lawyers cited in discussions with Kerik lawyer Tim Parlatore). But another possible explanation for Rudy’s willingness to share information on pressuring legislatures when he hadn’t before would be if the material had been deemed non-privileged in the past, perhaps one of the 56 documents on Rudy’s phone over which an initial privilege claim was either withdrawn or overridden.

To the extent it presents a coherent timeline, WaPo’s story largely tells when former FBI Assistant Director Steve D’Antuono vetoed DOJ requests and when formal investigative decisions were made. But such formal decisions always follow evidentiary collection, often by months. That’s especially true here; it’s what Merrick Garland and Lisa Monaco demanded. Even with Stewart Rhodes, whose prosecution this story makes a far more central part of January 6 than Rhodes’ actions merit, this story doesn’t talk about known evidence and cooperating witnesses that advanced the investigation (not even Joshua James, the sole witness who would play a function in WaPo’s narrative). The only mention — at all — of evidence that might drive such decisions describes J6C investigator Timothy Heaphy sharing information about Trump pressuring Pence and others.

But the January 6 fake electors investigation does not resemble the DOJ one, certainly not as to the relative import of Toensing and DiGenova.

The most obvious place that focus might have come from, and come from in time to shape the May 2022 subpoenas, would be Rudy’s phones — phones that DOJ started the process of exploiting well before J6C even started investigating.

Update: Fixed an error re: Matthew Graves’ timeline. He was confirmed on October 28, 2021 but sworn in on November 5. So SDNY started obtaining Rudy’s content before Graves was sworn in.

Barbara Jones Rules Project Veritas Was Not Engaged in Journalism When Brokering Ashley Biden’s Stolen Diary

March 21, 2023/21 Comments/in 2020 Presidential Election /by emptywheel

After 16 months, Barbara Jones has submitted her Special Master report in the Project Veritas investigation to Judge Analisa Torres.

See this post for background.

She found 1,021 documents on James O’Keefe, Eric Cochran, and Spencer Meads’ phones that were responsive to the warrants in the case. Of those:

She reviewed 17 for crime-fraud exception and after asking for submissions on 14 of them (which I noted here), she found that 10 were excepted
She found 61 documents that Project Veritas successfully argued were not related to the search warrant

By my math, that leaves 953 files she recommends be turned over to investigators.

Much of the decision builds off the guilty pleas that Miles Kerlander and Aimee Harris entered into last August. Having already identified PV’s sources and established a crime had been committed, many of the questions regarding journalistic equities were far more limited.

Jones never mentioned that this case arose — and the first warrants against journalists obtained — under the Trump Administration. Though she does scoff at PV’s claims of malice.

Perhaps the most significant part of this ruling pertains to how she applies Bartnicki, which protects the publication of illegally obtained materials that the journalist had no role in obtaining. Not only does she except the case of PV, who are subjects of the investigation, but she seems to distinguish between investigative protection and criminal protection.

First, Petitioners’ heavy reliance on Bartnicki v. Vopper, 532 U.S. 514 (2001), is misplaced. Bartnicki addressed the narrow question of whether civil liability may be imposed on a publisher who obtained information in a lawful manner but from a source who obtained it unlawfully, a question that the Supreme Court answered in the negative. See id. at 528, 533–35. Here, the question is whether the Government may receive documents responsive to valid search warrants. Bartnicki does not speak to this issue, nor does it provide general principles applicable to my review.

Petitioners repeatedly argue that they are like the publisher in Bartnicki and that their actions fall “within Bartnicki’s protection.” James O’Keefe and Project Veritas’s Brief on First Amendment and Journalistic Privileges 19, Apr. 1, 2022 (“PV Br.”). Petitioners argue that Bartnicki renders the crimes under investigation here—including interstate transportation of stolen property and possession of stolen goods—“non-crimes.”4 Id. But Bartnicki addresses liability for publication of unlawfully obtained information (there, by a source) and does not “protect” unlawful acquisition of information. It does not suggest that people are free to commit unlawful acts simply because they are journalists. In fact, Bartnicki explicitly left open the question whether the government may punish not only a publisher’s “unlawful acquisition” of information but “the ensuing publication as well.” 532 U.S. at 528 (addressing only punishment of publication of materials obtained by a publisher lawfully but by a source unlawfully). Bartnicki certainly does not foreclose a government investigation of unlawful acts in acquiring material or excuse unlawful conduct by a journalist. See also Branzburg v. Hayes, 408 U.S. 665, 691 (1972) (“It would be frivolous to assert . . . that the First Amendment, in the interest of securing news or otherwise, confers a license on either the reporter or his news sources to violate valid criminal laws.”).5 Nor does Bartnicki’s holding restrict the evidence that the Government may receive under the standards set forth above.

4 To the extent Petitioners assert “no credible claim that Project Veritas reporters stole the diary or anything else,” PV Br. 19, the crimes listed in the search warrant include conspiracy to transport stolen property across state lines, interstate transportation of stolen property, and possession of stolen goods.

5 Even if Bartnicki was applicable to this review, that decision was made based on a factual record that clearly established the publisher had nothing to do with the wrongdoing and received the materials in a lawful manner. Petitioners’ roles are currently under investigation.

The judge in this case will now decide whether to accept this report. But the case against James O’Keefe and others would still take some time for resolution.

In another case where a search warrant originally appeared abusive but turned out to be tied to something beyond journalism, NPR reports on how Rolling Stone protected James Meek in its story breaking the story of the search targeting him in child sexual abuse material case.

Special Master in Project Veritas Investigation Reviewed Crime-Fraud Submissions in December

January 19, 2023/14 Comments/in 2020 Presidential Election, emptywheel /by emptywheel

Back in December, Paul Calli and his firm withdrew from the Project Veritas Special Master docket, and was replaced by Edward Greim, a partner in Matt “Big Dick Toilet Salesman” Whitaker’s firm. He also represents a number of Trumpsters before the January 6 Committee.

That’s interesting timing because, according to the invoice that Special Master Barbara Jones just submitted, she spent two hours that week reviewing Crime-Fraud submissions in the case.

SDNY Closes Ukraine Influence Peddling Investigation into Rudy

November 14, 2022/20 Comments/in Financial Fraud, Impeachment /by emptywheel

SDNY just submitted a short note asking Judge Oetken to terminate the appointment of Special Master Barbara Jones because the investigation into Ukrainian influence peddling has been closed.

The Government writes to notify the Court that the grand jury investigation that led to the issuance of the above-referenced warrants has concluded, and that based on information currently available to the Government, criminal charges are not forthcoming. Accordingly, the Government respectfully requests that the Court terminate the appointment of the Special Master, the Hon. Barbara S. Jones.

Robert Costello had sourced stories last spring saying this was the case.

The news came minutes before New York State announced that Jones was being appointed Independent Monitor of the Trump Organization during the state proceedings against it.

DOJ Has at Least One Card Left to Play: Congress’ Instinct for Self-Preservation

September 10, 2022/86 Comments/in 2020 Presidential Election, Leak Investigations /by emptywheel

Last night, Trump and DOJ submitted their competing plans for a Special Master to Judge Aileen Cannon. As I laid out, Trump’s plan is a transparent effort to stall the entire investigation for at least three months, and after that to bottle up documents he stole — those with classified markings and those without — at NARA, where he’ll launch new legal fights in DC to prevent further access.

