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In Rudy Giuliani Affidavit, SDNY Hung Up the Perfect Phone Call

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Consider this: The April 21, 2021 warrant affidavit showing probable cause for the search of Rudy Giuliani’s home, office, and devices did not mention the Perfect Phone Call between Donald Trump and Volodymyr Zelenskyy.

It could have done so. Earlier warrant affidavits targeting Lev Parnas and Igor Fruman, starting with a bunch obtained on October 21, 2019, included it.

On July 25, 2019, President Trump spoke to Ukrainian President [Zelenskyy]. According to a memorandum of the call, which the White House released publicly, President Trump noted that “[t]he former ambassador from the United States, the woman, was bad news and the people she was dealing with in the Ukraine were bad news.” He also praised a “very good prosecutor,” which appears to be a reference to [Lutsenko,] who was still in place at that time following [Zelenskyy’s] election but subsequently removed from office, or possibly [Shokin,] the former prosecutor.

While SDNY did not release the affidavit for a December 10, 2019 warrant focused exclusively on the Foreign Agent charges, this same reference did appear in an affidavit to obtain the contents of Lev Parnas’ Instagram account the same day.

In context of the potential FARA charges tied exclusively to the firing of Marie Yovanovitch, the paragraph showed that Trump had been persuaded by Rudy Giuliani’s lobbying not just that Yovanovitch “was bad news,” but that the prosecutors behind the effort to oust her, Yuriy Lutsenko and/or Viktor Shokin, were “very good.”

Moreover, the paragraph is particularly relevant evidence in the affidavit targeting Rudy. Far more specifically than the (much earlier) affidavits targeting Lev Parnas, the Rudy affidavit describes that Rudy lobbied Trump to fire Yovanovitch at least three times (the affidavit clearly identifies two instances: once on February 16, 2019, and again on March 22) and lobbied Mike Pompeo at least twice (once on February 8 and again when the White House forwarded his packet of disinformation in March) before he and Parnas turned to a press campaign involving John Solomon to get her ousted.

Yet the only public affidavit targeting Rudy, unlike several targeting Lev Parnas, excluded the paragraph showing the extent of Rudy’s influence.

There may be a perfectly banal explanation, such as an attempt, relatively early in Merrick Garland’s tenure, to minimize the extent to which this was about Trump personally. Or, the Perfect Phone Call might embody some of the uncertainty, noted explicitly in the affidavit, about whether Rudy was targeting Yovanovitch to get contracts with Lutsenko, or whether he was doing it only to get disinformation, to benefit Trump, on Hunter Biden. Given the high likelihood that data seized in this search was also used in other, undisclosed investigations into Rudy — DOJ may not yet have had a January 6 warrant targeting Rudy, but in June 2021, DOJ took overt steps in the investigation into an anti-Hunter Biden film that Rudy plotted — the silence about the Perfect Phone Call may simply reflect the boundary line between investigative prongs. That is, maybe the Perfect Phone Call appears in another affidavit.

The anti-Hunter film was, reportedly, an investigation into possible foreign support. As this table, which compares the scope of investigation in three warrants for substantially the same Foreign Agent investigation, shows, the funding of Rudy’s shenanigans shifted focus over the course of the investigation.

The warrants include:

  • October 21, 2019, 19 MJ 9832, obtained days after Parnas’ arrest, as SDNY obtained warrants to expand the scope of the investigation to incorporate its expanding Foreign Agent focus
  • December 10, 2019, 19 MJ 11500, obtained days after Rudy met with Andrii Derkach, which would have been a natural follow-on investigation to the Parnas investigation, but which Barr moved to EDNY to protect Rudy’s ability to solicit dirt from Russian agents to help Trump’s 2020 campaign
  • April 21, 2021, 21 MJ 4335, obtained on Lisa Monaco’s first day as Deputy Attorney General, when SDNY finally obtained approval for warrants targeting Rudy’s home and devices

In October 2019, DOJ wasn’t looking closely at how the Ukraine caper was funded. In December 2019, it made up two bullets of the warrants, permitting the seizure of:

  • Evidence of any funds sent into any account controlled by or associated with [redacted] or Giuliani, or any instructions to send such funds. (c)
  • Evidence of money, actions, or information requested by, or offered or provided to Parnas, Fruman, Giuliani, or [Toensing] by any Ukrainian national in connection with efforts to remove [Yovanovitch], including but not limited to any Ukrainian investigation of [Burisma Holdings] Ltd., [Hunter Biden], or potential interference in the 2016 U.S. presidential election. (e)

That December 2019 focus on funding may have reflected details about Lev Parnas that SDNY had only just discovered. In an unsuccessful bid to have Parnas detained pretrial submitted the day after DOJ obtained that December 10 warrant targeting Lev Parnas, SDNY laid out what it had learned about the funding of the Ukraine caper.