Judge Cannon has ordered Trump to weigh in on the government’s motion for a partial stay of her order, asking her to permit the investigative team access to any documents marked as classified, by 10AM on Monday. Trump will object for the same insane logic he gave in his Special Master proposal: That if he can get a private citizen Special Master to override the government’s classification determination, then he can declare the documents — even Agency documents that would be government, not Presidential Records — part of his own records at NARA.

Because Trump didn’t share his choices until after close of business day on Friday, both sides also have to inform her what they think of the other’s Special Master suggestions — Barbara Jones (who was Special Master for the review of both Rudy Giuliani’s and Michael Cohen’s devices) and retired George W. Bush appellate judge Thomas Griffith for the government, and retired EDNY and FISC judge Raymond Dearie and GOP partisan lawyer Paul Huck Jr for Trump — on Monday.

Then, if Cannon has not relented on the investigative side for documents marked as classified by Thursday, DOJ will ask for a stay of that part of her decision from the 11th Circuit, pending the rest of their appeal (the scope of which remains unknown and may depend on her other decisions this week).

Cannon’s decision on whether to permit investigators to access the documents marked as classified may provide the government leverage over the Special Master choice, which could create new bases for appeal. None of the choices for Special Master are known to be cleared, much less at the TS/SCI levels that would be needed to review the documents Trump stole, though Dearie, who was on FISC as recently as 2019, surely would be easily cleared as such.

That doesn’t matter for the government’s preferred approach. The Special Master won’t get any known classified document under their approach.

They would, however, under Trump’s approach (which more closely matches Cannon’s current order). And so DOJ will have to agree to give clearance to whatever person ends up as Special Master under the Trump plan.

The same Supreme Court precedent that undergirds all these arguments about classification authority, Navy v. Egan, is specifically a ruling about the Executive’s authority to grant or deny clearances. The government could deny any of the proposed Special Masters clearance — and might well do so, to deny Huck access. Likewise, the government might well deny Trump’s lawyers (at least Evan Corcoran, who is likely either a witness or subject of the obstruction side of the investigation) clearance for such a review as well.

So if Cannon doesn’t grant the government’s motion for a stay, then she effectively gives the government several more levers over her control of the Special Master process.

She probably doesn’t give a damn.

There are two other developments we might expect this week, though.

First, last Wednesday, DOJ asked and Chief Judge Beryl Howell granted permission to unseal the parts of the search warrant affidavit mentioning the same two grand jury subpoenas that she unsealed for mention in DOJ’s response to Trump’s Special Master motion. (I’m looking for the person I owe a hat-tip to this for.) Since receiving that permission, DOJ has not yet gone back to Magistrate Judge Bruce Reinhart to request further unsealing of the affidavit; there’s not even the tell-tale sealed filings in the docket that ended up being prior such requests.

If and when DOJ does ask for further unsealing, it might reveal more information about Trump’s actions — and, importantly for the question of who can be cleared for the Special Master review, Evan Corcoran’s. There are several entirely redacted paragraphs that likely tell what happened in response to the May 11 subpoena. There’s also a likely detailed discussion of the probable cause that Trump — and others — obstructed the investigation, some of which could be unsealed with mention of the surveillance video.

The government response before Cannon didn’t address the evidence of obstruction (or the June 24 subpoena) in much detail. Simply unsealing references of that subpoena in the affidavit might provide more damning information about Trump’s efforts to hide classified documents from DOJ.

More importantly, on Tuesday, the House returns from August recess. It’ll be the first time since the search that both houses of Congress are in town. And in their Motion for a Stay, the government noted (and Judge Cannon did not object) that it did not understand Cannon’s order to prohibit a briefing to “Congressional leaders with intelligence oversight responsibilities.”

5 The government also does not understand the Court’s Order to bar DOJ, FBI, and ODNI from briefing Congressional leaders with intelligence oversight responsibilities regarding the classified records that were recovered. The government similarly does not understand the Order to restrict senior DOJ and FBI officials, who have supervisory responsibilities regarding the criminal investigation, from reviewing those records in preparation for such a briefing.

This seems to telegraph that DOJ plans to brief the Gang of Eight — which includes Nancy Pelosi, Adam Schiff, Kevin McCarthy, Mike Turner, Chuck Schumer, Mark Warner, Mitch McConnell, and Marco Rubio — about what documents Trump stole, possibly this week. Turner and to a lesser degree Rubio have been demanding such a briefing.

And at a minimum, after such a briefing you’d see everyone run to the press and express their opinions about the gravity of Trump’s actions. Because neither DOJ nor Aileen Cannon can prevent these members of Congress from sharing details about these briefings (especially if they’re not classified), you should be unsurprised everyone to provide details of what Trump stole.

That might devolve into a matter of partisan bickering. But two things might moderate such bickering. First, Marco Rubio is on the ballot in November, and Val Demings has already criticized his knee-jerk defense of Trump.

Just as importantly, Mitch McConnell, who badly would like to prevent Democrats from expanding their majority in the Senate and just as badly would like the MAGA Republicans to go away, really doesn’t want to spend the next two months dodging questions about Trump’s crimes.

If not for Trump’s demand for a Special Master, DOJ likely would have put its head down and mentioned nothing of this investigation until after the election. But by demanding one — and by making such unreasonable requests — Trump has ensured that the investigation into his suspected violations of the Espionage Act and obstruction will dominate the news for at least a few more weeks.

Even if DOJ doesn’t brief the Gang of Eight, even if that doesn’t lead to damning new details and recriminations from being made public, the public nature of the Special Master fight will suck all the oxygen out of the next few weeks of campaign season, at least, just as it contributed to Joe Biden enjoying one of the most positive mid-term Augusts for any President in the last half-century.

But if new specifics about Trump’s negligence and efforts to obstruct the investigation are made public, then November’s election will be precisely what Republicans are trying to avoid it being: not just a response to the Dobbs ruling overturning protection for abortion access, but a referendum on the way Republicans have sacrificed American security in their fealty to Donald Trump.

The “Subject” of Robert Costello’s Declination

August 4, 2022/3 Comments/in 2020 Presidential Election, Foreign Influence, January 6 Insurrection /by emptywheel

Since April, the SDNY investigation into whether Rudy Giuliani worked as an unregistered foreign agent for Yuri Lutsenko has gone dark. I thought it possible that it had reached a dead end, but figured we’d learn if that were true when Rudy’s lawyer, Robert Costello, noisily announced that prosecutors told Rudy he was no longer a subject of the investigation.

Costello gave a version of that announcement yesterday to the NYT and at least one other outlet.

Only, he didn’t announce that prosecutors had told him Rudy was no longer a subject. On the contrary, Costello appears to confirm that Rudy remains a subject of investigation at SDNY. Costello used a different event — the return of Rudy’s seized devices — as his basis for saying he probably won’t be charged in the Lutsenko inquiry.

Because a broad swath of people routinely misrepresent what I have or am saying about Rudy, let me be very clear: I have no reason to doubt the NYT reporting or Costello’s claim that the investigation that Jeffrey Rosen intentionally circumscribed in 2020 into whether Rudy failed to register for his work for Ukrainian official Yuri Lutsenko will likely not result in charges.

But the specifics of what Costello said and did not say are of interest.

Before I look at what Costello said, a reminder that SDNY seized Rudy’s devices in April 2021. In September, they got Judge Paul Oetken to approve their preferred scope for a Special Master review of Rudy’s phones to include for review everything, regardless of subject, after January 1, 2018. In November and January, Special Master Barbara Jones turned over materials to the government. Half of the devices she reviewed covered just a focused period specific to the Ukraine investigation December 1, 2018 through May 31, 2019; the rest covered the entire period of review, January 1, 2018 through the April 2021 seizure. After Jones finished her privilege review, the material she turned over would be scoped (meaning, sorted for the material that matched the warrant(s) against Rudy) by the FBI. Jones’ last publicly posted report actually showed that the review of the single phone seized from Victoria Toensing’s phone was ongoing, with the involvement of Dmitry Firtash. Firtash had been represented by Toensing when the phone was seized but is now represented (again) by Lanny Davis. The last we heard from Jones in this case on January 21, she said, “I will confer with the Government and counsel for Mr. Giuliani and Ms. Toensing regarding additional review assignments.”

In March, in the related SDNY counts, Lev Parnas filed to change his plea on the remaining charge against him and pled guilty on March 29. At a sentencing hearing on June 29 where the government scoffed at Parnas’ claims of cooperation and associated media blitzes, Judge Oetken sentenced Rudy’s former associate to 20 months in prison. That’s relevant because one identifiable source for yesterday’s NYT story was Parnas, who in fact telegraphed something was coming the day before. Parnas, it seems, has reason to believe Rudy and he won’t be charged for his Lutsenko work (this work was actually included in Parnas’ original 2019 indictment, but was removed in 2020).

The day before Parnas telegraphed such a story was coming, DOJ asked to unseal a July 29, 2021 Oetken opinion finding that a communication describing efforts that Alexander Mikhalev was making to hide his role in influence-peddling relating to some cannabis businesses in the US was crime-fraud excepted.

I believe what’s left was for Igor and Lev to establish who is going to be shareholder(s) of the NewCo and could we all use LLC’s as our proxy’s in it. I am just trying to establish core structure and how transparent should Andrey be exposed for the benefits of NewCo Transparency, his Russian roots and current political paranoia about it.

My wildarse guess is DOJ wants this unsealed so a different Federal entity can use the email to sanction Mikhalev for foreign influence peddling, but that’s just a WAG. SDNY’s letter asking for the unsealing reflects having obtained permission from Parnas’ attorney before the unsealing, so even though SDNY believes Parnas unreliable for the way he blabs to the press, there was recent communication with him on this point.

Back to Rudy. When last we heard, in April, CNN reported that SDNY might soon reach a charging decision on Rudy’s case because he provided investigators some possible passwords for several (the numbers here are inconsistent with the Special Master’s numbers) of the phones FBI couldn’t unlock.

Federal prosecutors may soon reach a charging decision regarding Rudy Giuliani’s foreign lobbying efforts involving Ukraine, after he helped investigators unlock several electronic devices that were seized by the FBI, according to multiple sources familiar with the probe.

Giuliani has also offered to appear for a separate interview to prove he has nothing to hide, his lawyer told CNN, renewing a proposal that federal prosecutors have previously rebuffed.

That, CNN’s sources claimed three months ago, could lead to a quick decision.

In recent weeks, Giuliani met with prosecutors and during the meeting he assisted them in unlocking three devices that investigators had been unable to open, according to people familiar with the investigation. It is unclear if Giuliani also answered questions from investigators during this meeting.

Giuliani provided a list of possible passwords to two other locked devices, the people said. Is it unknown if those passwords successfully unlocked those devices and how much relevant material is on the recently unlocked devices.

Now that several more devices are unlocked, that could speed up the review and ultimately lead to a quick decision over whether the former mayor of New York will face criminal charges. Unless new information comes to light that leads to new routes for authorities to pursue, federal prosecutors at the US Attorney’s Office in the Southern District of New York — which Giuliani led in the 1980s — are likely to decide whether to bring charges soon after the review, people familiar with the matter told CNN.

Even then, the anonymous sources talking about Rudy’s case suggested he would only be charged if new information came to light.

That claim showed up in yesterday’s NYT story, as well: DOJ had enough to seize Rudy’s devices, but found no smoking gun. Yesterday’s piece even linked the CNN story from April, which had suggested Rudy had met with prosecutors “in recent weeks,” but this time dating the meeting to February, so months before CNN reported that a recent event meant a decision was imminent and at least five months ago from today, and clarifying that Rudy had answered prosecutors’ questions.

One key new piece of news, however, was that DOJ had recently returned Rudy’s devices.

While prosecutors had enough evidence last year to persuade a judge to order the seizure of Mr. Giuliani’s electronic devices, they did not uncover a smoking gun in the records, said the people, who spoke on the condition of anonymity to discuss a federal investigation.

The prosecutors have not closed the investigation, and if new evidence were to emerge, they could still pursue Mr. Giuliani. But in a telling sign that the inquiry is close to wrapping up without an indictment, investigators recently returned the electronic devices to Mr. Giuliani, the people said. Mr. Giuliani also met with prosecutors and agents in February and answered their questions, a signal that his lawyers were confident he would not be charged.

We can assume that detail — that DOJ returned Rudy’s devices — likely came from Robert Costello because (as happens increasingly these days), another outlet — Reuters — quoted Costello on the record saying what NYT had granted someone anonymity to share.

FBI agents recently returned the cell phones and other electronic devices they had seized from Donald Trump’s former attorney Rudy Giuliani, in a possible sign the investigation into whether he failed to register as a foreign agent of Ukraine could be winding down, his attorney said on Wednesday.

Robert Costello, Giuliani’s lawyer, told Reuters he has not been officially notified yet whether federal prosecutors in Manhattan are closing the investigation.

But he said the return of the devices is a positive sign for his client.

“I have not been officially told that its [sic] over,” Costello said. “It is possible they could make some startling new discovery…but we have always been confident that he didn’t do anything wrong.”

The primary other new piece of news in the NYT story describes documents and texts — the likes of which have recently been returned to Robert Costello — detailing a purported review of Rudy’s contacts with Dmitry Firtash that started in June 2019.

Mr. Giuliani began contacting Mr. Firtash’s lawyers in June 2019 seeking information about corruption in Ukraine, around the time Mr. Trump was pressing Ukraine’s president, Volodymyr Zelensky, to investigate the Bidens. Mr. Firtash’s lawyers told Mr. Giuliani they did not know of anything relevant.

There is no indication Mr. Firtash assisted Mr. Giuliani in his attacks on the Bidens, and Mr. Davis said the oligarch “categorically denies ever helping Giuliani or anyone else in any effort to dig up dirt.”

Even so, in the summer of 2019, an associate of Mr. Giuliani, Lev Parnas, met with the oligarch and recommended he add new lawyers to his team, the husband and wife, who were helping Mr. Giuliani dig into the Bidens. Mr. Parnas was paid to serve as their interpreter, and Mr. Firtash agreed to pay for some of Mr. Parnas’s travel expenses.

The offer seemed ideal. Around this time, Mr. Giuliani was preparing to go to London, and wanted to determine who would cover his travel. “Running into money difficulties on trip to London,” Mr. Giuliani wrote to Mr. Parnas in a text message.