Parnas poses a significant risk of flight for several reasons, the chief among which are his considerable ties abroad and access to seemingly limitless sources of foreign funding. Parnas has extensive and significant international ties, particularly in Ukraine, the country of his birth. Over the past two years, Parnas traveled repeatedly to Ukraine, and met with numerous Ukrainian government officials, including officials at the very highest level of government. More broadly, Parnas has traveled abroad more than twenty times over the past four years, including on a nearly monthly basis in 2019. Parnas took circuitous travel routes that obscured his final destination, such as by departing the U.S. for one country, but returning from a different country on a different airline. Parnas traveled internationally by private jet as recently as this year; bank account records from Account-1 show that Parnas spent more than $70,000 on private air travel in September 2019 alone.

[snip]

In addition, Parnas’s close ties abroad include connections to Russian and Ukrainian nationals of nearly limitless means, including [Andrey Muraviev] and a Ukrainian oligarch [Dmitry Firtash] living in Vienna who is currently fighting extradition to this country. Parnas has proven adept at gaining access to foreign funding: in the last three years, Parnas received in excess of $1.5 million from Ukrainian and Russian sources. In sum, given Parnas’s significant, high-level connections to powerful and wealthy Ukrainians and at least one Russian national, he could quickly and easily flee the United States for Ukraine or another foreign country, and recoup the security posted to his bond. It is difficult to overstate the extreme flight risk that Parnas poses.

[snip]

  • Between August and October 2019, Parnas received $200,000—not $50,000, as he told Pretrial Services—from the Law Firm into Account-1, which was held in Svetlana Parnas’s name, in what appears to be an attempt to ensure that any assets were held in Svetlana’s, rather than Lev’s, name.5 A portion of this money existed in Account-1 at the time that Parnas submitted his financial affidavit, and, to the Government’s knowledge, does so today, underscoring that Parnas continues to mislead the Government and the Court about his financial condition.
  • Parnas failed to disclose, in describing his income to the Government and Pretrial Services, the fact that in September 2019, he received $1 million from a bank account in Russia into Account-1. While the majority of that money appears to have been used on personal expenses and to purchase a home, as discussed below, some portion of that money existed in Account-1 at the time Parnas submitted his financial affidavit.
  • At the time of his arrest, Parnas had at least $200,000 in an escrow account, in connection with his intended purchase of a property located in Boca Raton, Florida, which was listed for sale at approximately $4.5 million. The escrow account was funded with $200,000 from Account-1 in September 2019. Parnas did not disclose this asset (either the property or the funds in the escrow account) to either Pretrial Services or the Government. It is unclear whether Parnas proceeded with this real estate purchase or received the funds back from the escrow account.

In an appearance on Michael Cohen’s podcast last month, Parnas addressed how various Ukrainian, Russian, and American oligarchs were funding his and Rudy’s efforts; he says it’ll also appear in his forthcoming book.

The warrant targeting Rudy 17 months later doesn’t reveal what SDNY had learned about the funding in the interim, nor does it sustain the focus on how this was all funded. It states with some certainty that in spite of two rounds of discussions of retainer agreements with Lutsenko and others, Rudy never got any money from them.

Based on my involvement in this investigation and my review of text messages, it appears that Giuliani was referring to the execution of [redaction] retainer agreement and the wiring of funds. However, based on my review of bank records, it does not appear that [redacted] wired funds to Giuliani at that time, or any subsequent time.

As NYT emphasized in their report on these warrants, the later warrant does describe that Rudy needed the money.

6 Based on my review of a financial analysis prepared based on bank records and public reports, it appears that around this time, Giuliani had a financial interest in receiving a retainer agreement from [redacted] Specifically, in May 2018, Giuliani left his former law firm and its substantial compensation package. Based on my review of a financial analysis of bank records that have been collected to date (which may not include all of Giuliani’s checking and credit card accounts), on or around January 25, 2018, Giuliani had approximately $1.2 million cash on hand, and approximately $40,000 in credit card debt. By contrast, on or around January 25, 2019, right before he met with [redacted] Giuliani had approximately $400,000 cash on hand in those same accounts and approximately $110,000 in credit card debt. By on or around February 16, 2019, his account balances had dropped to approximately $288,000 and his credit card debt remained over $110,000.