During the trip in late June, Mr. Giuliani met in a hotel conference room with some Firtash associates, including a banker whose cousin was a Burisma executive.

Mr. Davis said the purpose of the meeting was to discuss Mr. Firtash’s contention that his extradition was politically motivated, and his associates did not talk about Burisma. The oligarch’s associates did not seek Mr. Giuliani’s help, Mr. Davis added.

That day, Mr. Giuliani upgraded hotels to the Ritz London. Mr. Firtash’s company, Group DF, later covered the roughly $8,000 stay, interviews and records show. The next month, the company paid $36,000 for a private flight Mr. Giuliani took from the Dominican Republic to Washington. And that August, Mr. Giuliani traveled with a friend and a bodyguard to Spain at a cost of more than $30,000, an expense that was listed on an invoice to a Group DF assistant and a longtime adviser to Mr. Firtash.

Mr. Costello said that Mr. Giuliani “doesn’t know how it came about.”

Note: Much if not all of this activity pertaining to Firtash post-dates the temporal scope, which ended on May 31, 2019, of Jones’ prioritized reviews. For eight of Rudy’s phones, the privilege review would not (based on public records, anyway) have been complete on materials after that period when Rudy met with prosecutors in February. The material would be in the temporal scope of the known warrants, which extend through December 2019, but not the Special Master review of eight devices.

Firtash’s name also didn’t appear in Parnas’ description of the scope of the inquiry that he released via redaction fail last year.

In a chart, the Government identified that it had sought and seized a variety of undisclosed materials from multiple individuals, including: the iCloud and e-mail accounts of Rudolph Giuliani (11/04/19); the iCloud account of Victoria Toensing (11/04/19); an email account believed to belong to former Prosecutor General of Ukraine, Yuriy Lutsenko (11/6/19); an e-mail account believed to belong to the former head of the Ukrainian Fiscal Service, Roman Nasirov (12/10/19); the e-mail account of Victoria Toensing (12/13/19); the iPhone and iPad of pro-Trump Ukrainian businessman Alexander Levin (02/28/2020 and 3/02/2020); an iCloud account believed to belong to Roman Nasirov (03/03/2020); historical and prospective cell site information related to Rudolph Giuliani and Victoria Toensing (04/13/2021); electronic devices of Rudolph Giuliani and Giuliani Partners LLC (04/21/2021); and the iPhone of Victoria Toensing.

If there were any SDNY investigation into Firtash, you would expect to see warrants targeting his cloud content as well. It wasn’t in the warrants that Parnas had seen at the time of seizure.

So one thing this story (which also relies on Firtash lawyer Lanny Davis as a source) does is compare notes between suspects about the scope of SDNY’s interest in Rudy’s contact with Firtash. As NYT notes, it actually reveals that the investigation into Rudy was broader than previously known, and broader than the scope of the known warrants as described by Parnas.

In any case, what Costello told Reuters and presumably told NYT is that 1) he recently got these phones (content from which likely contributed to this story) back and 2) SDNY has not told him that Rudy is no longer a subject.

Generally, if DOJ seizes items as part of a grand jury investigation, they can keep them:

So long as the grand jury investigation in which the property was seized is ongoing
Until such time as FBI fully exploits the devices (that is, until they crack passwords and identify deleted content)
During the pendency of a Special Master review
For use in a charged prosecution if the validity of an extraction might otherwise be challenged

This response to Project Veritas’ efforts to get their phones back in a different SDNY investigation lays out the precedents in the District. If the grand jury investigation is closed, the subject of the investigation gets their property back, and Rudy has gotten his property back. So Costello fairly concludes that the known grand jury investigation into Rudy has been closed.

The thing is, if those materials are used for any other investigation — particularly now that they’ve been reviewed for privilege with kind of involvement from Costello that would amount to stipulation about the accuracy of the exploitation — would not be shared around DOJ as actual devices, some imaginary bag of Rudy Giuliani’s many phones passed from FBI agent to FBI agent. They’d be shared, via separate warrant from separate grand jury investigations, on hard drives of the post-privilege review content.

Costello can say with some confidence the grand jury investigation opened in 2019 won’t result in charges. But he doesn’t have a good explanation for why even SDNY has not told him Rudy is no longer a subject.

A more interesting part of the timing, to me, is that before Rudy got his devices back, a different part of DOJ obtained two rounds of subpoena returns from at least a dozen people asking (among other things) for all their post-October 1, 2020 communications to, from, or involving Rudy Giuliani or Victoria Toensing. Some of the people receiving those subpoenas would be hostile witnesses, themselves possible suspects of a crime. DOJ started, though, with people who had refused to take part of the fake elector scheme, who presumably could be expected to fully comply with the subpoena, including providing any Signal, WhatsApp, ProtonMail, or Telegram communications that might otherwise be unavailable.

The FBI likely has enough sets of subpoena returns including Rudy’s comms to know what content should be on his phones from when he was helping to plot a coup.

That’s the kind of thing FBI might have wanted to check before they released Rudy’s phones, to know how aggressively they had to look for potentially deleted content on the devices.

Crime in the Era of Encrypted Apps: The Relationship between the DOJ and January 6 Investigations into Fake Electors

June 23, 2022/30 Comments/in 2020 Presidential Election, January 6 Insurrection /by emptywheel

Yesterday, DOJ took a slew of overt steps in their investigation into the fake electors:

WaPo: Law enforcement activity targeting GA lawyer Brad Carver and Trump staffer Thomas Lane, subpoenas for GA GOP Chair David Shafer and Michigan fake electors
NYT: Subpoenas to Trump campaign aide in MI, Shawn Flynn, as well as Carver, Lane, and Shafer
CBS: Search warrants for NV GOP Chair Michael McDonald and Secretary James DeGraffenreid
CNN: Subpoena for Shafer, a warrant for Brad Carver’s phone, information on a GA Signal chat

Even though some of these reports cite the late January batch of subpoenas DOJ sent to people who had declined to participate in the fake elector scheme, the timing of the action — taking place one day after the hearing on the scheme — has set off the usual set of whinging that DOJ isn’t doing as much as the January 6 Committee.

Yet even the first of these stories — the WaPo one — provides reason to believe that DOJ is not chasing the January 6 Committee on this investigation at all. And as I keep pointing out, in April 2021, DOJ took steps — starting on Lisa Monaco’s first day in office — that will be critical to this investigation.

I’ve laid out how, by seizing Rudy Giuliani’s phones in conjunction with his Ukraine influence peddling investigation on April 28, DOJ has made the content available for the January 6 investigation at whatever time they were able to show probable cause for a warrant. That’s because the privilege review covered all content from the phones that post-dates January 1, 2018 and the privilege review was conducted prior to any review for relevance, so it would cover content whether or not it related to Ukraine.

As this table lays out, the review on half the devices DOJ was able to get into (there were two the passwords for which it had not cracked by April) included content to date of seizure on April 28, 2021.

Special Master Barbara Jones turned over the last of this material on January 21, days before Monaco confirmed that DOJ is investigating the fake elector scheme. In April, purportedly to conduct an interview in advance of an imminent decision on Rudy’s Ukraine influence-peddling, DOJ asked for his help to get into the last several phones (the numbers in this story don’t match Barbara Jones’ reports, but CNN may suggest there were two newly discovered phones; there has been no overt activity in the Special Master docket since then).

All of which is to say that whatever material Rudy, a prolific texter, had on his phones about the fake elector scheme he was central to would have been available to DOJ with a warrant since January, but that’s only true because DOJ started this process on Monaco’s first day on the job.

Even in spite of that (and the timing of Monaco’s announcement of the investigation into the fake electors), like many people, I believed DOJ might have been chasing the January 6 Committee investigation. Except several details revealed in recent days makes it clear that DOJ had developed information independent of the Committee.

For example, I first learned that Boris Epshteyn was involved from this slide in Tuesday’s hearing, which left Epshteyn’s name unredacted whereas the copy docketed in the John Eastman litigation redacts it.

But Kyle Cheney noted that Epshteyn’s name was first made public in a footnote in the associated court filing. That filing was dated May 26.

Before May 26, according to earlier NYT and CNN stories on DOJ’s investigation into the fake electors, prosecutors were already asking about Epshteyn’s role. Here’s CNN:

Former Trump attorney Rudy Giuliani, adviser Boris Epshteyn and campaign lawyer Justin Clark are among the list of names the witness was asked about, the source said.

Yesterday’s WaPo story similarly described prosecutors asking about the involvement of someone — Bernie Kerik — whose role the January 6 Committee has not yet (as far as I’m aware) public disclosed.

Those earlier subpoenas sought all documents since Oct. 1, 2020, related to the electoral college vote, as well as any election-related communications with roughly a dozen people in Trump’s inner circle, including Rudy Giuliani, Bernard Kerik, Boris Epshteyn, Jenna Ellis and John Eastman.

One would-be Trump elector in Georgia, Patrick Gartland, had been appointed to the Cobb County Board of Elections and Registration and believed that post meant serving as an elector would have created a conflict of interest for him. Still, two FBI agents recently came to his home with a subpoena and asked whether he had any contact with Trump advisers around the time of the November election. “They wanted to know if I had talked to Giuliani,” Gartland said.

One possible explanation (though not the only one) is that DOJ has a more Rudy-focused understanding of the elector scheme than the Committee, which would make sense if they had materials from Rudy’s devices that the Committee doesn’t have.

To be clear: I think it likely that DOJ has or will exploit the January 6 investigation into the same topic in at least two ways.

First, I think it likely that DOJ piggybacked on the Committee’s privilege fight with Eastman. They’ve always had the ability to serve a warrant on Chapman University for the same emails the Committee has been receiving covertly, after all, which is the kind of thing DOJ loves to do in an investigation. But by doing so in the wake of Judge David Carter’s privilege decisions, DOJ can get crime-fraud excepted communications without a Special Master process like the one they used with Rudy.

And, because the January 6 Committee is obtaining sworn depositions from some of the people involved, DOJ may get evidence of false statements — from people claiming to have no knowledge of the larger scheme or corrupt intent of the fake electors — that they could use to coerce cooperation down the road.

With the warrants in NV and GA, DOJ is taking the kind of overt acts that sometimes precede arrests. Because DOJ can get email and social media content covertly, it almost always does that before serving subpoenas (to minimize the chance someone will destroy evidence in response). Only after that, usually, do they seize someone’s phone. That kind of stuff takes months. So there’s no way DOJ could have gotten there overnight based entirely off watching the January 6 hearing.

In Tuesday’s hearing, it became clear that the GOP will try to, institutionally, blame Trump for all this. That may not be true. But it may be useful for DOJ investigators.

Update: Fixed the names of the NV GOPers.

Update: Fixed Brad Carver’s name.

Tick Tock: SDNY Tells Project Veritas, Again, To Wait Until James O’Keefe Is Indicted to Complain

May 7, 2022/28 Comments/in 2020 Presidential Election, emptywheel /by emptywheel

As I noted back in March, when Project Veritas discovered what was clear from the start — that SDNY had relied on material obtained from emails involving James O’Keefe and two other Project Veritas associates to get warrants to obtain their phones — they tried to claw back not just the emails but also the phones.

[B]efore obtaining warrants to seize James O’Keefe’s phones, DOJ had first obtained emails that provided the evidence to get the warrants for his phones.

The Government disclosed many of its covert investigative steps in the ex parte context of the Affidavit, including each email search warrant it had obtained pursuant to the SCA in this investigation.

This is precisely what SDNY did with Michael Cohen and Rudy Giuliani, and it’s what Magistrate Judge Sarah Cave was talking about when she referred to the “considerable detail” in the affidavit.

Third, the Court has reviewed the Materials in camera and observes that they contain considerable detail about individuals who may have already provided information to the Government—voluntarily or involuntarily—such that unsealing of the Materials “could subject [them] to witness tampering, harassment, or retaliation.”

PV revealed that in a motion asking Judge Analisa Torres to claw back this information.

In March, DOJ told PV to wait until they were indicted to complain (here’s my thread on that response).

Days later, on March 30, PV tried again, petitioning Judge Torres to force the government to return all their phones and their emails.

Tick tock, tick tock.

On April 11, Judge Torres set a briefing schedule: the government had to file a response by May 6, and PV should file their reply by May 20.

Tick tock, tick tock.

Right on schedule, the government filed its response last night. The response is 28-pages long, much of which is dedicated to explaining to PV how the Fourth Amendment works and asserting that SDNY is quite confident the magistrates’ rulings findings there was probable cause that these accounts and devices would contain evidence of enumerated crimes will hold up. The discussion includes a particular focus on how SDNY already has precedents approving investigations that first obtain emails covertly and then seize phones overtly, as they did with Rudy Giuliani and (while they don’t rely on the precedent) did with Michael Cohen before that.

To the extent that the Movants are attempting to raise arguments with respect to execution of the warrants for email account data, there is no legal basis for such challenges at this stage of an ongoing grand jury investigation. Last year, Judge Oetken denied a similar challenge where the circumstances were materially the same: in the course of a multi-year, covert investigation, the Government obtained electronic data pursuant to judicially-authorized search warrants issued under 18 U.S.C. § 2703, the Government had reviewed that electronic data prior to the overt execution of search warrants for electronic devices, and a Special Master was appointed to oversee the review of the contents of the electronic devices (but not the electronic data obtained previously). Specifically, Judge Oetken ruled:

Giuliani and Toensing also seek pre-indictment discovery of the Government’s privilege and responsiveness designations in connection with the 2019 warrants [obtained covertly, pursuant to 18 U.S.C. § 2703]. They cite no legal authority for this request, and the Court is aware of none. If there is a criminal proceeding, any defendants will be entitled to discovery under Rule 16. There is no basis for compelling the Government to produce this information now, during an ongoing grand jury investigation.

Finally, the Court sees no legal basis for Toensing’s request for detailed information about the filter team review process, at least at the pre-charge phase of this matter.

In re Search Warrants Executed on Apr. 28, 2021, 2021 WL 2188150, at *2. The circumstances confronted by Judge Oetken are indistinguishable from those presented here. The Movants offer no authority contrary to Judge Oetken’s ruling, and the Government is aware of none. To the extent the Movants may potentially be entitled at some point to the disclosures that they seek, any such entitlement would only be triggered, if at all, by the filing of an indictment charging them in connection with the investigation, and not before.12

12 Or, potentially, by the filing of a civil claim, should one exist, that survives a motion to dismiss and proceeds to discovery.