Perhaps because of what SDNY claimed were Parnas’ efforts to obscure his travel, the December 2019 warrant (for which, remember, it did not release the affidavit) added a bullet point, seemingly an afterthought unmarked by a letter, authorizing seizure of evidence that the men were hiding meetings with Ukrainians.

Evidence of efforts or attempts to conceal meetings with individuals acting on behalf of or associated with any Ukrainian national or government official. (no letter)

By contrast, the April 2021 affidavit targeting Rudy was interested in one single trip: His February 2019 trip, with Parnas, to Warsaw.

Evidence relating to a trip by Rudolph Giuliani to Poland in February 2019.(5)

As the affidavit describes, there was good reason to believe Rudy’s public claims about the trip — made in the days after the Perfect Phone Call was released — were lies, because immediately after the meeting, Rudy drafted a retainer shortly after the meeting and started lobbying Trump and Pompeo.

7 Based on my review of public reporting, I have learned that according to an article published on September 29, 2019 in Reuters, Giuliani admitted that he met [Lutsenko] in Warsaw in February 2019 after first meeting him in New York in January, but that the meeting with [redacted] in Warsaw was “really social . . . I think it was either dinner or cigars after dinner. Not opportune for substantive discussion.” However, this does not appear to be accurate, as described herein, Giuliani circulated a draft retainer agreement between [2 words redacted] and [redacted] (a firm owned by [Toensing] and her husband, [Joe DiGenova]) only five days after meeting with [redacted] and communicated with Parnas and [redacted] about lobbying [Pompeo] and Trump to remove [Yovanovitch] on the same day, and in the days following, his meeting with [redacted].

The reference to Lutsenko in that Reuters story is minor; far more of the story focuses on who paid for Rudy’s galivanting — again, a topic dropped in the later known warrant.

One of the key questions is who financed Giuliani’s globe-trotting as he pursued unsubstantiated allegations that Biden had tried to fire Ukraine’s then chief prosecutor, Viktor Shokin, to stop him investigating an energy company on which his son Hunter served as a director.

“Nobody pays my expenses,” Giuliani said in an interview with Reuters on Friday. “What does it matter if I’m getting paid for it. Isn’t the real story whether he (Biden) sold out the vice presidency of the United States, not whether I got paid for it?”

The singular focus on that Warsaw meeting — a meeting that took place at an event designed to undermine Obama’s Iran Deal, which Rudy attended in conjunction with MEK (former NJ Senator, Robert Torricelli, with whom John Solomon has a past, also attended with MEK) — is all the more interesting given the temporal scope of the warrant.

The other two warrants I adress here were dictated by dates of collection. Because the October 21 warrant authorized an expanded search of materials obtained months earlier, its temporal scope necessarily ended at the collection date, May 16, 2019. Because the December 10 warrant authorized an expanded search of materials seized from the search of Parnas and Fruman’s residences (primarily Parnas’ — by this point, SDNY seemed to be scrutinizing Parnas far more closely than it did Fruman), its temporal scope necessarily ended on that collection date, October 9, 2019.

But the Rudy warrant extended long past the last overt act, the firing of Yovanovitch, described in the warrant, to December 31, 2019. Here’s how the FBI justified that:

To the extent materials are dated, this warrant is limited to materials created, modified, sent, or received between August 1, 2018, and December 31, 2019. Materials going back to approximately August 2018 are relevant to understand Giuliani’s relationship with Parnas and information he was provided in the fall of 2018 relating to, among other things, Ambassador [Yovanovitch] and Ukraine. Materials created, modified, sent, or received after approximately May 2019, when the Ambassador was removed from her post, through the end of December 2019, during which time Giuliani traveled to Europe to meet [Lutsenko] with are relevant because based on my review of the Prior Search Warrant Returns, it appears that Giuliani continued to make public statements about Ukraine and the Ambassador.

Thus, it rationalized extending the warrant’s temporal scope through December 2019 — a temporal scope that would include the trip for the anti-Hunter Biden documentary, on which Rudy again met Lutsenko, but also met known Russian asset Andrii Derkach and others who would later be deemed Russian assets — based on Rudy’s continued focus, vaguely, on Ukraine (as well as Yovanovitch).

But it’s not clear whether FBI would be able to access details of Rudy’s meeting with Derkach, as opposed to Lutsenko, with this warrant. The long redaction in this bullet point shields who else, in addition to Parnas and Lutsenko, was included in the scope of the known warrant.

In other words, though the temporal scope of the warrant would permit FBI to review information about Rudy’s later meetings with Lutsenko, in association with which trip Rudy also met a series of Russian assets, nothing unredacted in the warrant permitted FBI to seize information about that later meeting (or about the anti-Hunter Biden documentary).