Just for good measure, though, SDNY makes it clear they had reviewed all the emails before obtaining the overt warrants on O’Keefe and his flunkies, which makes it a good bet they relied on the email content to show probable cause to get the phone warrants.

With respect to the subscriber, non-content, and content information for email accounts referenced by the Movants, which were obtained pursuant to a grand jury subpoena and orders and warrants issued by federal magistrate judges pursuant to the Stored Communications Act (the “SCA”), 18 U.S.C. § 2703, the Government’s review of those materials was completed months ago, before the Movants initiated this Part I matter in November 2021.

I’ve stated repeatedly this was what happened here, only to have a PV lawyer claim I was wrong.

I was not wrong.

As I said, the bulk of this filing is just a primer in how the Fourth Amendment works, as applied. It is thorough, but it mostly feels like T-crossing.

More specific to the facts at hand, however, SDNY accuses PV of attempting to bypass the Special Master process they themselves demanded and Judge Torres approved last year.

Consisting of equal parts rhetoric, speculation, and inaccurate factual assertions, the motion is little more than a misguided attempt to end-run the Special Master process that this Court put in place and prematurely litigate the merits of the Government’s prior investigative steps.

[snip]

With respect to the devices that are subject to the Special Master’s review, the Movants’ attempt to put these arguments before the Court while the same arguments are pending before the Special Master appears to be an improper end-run around the Special Master. As explained above, these very arguments were fully briefed as of April 20, 2022, and are in the process of being decided by the Special Master. The Movants should not be permitted to short-circuit the process that this Court put in place, at their request, and which will adequately safeguard any potentially privileged materials that were contained on the devices.11

11 In the event the Court finds any of these issues material to the resolution of the motion, the Court should defer consideration until after the Special Master has issued a ruling on the same.

Even if Torres is sympathetic to poor James O’Keefe’s plight (and she accorded him better treatment than Rudy Giuliani got in the same court), she’s likely to be pissed about this aspect of things, that she went to the trouble of approving a Special Master and splitting the costs to pay for Barbara Jones’ services, only to have PV demand more.

And here’s why that matters: as SDNY noted, Jones is as we speak making final decisions about what SDNY gets.

The Special Master’s responsiveness review has largely been completed, with the contents of only one device currently under review. The parties have submitted briefs outlining their positions regarding the law and principles that should be applied to the Movants’ objections to the release of the items that the Special Master has deemed responsive to the search warrants to the investigative team. 2

2 The Movants submitted their briefs to the Special Master on April 1, 2022, the Government submitted its response on April 13, 2022, and the Movants submitted a reply on April 20, 2022.

Tick tock, tick tock.

Project Veritas was, almost certainly, already preparing their briefing for Jones when they demanded this end-run around the Special Master process. They had, almost certainly, reviewed what was about to be turned over to SDNY and how, having read the affidavits that PV is still trying to get, Jones interpreted the scope of the investigation. So not only does this timing seem to substantiate SDNY’s claim they’re trying to back out of their demands for a Special Master, but it makes it likely that by the time they file their own reply two weeks from now — tick tock, tick tock — Jones will already have submitted her recommendations regarding what materials SDNY gets.

And until then, SDNY explained in their law school primer to PV about how the Fourth Amendment works in practice, SDNY gets to keep all the evidence implicating a criminal investigation until they decide whether or not to charge anyone.

To the contrary, the electronic devices retained by the Government were obtained pursuant to search warrants issued by a Magistrate Judge after a finding of probable cause, and are currently in the final stages of the Special Master’s review process. Similarly, the contents of email accounts were also obtained pursuant to search warrants issued by Magistrate Judges after findings of probable cause, and the Government’s review of materials obtained pursuant to those warrants was completed months ago. There can be no dispute that the Government’s investigation is ongoing, that these materials include evidence relevant to that investigation, and that, if a prosecution results from the investigation, these materials will have evidentiary value.

[snip]

Third, the Government’s retention of the items and materials at issue is reasonable because its investigation remains ongoing and the return of the property sought would impair the Government’s investigation. The electronic devices at issue either have been determined by the Special Master to contain responsive items, are currently under review by the Special Master, or have not yet been reviewed by the Special Master due to technical impediments. Similarly, the email account content has been reviewed by the Government and has been determined to contain material responsive to the search warrants. See, e.g., In re Search Warrants Executed on Apr. 28, 2021, 2021 WL 2188150, at *2 (denying pre-indictment motion to “return” to movants the “results from earlier search warrants of [movants’] iCloud and email accounts” because, among other reasons, “the review of the [earlier] warrant returns is now largely complete”). These items and materials are anticipated to have evidentiary value if a prosecution arises from the Government’s ongoing grand jury investigation. In light of the character of these items and materials and the status of the Government’s investigation, retention of the items and materials is reasonable at least until the Government’s investigation is completed or, in the event a prosecution arises from the investigation, until such time that the criminal case reaches its conclusion.

SDNY is not saying that a prosecution will arise from the materials seized from PV. But they are saying they’ve found evidence that would be relevant if they chose to do so.

And, SDNY repeats again in their primer on how the Fourth Amendment works, it’s only after SDNY makes that decision that James O’Keefe will have standing to challenge these searches.

Four Rudy Giuliani-Related Privilege Reviews: DOJ Likely Already Has a Version of Document 4708

March 30, 2022/75 Comments/in 2020 Presidential Election, emptywheel, January 6 Insurrection /by emptywheel

As I noted here and here, on Monday, Judge David Carter ordered John Eastman to turn over most documents he had been trying to withhold from the January 6 Committee. That order found that it was likely that Trump and Eastman had conspired to defraud the US. But there was just one document turned over on the basis of crime-fraud exception: a document otherwise privileged under a work product claim that, Judge Carter ruled, could not be withheld because it was sent in the commission of the attempt to obstruct the vote count.

Here’s how Carter described the document:

In this email, a colleague forwards to Dr. Eastman a memo they wrote for one of President Trump’s attorneys.153 The memo sketches a series of events for the days leading up to and following January 6, if Vice President Pence were to delay counting or reject electoral votes. The memo clearly contemplates and plans for litigation: it maps out potential Supreme Court suits and the impact of different judicial outcomes. While this memo was created for both political and litigation purposes, it substantively engages with potential litigation and its consequences for President Trump. The memo likely would have been written substantially differently had the author not expected litigation. The Court therefore finds that this document was created in anticipation of litigation.

[snip]

The eleventh document is a chain forwarding to Dr. Eastman a draft memo written for President Trump’s attorney Rudy Giuliani.274 The memo recommended that Vice President Pence reject electors from contested states on January 6. This may have been the first time members of President Trump’s team transformed a legal interpretation of the Electoral Count Act into a day-by-day plan of action. The draft memo pushed a strategy that knowingly violated the Electoral Count Act, and Dr. Eastman’s later memos closely track its analysis and proposal. The memo is both intimately related to and clearly advanced the plan to obstruct the Joint Session of Congress on January 6, 2021. Because the memo likely furthered the crimes of obstruction of an official proceeding and conspiracy to defraud the United States, it is subject to the crime-fraud exception and the Court ORDERS it to be disclosed.