For that matter, nothing unredacted in the April 2021 warrant explicitly permits the FBI to seize information about Rudy’s attempts to dig up disinformation targeting Hunter Biden and his father, even though the warrant affidavit likely mentions such efforts at more than twelve times (one, two, three, four, five, six, seven, eight, nine, ten, eleven, twelve).

Still, as I’ve noted repeatedly, by the time Judge Oetken approved the Special Master process that Rudy himself had demanded, Special Master Barbara Jones was instructed to review all content post-dating January 1, 2018, a temporal scope significantly broader than the one laid out in the warrant. And according to her reports, while for some devices she focused more nearly on the timeframe of the Ukraine caper, those she reviewed first, she reviewed through the date of seizure.

We still know just a fraction of the story about how Bill Barr obstructed the investigation into Rudy Giuliani’s Ukrainian influence peddling — and the degree to which that let Rudy get rid of phones before the investigation would have otherwise developed (for example, the warrant describes that Rudy replaced a phone used with his main phone number on the date the House started subpoenaing records in advance of impeachment). That is, even though SDNY took aggressive investigative steps on Lisa Monaco’s first day as Deputy Attorney General, it was likely already too late.

Update: Back in real time, I posited that the first time Rudy pitched Mike Pompeo on firing Marie Yovanovitch was done while in Trump’s presence.

Timeline

Below, every bullet is a known warrant. The ones not linked were described in a passage that failed to be fully redacted in a Lev Parnas filing.

  • January 18, 2019, 19 MJ 1729: Yahoo and Google content

May 15, 2019: Marie Yovanovitch firing public

  • May 16, 2019, 19 MJ 4784: iCloud content
  • August 14, 2019, 19 MJ 7593: Yahoo and Google content since January, with expanded focus
  • August 14, 2019, 19 MJ 7594: Unknown warrant
  • August 14, 2019, 19 MJ 7595: Existing Yahoo and Google content, with expanded focus

September 25, 2019: Disclosure of Perfect Phone call

October 9, 2019: Lev Parnas and Igor Fruman arrested

  • October 17, 2019, 19 MJ 7595: Actual authorization of the warrant approved in August
  • October 21, 2019, 19 MJ 9829: iCloud content since May
  • October 21, 2019, 19 MJ 9830: Unknown warrant
  • October 21, 2019, 19 MJ 9831: Devices from Dulles
  • October 21, 2019, 19 MJ 9832: Existing iCloud content for expanded focus
  • November 4, 2019: Warrant for Rudy’s iCloud
  • November 4, 2019: Warrant for Rudy’s email
  • November 4, 2019: Warrant for Victoria Toensing’s iCloud
  • November 6, 2019: Warrant for Yuriy Lutsenko’s email

December 5, 2019: Rudy meets with known Russian asset, Andrii Derkach

  • December 10, 2019, 19 MJ 11500: Stuff seized from residences for foreign agent focus
  • December 10, 2019, 19 MJ 11501: Instagram
  • December 10, 2019, Warrant for Roman Nasirov’s email
  • December 13, 2019, Warrant for Victoria Toensing’s email

December 14, 2019: Barr aide texts him: “Laptop on way to you”

January 3, 2020: Barr establishes dedicated channel to ingest Rudy’s dirt

January 17, 2020: Jeffrey Rosen makes Richard Donoghue a gatekeeper for all Ukraine-related investigations

  • February 28, 2020: iPhone of Alexander Levin
  • March 3, 2020: iPad of Alexander Levin
  • March 20, 2020, 20 MJ 3074: Fruman iCloud content obtained with October 21, 2019 warrant to cover earlier periods

June 20, 2020: Barr fires Geoffrey Berman

November 2020: SDNY denied authority to seek devices of Rudy Giuliani

January 2021: SDNY denied authority to seek devices of Rudy Giuliani

  • April 13, 2021: Cell site data for Rudy and Toensing

April 21, 2021: Lisa Monaco sworn in

  • April 21, 2021, 21 MJ 4335: Rudy’s office, residence, and devices
  • April 21, 2021: Victoria Toensing iPhone

Perjury Trapped: Rudy Giuliani’s Sync Sink

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As I noted here, I’m just beginning to go through the warrants from SDNY’s Lev Parnas and Rudy Giuliani investigation the NYT liberated.

I want to start with a very minor point about the apparent inconsistencies between what SDNY found when they conducted searches on Rudy’s cloud and what Rudy claimed — purportedly under penalty of perjury — before Beryl Howell.

In the Ruby Freeman case — the first one, not her renewed suit to enjoin him from continued lies about her — Rudy claimed that he didn’t need to separately search his messaging accounts, because his phones were all synced to his iCloud.

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 SDNY, when they searched his iCloud back in 2019, discovered that known messages were not there.

On or about November 4, 2019, the USAO and FBI sought and obtained from the Honorable J. Paul Oetken, United States District Judge for the Southern District of New York, a warrant (the “November 4 Warrant”) for records in iCloud accounts belonging to Giuliani and [Victoria Toensing].

[snip]

As discussed above, on November 4, 2019, the FBI and USAO sought and obtained a search warrant for, among other things, Giuliani’s iCloud account. However, the iCloud did not contain many of the text messages outlined above with Parnas and [Fruman] during the December 2018 to April 2019 time frame. Based on my training and experience, as well as my review of records provided by Apple, I believe the iCloud account did not contain text communications from early 2019 because Giuliani did not backup that content, or removed it from the backup, and not because it does not exist. Indeed, for the reasons set forth below, including Giuliani’s public statement that he has retained potentially relevant communications on his cellphones, there is probable cause to believe that, unlike the iCloud account, evidence of the Subject Offenses continue to be maintained on the Subject Devices.

But, according to Robert Costello, in a declaration that — unlike Rudy’s — was actually notarized and so worth something if you ignore the obvious spin in his representations of what SDNY told him — when SDNY reviewed at least seven of those devices, they were corrupted.

Rudy’s messaging wasn’t in his iCloud when SDNY looked in 2019. And it wasn’t in his phones when SDNY looked in 2021. And yet this year, he claimed the content in both places would be the same.

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

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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.

Rudy Giuliani Claims He’s Shooting Blank Documents

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Ruby Freeman and her daughter Shaye Moss have, as Beryl Howell invited them to do, moved to compel Rudy Giuliani to comply with discovery in their defamation lawsuit. The two 2020 Georgia election workers sued for the damage caused by the lynch mob Rudy summoned by falsely claiming they were attempting to steal votes after he saw a video showing Moss passing her mother a ginger mint.

The motion and all its exhibits are here.

What seems to be happening is that Rudy, having had his phones seized in 2021 and successfully avoided — thus far — charges for his Ukraine influence-peddling, is deliberately slow-walking discovery here to avoid identifying any devices or records that prosecutors can use in that investigation, the Georgia investigation, or Jack Smith’s January 6 one, all while sustaining a story that is already starting to fall apart.

As described in the motion to compel, Rudy’s non-compliance has included:

  • Refusing to turn over any phone or financial records
  • Refusing to explain what accounts and devices he has included in his searches
  • Failing to search for texts and messaging apps from the phones seized in 2021
  • Providing discovery based on much earlier requests from the January 6 Committee and Dominion’s lawsuit against him, rather than the requests from Freeman’s lawyers
  • Providing documents on Hunter Biden along with one Pentagon City Costco receipt
  • Others — like Bernie Kerik and Christina Bobb — similarly refusing to comply
  • Claiming, then disclaiming, reliance on “unknown GOP operatives” for the false claims made about Freeman
  • Refusing to describe how he became aware of the surveillance footage on which he based his false claims about Freeman and Moss

As a reminder, back on April 21, 2021, DOJ obtained a warrant for around 18 of Rudy’s phones in conjunction with the investigation into Rudy’s Ukrainian influence peddling that Bill Barr had successfully obstructed. By September of that year, DOJ had convinced Judge Paul Oetken to have Special Master Barbara Jones to review all the contents on his phones, not just that pertaining to the Ukraine warrants. Since then, I’ve been arguing that DOJ could — and at this point, almost certainly has — obtained that content for use in the January 6 investigation.

Dominion sued Rudy back in 2021. The January 6 Committee subpoenaed Rudy in January 2022 and interviewed him in May 2022. Those are the discovery requests on which Rudy is attempting to rely in this suit, rather than doing searches specific to the requests made by Freeman’s lawyers.

But after May 2022, Rudy’s exposure in Georgia went up. In addition to Freeman’s lawyers filing their amended complaint on May 10, 2022, Fani Willis convened her grand jury on May 2, 2022, subpoenaed Rudy to testify in June 2022, and he testified in August. It is virtually certain that Rudy gave answers to Willis — at the very least, about what he knew of Trump’s call to Brad Raffensperger on January 2 — that subsequent testimony has since disputed and on which topic he has since amended his interrogatory response.