274 4708. [my emphasis]

Carter’s decision and the release of documents has set off the usual wails about how much more proactive the January 6 Committee is than DOJ, replete with statements of fact — almost always people who haven’t done any work to understand what DOJ is really doing — that DOJ hasn’t taken steps to obtain such documents itself.

I’d like to look at four privilege reviews that implicate Rudy Giuliani and show that it is likely DOJ already has this document or at least ones that are related. Those reviews are:

Judge David Carter’s review of 111 documents subpoenaed from John Eastman by the January 6 committee
The 11-month long privilege review of materials on 16 devices seized from Rudy Giuliani on April 28, 2021
Details released about Robert Costello’s advice to Steve Bannon provided in response to a subpoena from the January 6 Committee
The known details about subpoenas served on Sidney Powell’s non-profit, Defending the Republic

John Eastman

As explained here, the David Carter opinion describes the judge’s privilege review of just four days of materials (January 4 to January 7, 2021) responsive to the January 6 Committee subpoena to Eastman. Carter went meticulously through seven categories of materials in Eastman’s possession and determined that just ten documents could be withheld under a work product claim and one — document 4708 — had to be turned over under a crime-fraud exception.

Carter ruled the document — an email chain that forwarded a memo written for Rudy to Eastman — was excepted under a crime-fraud exception because, the judge described, it sought to transform Eastman’s Electoral Count Act scheme “into a day-by-day plan of action.” Eastman didn’t write it. Rather, because the document was created for Rudy, Carter treated it along with four others, “created by or for agents of President Trump or his campaign, including attorneys of record in state cases and President Trump’s personal attorney.” [my emphasis]

References to the document explain that Eastman claimed attorney-client privilege over the document (fn 81, 125) and someone wrote “PRIVILEGED AND CONFIDENTIAL” in email text (fn 101).

Carter’s review of the document is particularly valuable for how he dismisses Eastman’s attorney-client privilege claim: In hundreds of pages of briefing, Eastman provided no evidence that its sender was affiliated with the Trump campaign or was covered by Eastman’s own claim to be representing Trump.

Dr. Eastman claims attorney-client privilege over only nine documents: five emails125 and four attachments.126 None of these documents includes Dr. Eastman’s client, President Trump, as a sender or recipient of the email. Instead, all emails are sent from a third party to Dr. Eastman, and two of the emails blind copy (bcc) a close advisor to President Trump.127

Despite having filed nearly a hundred pages of briefing, Dr. Eastman does not mention this third-party email sender anywhere in his briefs; the person is named only in his privilege log entries. Dr. Eastman’s description in the privilege log is conclusory, describing the sender merely as his “co-counsel.”128 Dr. Eastman failed to provide retainer agreements or a sworn declaration that would prove this third party was an attorney or agent for President Trump. The Court also cannot infer the third party’s affiliation with President Trump from his email, which is a generic, [email protected] email address. Dr. Eastman has not met his burden to show that these communications were with an agent of President Trump or the Trump campaign, and as such, these documents do not warrant the protection of the attorney-client privilege.

In other words, there was someone involved in relaying a memo originally written for Rudy to Eastman that Eastman didn’t want to or couldn’t argue was a Trump lawyer. And that’s why this attorney-client privilege claim failed. That’s an important detail because — as we’ll see — Bannon tried something similar.

Rudy Giuliani

Now let’s turn to Rudy’s phones. As I keep explaining, while the known warrants used to seize Rudy’s phones cover his Ukrainian influence peddling and cover a time period from May 1, 2018 through December 31, 2019, SDNY got Judge Paul Oetken to approve a Special Master review that covered the period from January 1, 2018 through the date of seizure, April 28, 2021. Special Master Barbara Jones’ review is only for privilege claims (including Executive privilege and attorney-client at least), not for responsiveness to any subpoena, so the end result of her review will result in turning over all non-privileged content on Rudy’s devices from that 28-month period.

That means if the person who created the memo forwarded as part of document 4708 sent it to Rudy on one of the devices that were seized, then the underlying memo would be included in the Special Master review.

We don’t know how DOJ has prioritized this review. We know only what is in this and earlier reports, which I’ve captured in this table.

Jones did an initial review, covering the entire timeframe (that is, post-dating January 1, 2018) of 7 devices, from which she found 3 documents about which she had some question, but ultimately deemed them privileged and turned over 2,000 other items.

Then, seemingly in parallel, she did a review of Device 1B05 (a cell phone) and 8 other devices. For the 8 devices, her review covered only the period of Rudy’s Ukrainian influence peddling. But for Device 1B05, Jones’ review covered the full 28-month period, meaning it would include any texts or messages sent on or pertaining to January 6.

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.

Device 1B05 was the only one for which Jones disputed the original privilege claims made by Rudy and his attorney Robert Costello. Of 40 items, Jones agreed with their privilege claim. Of 19, Costello withdrew the claim. And of 37, Jones told Costello she disagreed, after which Costello decided not to fight her ruling.

While these discussions were going on, Judge Oetken issued a ruling that, if Rudy wanted to challenge Jones’ rulings, they’d have to make their legal arguments (but not the content of the contested communications) public. During the Michael Cohen privilege review, such a decision led Cohen and Trump to drop privilege claims, probably over the crime-fraud excepted hush payment communications, and that may be what happened here.

Whatever happened, we know that, with the exception of 43 items, any January 6-related communications that were on half of the 16 phones seized from Rudy would have been turned over to the FBI for a scope review. To be clear, investigators wouldn’t be able to access those comms unless they got a separate warrant for them, but we would never know (short of an indictment relying on them) if they had.

None of that guarantees that the memo forwarded with Eastman’s document 4708 is in DOJ possession. If the person who wrote it emailed it, it would not necessarily be on the seized devices. (Though if DOJ had a January 6 warrant for Rudy’s phones, they presumably would have obtained one for his email and iCloud as well, as they did with his Ukraine investigation.) If the person delivered it by hand, it would not be on the devices. And it’s possible that Costello made a more compelling argument than Eastman did that the sender was covered by a privilege claim tied to Trump.

Steve Bannon

We don’t know what kind of wild privilege claims Robert Costello was making as part of the privilege review of Rudy’s devices (which started in earnest in September 2021). But we do know what kind of wild privilege claims Robert Costello was making for another of his clients, Steve Bannon, in discussions of how to respond to a subpoena from the January 6 between October 5 and 19, 2021. He provided those details (including two 302s from interviews at which FBI agents were present) in a bid to claim he — Costello — was unfairly targeted as part of DOJ’s investigation of Bannon’s contempt (see this post for details).

In Costello’s interviews, he was all over the map about whether Bannon could invoke Executive Privilege. He said that according to some OLC opinions, Bannon did not have to be a government employee to receive “protections” under EP, and that “TRUMP had the right to claim it for BANNON.” He said that 10 of the 17 items on the Jan 6 subpoena were covered by EP. He admitted EP did not cover a request for comms involving Scott Perry and “it would take a ‘creative argument’ to apply Executive Privilege to that particular item.” He admitted, too, that comms with the Proud Boys wouldn’t be covered by EP if such communications existed. He said that EP claims should be worked out between Trump and the Committee. He said he had told Bannon that Bannon could not invoke EP because “that authority belongs to the President.”