The materials in this motion reveal that Rudy’s lawyer in this matter (Joe Sibley — who represented Christina Bobb in a J6C deposition that conflicts with Rudy’s answers here, though Robert Costello was present for Rudy’s March deposition) at first promised thousands of documents to Freeman’s lawyers, while claiming that most documents would be unavailable because of the Special Master process tied to the Ukraine investigation. Last July 12, Rudy provided 1,269 documents he had also turned over to Dominion’s much earlier request, which Freeman’s lawyers describe as, “his first and only substantial document production to date.”

Then, on August 3, Robert Costello made a showy announcement that SDNY had ended the Special Master process, which is not the same thing as getting a letter that he’s not a subject of that investigation anymore. Shortly thereafter, Freeman’s attorneys pointed out that the excuse Rudy had been using to limit his discovery in this case was no longer operative. He had the phones that — he claimed — included all his communications from the period during which he had started the conspiracy theories about Freeman.

After that showy announcement from Costello on August 3, things changed dramatically. In September, Sibley told Freeman’s lawyers there were 18,000 documents relevant to discovery in the materials seized from his phone. A month later, he said there were 400. In October, Rudy turned over 177 of those documents, 51 of which were blank. Since then, Sibley seems to have provided answer after answer that amounted to throwing up his hands when describing the state of Rudy’s discovery.

Rudy is quite literally attempting to claim he can only shoot blank documents in hopes of getting through this discovery process.

In his March 2023 deposition, Rudy claimed that the physical phones returned by SDNY — which he says only happened in August — were “wiped out.” What actually seems to have happened is that he hasn’t figured out how to access the content saved to the cloud by discovery vendor TrustPoint, and may not have tried to access the phones themselves, which I believe Costello had publicly claimed to have been returned earlier last year.

But far and away the best way to understand his answers are that, first of all, he and Bobb gave materially inconsistent answers while being represented by Sibley, most notably on the topic of whether they participated in the Brad Raffensperger call, which Bobb said they did and Rudy originally claimed — and presumably claimed to Fani Willis’ grand jury — that they had not.

Just as importantly, Rudy may be aware of both messaging apps and phone accounts that he’s not certain prosecutors in SDNY, Georgia, or DC have identified, so he’s refusing to be forthcoming about all the devices and phone accounts he used. There are probably communications from his phones that Costello successfully claimed were privileged during the SDNY Special Master process, which would be obviously crime-fraud excepted in any proceeding before someone who knows the January 6 investigation well. Prosecutors in both SDNY and DC will be able to tell after a quick review of exhibits included with this motion to compel whether Rudy’s claims about the status of the phone content from TrustPoint are accurate.

And therein lies the risk of the game that Rudy is playing.

This would be an obviously bullshit response before any judge, including Carl Nichols (who is presiding over the much more leisurely Dominion suit against Rudy).

But by luck of the draw, he’s attempting this stunt before Beryl Howell, who even on good days does not suffer fools at all, much less gladly, and who until just a month ago was the Chief Judge presiding over all the grand jury proceedings in DC, including the January 6 investigation. She’s one of just two or three judges who knows whether DOJ asked for and obtained a warrant to get the stuff from Rudy’s phones in SDNY. If they did (and I’d bet a very good deal of money they did), she would have seen an affidavit explaining in what form DC USAO understood that phone content to be, and if they did, she has likely overseen discussions about any further attorney-client protections DOJ had to adhere to. If DC USAO obtained warrants for other cloud content, she might also know about any accounts that Rudy is not disclosing to Freeman, including those whose email and phone accounts Rudy consistently used as a proxy. She likely has a sense of how many phone accounts DOJ has identified for Rudy, none of the call records of which would be subject to attorney-client protection. She may know of other aliases that Rudy used in his assault on the election.

Rudy is pulling this contemptuous stunt in front of the one judge who may know the extent to which he’s bullshitting.

Which may be why, at a few points in Freeman’s Motion to Compel, her attorneys note that they’re only asking for modest relief, basically just leverage to get Rudy to actually answer the questions, as well as attorney fees for their time he has wasted.

But Judge Howell? Well, if she wants to use her discretion to provide expanded relief, Freeman’s lawyers say, they’d be open to that too.

The relief Plaintiffs seek in this Motion is narrow, while recognizing that the Court in its discretion may enter additional forms of relief, including sanctions. Plaintiffs reserve all rights relating to seeking expanded forms of relief in the future.