Ultimately, though, Costello admitted that Trump’s attorney Justin Clark never reviewed anything Bannon might have claimed privilege over and refused several requests to contact the Committee himself about EP.

COSTELLO did not provide any documents to attorneys representing former President Trump for review to determine if Executive Privilege covered the documents. At the time, COSTELLO did not know what attorneys were representing others who had received Select Committee subpoenas.

COSTELLO asked CLARK to reach out to the Select Committee and to directly express to the Select Committee what COSTELLO and BANNON were confused about in regards to Executive Privilege. COSTELLO estimated he requested this of CLARK approximately two or three times; however, CLARK did not reach out to the Select Committee. COSTELLO did not have prior knowledge of the lawsuit of former President TRUMP.

[snip]

CLARK would not identify for COSTELLO what would be covered under Executive Privilege and that CLARK left that determination up to those who had received the Select Committee subpoena. CLARK also refused to reach out to the Select Committee on behalf of COSTELLO or BANNON.

[snip]

COSTELLO did not provide or offer any documents to attorneys representing former President TRUMP to review for Executive Privilege.

In a follow-up, Costello effectively admitted there was no concrete record that Trump had invoked EP.

Costello stated that Justin Clark (Clark) was trying to be intentionally vague; however, Costello was clear former President Donald Trump (President Trump) asserted executive privilege with regard to Bannon.

When DOJ asked Costello for a letter indicating that Clark had invoked EP for Bannon, he had nothing specific.

Then there was the matter of Bannon’s podcasts. Costello ceded they weren’t covered by privilege, but only because they were public (!!!!), and appears to have just assumed the Committee would go get them on their own.

With regards to responding to the Select Committee’s request for documents, COSTELLO planned to send a link to the website hosting all of BANNON’s publicly accessibly podcasts.

[snip]

The podcasts requested could be obtained by the Select Committee off the internet, and since they were in the public domain, the podcasts also were not covered by Executive Privilege.

[snip]

COSTELLO admitted he did not have a good answer as to why he didn’t disclose to the Select Committee that the podcasts were in the public domain and BANNON was not required to respond to that particular item. COSTELLO believed the particular requests regarding the podcasts was just a “bad request” by the Select Committee.

The most telling piece of advice given by the lawyer Bannon shares with Rudy — one that goes to the heart of what Costello might have done in discussions taking place at the same time about privilege with SDNY — was that Bannon, who is not a lawyer, could claim attorney-client privilege over items requested in item 17 of the subpoena, which asked for,

Any communications with Rudolph Giuliani, John Eastman, Michael Flynn, Jenna Ellis, or Sydney Powell about any of the foregoing topics.

Costello claimed these such communications, including those with Mike Flynn or Sidney Powell, would be covered by attorney-client or work product privilege.

COSTELLO believed that the request listed as number 17 involved information over which BANNON could assert attorney-client privilege given it included a request for communications between BANNON and RUDOLPH GIULIANI, JENNA ELLIS, and other attorneys who were working for former President Trump.

[snip]

COSTELLO believed item 17 was covered by attorney-client privilege or by attorney work product protections. Even though MICHAEL FLYNN was not an attorney, he was present during attorney-client-protected discussions. Those particular attorneys represented former President TRUMP and CLARK informed COSTELLO not to respond to item 17.

There’s so much crazy-train about this last bit. After stating over and over that Clark refused to invoke EP, Costello then admitted that Clark wanted Bannon to withhold communications involving Rudy, Eastman, Powell, and Mike Flynn. Costello admitted Flynn (like Bannon) was not a lawyer, but was still prepared to claim attorney work product over comms with him anyway. But the thing I can’t get enough of is that Rudy’s lawyer Robert Costello was claiming that Sidney Powell — who, in a written statement issued on November 22, 2020, Trump’s lawyer Rudy Giuliani made very clear did not represent Donald Trump — represented Donald Trump.

Still, all this crazy train amounts to non-lawyer Bannon, advised by the lawyer he shares with Rudy, making the same claim that lawyer John Eastman had made regarding “war” planning leading up to January 6; that such documents were covered by work product privilege. That’s the same claim that Judge Carter just applied a crime-fraud exception for.

I’m guessing Costello attempted to make similar claims with Barbara Jones in SDNY and I’m guessing that Jones pointed out that Bannon and Flynn aren’t lawyers and Rudy was quite clear that Powell was not Trump’s lawyer. In other words, I think it likely that some of the claims Costello withdrew are similar to those that Eastman failed with. If that’s right, it increases the chance Document 4708 would be turned over to DOJ.

Sidney Powell

And then there’s the Kraken lady.

We don’t know the full scope of the grand jury investigation into Powell, aside from the fact that Molly Gaston, who is supervising the Bannon prosecution, is also involved in it (which means she’d have visibility on the overlap between the two, and would know that Trump’s lawyer tried to withhold comms involving Powell without invoking privilege). The subpoena requests, at least, cover the finances of her Defending the Republic “non-profit.”

The federal probe, which has not been previously reported, is examining the finances of Defending the Republic, an organization founded by Powell to fund her “Kraken” lawsuits to overturn the 2020 election, the sources said.According to two of the people familiar with the matter, a grand jury was empaneled, and subpoenas and documents requests have gone out to multiple individuals as recently as September.

The investigation, then, would cover activities that are tangential to the January 6 subpoenas to Bannon and Eastman.

But the fact that there’s a grand jury investigation into Powell makes it exceedingly likely DOJ got a warrant for her emails.

She has a valid privilege claim covering communications with Mike Flynn for some of this period. But thanks to Rudy’s public statement, she has no privilege covering her actions for Trump.

Chances are pretty good she received a copy of the memo for Rudy too (if the memo wasn’t written by someone with closer ties to Powell than Rudy).

I think it’s likely that DOJ has multiple copies of document 4708, probably via Rudy, Bannon, and Powell, if not Eastman himself (getting it from Chapman U would always have been easy to do with a gag, and would be still easier now).

What’s clear, though, is that the lawyer that Rudy and Bannon share is making privilege claims every bit as absurd as the ones Carter just rejected, and with Bannon, there’s no question about privilege claims.

Posts

Rudy Giuliani Appears to be Claiming Privilege Over Hundreds of Items He Already Agreed Were Not

“Nonzero:” On Evidence-Based Investigations and Rudy Giuliani’s Devices

Barbara Jones Rules Project Veritas Was Not Engaged in Journalism When Brokering Ashley Biden’s Stolen Diary

Special Master in Project Veritas Investigation Reviewed Crime-Fraud Submissions in December

SDNY Closes Ukraine Influence Peddling Investigation into Rudy

DOJ Has at Least One Card Left to Play: Congress’ Instinct for Self-Preservation

The “Subject” of Robert Costello’s Declination

Crime in the Era of Encrypted Apps: The Relationship between the DOJ and January 6 Investigations into Fake Electors

Tick Tock: SDNY Tells Project Veritas, Again, To Wait Until James O’Keefe Is Indicted to Complain

Four Rudy Giuliani-Related Privilege Reviews: DOJ Likely Already Has a Version of Document 4708

John Eastman

Rudy Giuliani

Steve Bannon

Sidney Powell

Interesting links

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