At this point, there are at least two criminal investigations into Rudy and two civil suits — January 6, Georgia, Dominion, and this suit. Even before reviewing his J6C transcript, it’s easy to identify plenty of ways his evolving answers here, amended in part because of inconsistent testimony given before the J6C, conflict with what he must have answered before the Georgia grand jury, which could start issuing indictments any day.

Juggling all that legal exposure would be difficult for a sober, organized man with little real legal exposure.

For Rudy, though, this insane approach may be, at best, a futile attempt to limit the damage this civil case can do to his criminal exposure.

How Richard Barnett Could Delay Resourcing of the Trump Investigation

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In the rush to have something to say about what Special Counsel Jack Smith will do going forward, the chattering class has glommed onto this letter, signed by US Attorney for Southern Florida Juan Gonzalez under Jack Smith’s name, responding to a letter Jim Trusty sent to the 11th Circuit a day earlier. Trusty had claimed that the Special Master appointed to review the contents of Rudy Giuliani’s phones was a precedent for an instance where a judge used equitable jurisdiction to enjoin an investigation pending review by a Special Master.

The question raised was whether a court has previously asserted equitable jurisdiction to enjoin the government from using seized materials in an investigation pending review by a special master. The answer is yes. The United States agreed to this approach – and the existence of jurisdiction – in In the Matter of Search Warrants Executed on April 28, 2021, No. 21-MC-425-JPO (S.D.N.Y.) (involving property seized from Hon. Rudolph W. Giuliani) – and, under mutual agreement of the parties, no materials were utilized in the investigation until the special master process was completed. 1 See, e.g., Exhibit A. The process worked. On November 14, 2022, the United States filed a letter brief notifying the District Court that criminal charges were not forthcoming and requested the termination of the appointment of the special master. See Exhibit B. On November 16, 2022, the matter was closed. See Exhibit C.

As the government noted, none of what Trusty claimed was true: the government itself had sought a Special Master in Rudy’s case and Judge Paul Oetken had long been assigned the criminal case.

That is incorrect. As plaintiff recognizes, the court did not “enjoin the government,” id.; instead, the government itself volunteered that approach. Moreover, the records there were seized from an attorney’s office, the review was conducted on a rolling basis, and the case did not involve a separate civil proceeding invoking a district court’s anomalous jurisdiction. Cf. In the Matter of Search Warrants Executed on April 9, 2018, No. 18-mj-3161 (S.D.N.Y.) (involving similar circumstances). None of those is true here.

The government could have gone further than it did. The big difference between the Special Master appointed for Rudy and this one is that Aileen Cannon interfered in an ongoing investigation even though there was no cause shown even for a Special Master review, and indeed all the things that would normally be covered by such a review (the attorney-client privileged documents) were handled in the way the government was planning to handle them in the first place.

Josh Gerstein had first pointed to the letter to note that both Gonzalez, the US Attorney, and Smith, the Special Counsel, had submitted a document on Thanksgiving. The claim made by others that this letter showed particular toughness — or that that toughness was a sign of Smith’s approach — was pure silliness. DOJ has been debunking false claims made about the Special Master reviews of Trump’s lawyers since August. That they continue to do so is a continuation of what has gone before, not any new direction from Smith. Indeed, the most interesting thing about the letter, in my opinion, is that a US Attorney signed a letter under the authority of a Special Counsel, the equivalent of a US Attorney in seniority. If anything, it’s a testament that DOJ has not yet decided where such a case would be prosecuted, which would leave the decision to Smith.

A more useful place to look for tea leaves for Jack Smith’s approach going forward is in Mary Dohrmann’s workload — and overnight decisions about it.

Thomas Windom is the prosecutor usually cited when tracking the multiple strands of investigation into Trump’s culpability for January 6. But at least since the John Eastman warrant in August, Dohrmann has also been overtly involved. She’s been involved even as she continued to work on a bunch of other cases.

With two other prosecutors, for example, she tried Michael Riley, the Capitol Police cop convicted on one count of obstructing the investigation into January 6. In addition to Jacob Hiles (the January 6 defendant tied to Riley’s case), she has prosecuted a range of other January 6 defendants, ranging in apparent levels of import:

She has also been involved in several non-January 6 prosecutions:

In other words, on the day Smith was appointed, Dorhman was prosecuting several January 6 defendants for trespassing, several for assault, and a cop convicted of obstructing the investigation, even as she was investigating the former President. Though she hasn’t been involved in any of the conspiracy cases, Dohrmann’s view of January 6 must look dramatically different than what you’ll see reported on cable news.

As laid out above, Dorhmann has been juggling cases since January 6; this is typical of the resource allocation that DOJ has had to do on virtually all January 6 cases. That makes it hard to tell when she started handing off cases to free up time for the Trump investigation. That said, there have been more signs she’s handing off cases — both the Vaughn Gordon and Sean McHugh cases — in the days since Smith was named.

But something that happened in the Richard Barnett case revealed how her reassignments on account of Smith’s appointment have been going day-to-day.

Back on November 21 — three days after Garland appointed Jack Smith — Richard Barnett’s attorneys filed a motion asking to delay his trial, currently scheduled for December 12. Their reasons were largely specious. They want to delay until after the DC Circuit decides whether to reverse Carl Nichols’ outlier decision that threw out obstruction charges in the context of January 6; even Nichols hasn’t allowed defendants awaiting that decision to entirely delay their prosecution. They also want to delay in hopes the conspiracy theories that the incoming Republican House majority will chase provide some basis to challenge Barnett’s prosecution.

On November 4, 2022, a Congressional report from members of the House Judiciary Committee released a one thousand page report based on whistleblowers documenting the politicization and anti-conservative bias in the FBI and the Department of Justice. This historic report will no doubt serve as a road map for probes of the agencies now that the Republicans have gained control of the House of Representatives. Included among the many allegations is the recent revelation that the FBI fabricated schemes to entrap American citizens as false flag operations for political purposes. This devastating report was compounded ten days later on November 14, 2022, by revelations that the FBI was involved in infiltrating other groups of January 6th defendants.

As a third reason, Barrnett’s team noted that one of his lawyers, Joseph McBride (who famously said he didn’t “give a shit about being wrong” when floating conspiracy theories about January 6) had to reschedule a medical procedure for the day of the pretrial conference.

Mr. Barnett’s attorney, Mr. Joseph McBride, was scheduled to have a necessary medical procedure on November 17, 2022, but due to unforeseen complication, the procedure could not be performed and must be rescheduled for December 9, 2022, the day of the pretrial conference and a few days before trial.

Per Barnett’s filing, the government objected to the delay.

Counsel for the Government stated that they will oppose this motion, however, they agreed to stay the deadline for Exhibits, due Monday November 21, 2022, until this motion is resolved. The Government also requested that a status conference be scheduled for that purpose.

According to the government response, Barnett’s attorneys first requested this delay on November 17, the day before Smith was appointed. That’s the day Barnett’s team asked the government whether they objected to a delay.

The government has diligently been preparing for trial. Under the Court’s Amended Pretrial Order, the parties were due to exchange exhibit lists on November 21, 2022. ECF No. 63. On November 17, 2022, however, defense counsel Gross contacted the government to state that the defense again wanted to continue the trial. Defense counsel also indicated that the defense was not prepared to exchange exhibit lists on November 21.

By the time the government filed their response on November 22, four days after Smiths’ appointment, DOJ had changed its mind. DOJ still thinks Barnett’s reasons for delay are bullshit (and they are). But the government cited an imminent change in the prosecution team and suggested a trial a month or so out.

As reflected in the Defendant’s motion, the government initially opposed the Defendant’s request for a continuance. Def.’s Mot. at 1. As discussed below, the government maintains that certain of the Defendant’s proffered reasons do not support a continuance of the trial. Nevertheless, the government has considered all the attendant circumstances and no longer opposes the motion. Accordingly, for the reasons set forth below, the government submits that the Defendant’s motion should be granted without a hearing, the trial date vacated, and a status hearing set to discuss new trial dates.

[snip]

Finally, the government notes that while it is diligently preparing for trial, an imminent change in government counsel is anticipated. Thus, given the government’s strong interest in ensuring continuity in its trial team, coupled with the defendant’s lack of readiness, the government, in good faith, will not oppose the defendant’s continuance. Under such unique time constraints, the government therefore requests that the Court vacate the trial date, without need for a hearing, and set a new trial date and extend the remaining pretrial deadlines by 30 to 45 days. [my emphasis]

The judge in the case, Christopher Cooper, ruled on Wednesday that he will only delay the trial if both sides can fit in his schedule. In his order, he mostly trashed the defense excuses. But he noted that the government, too, should have planned prosecutorial changes accordingly.

The Court will reserve judgment on the Defendant’s 88 Motion to Continue the December 12, 2022 trial date pending receipt of a joint notice, to be filed by November 28, 2022, indicating specific dates on which the parties would be available for trial following a brief continuance. If the parties cannot offer a date that also conforms with the Court’s schedule, the Court will deny the motion and proceed with the scheduled trial. The Court finds that none of the reasons advanced in the Defendant’s motion are grounds for a continuance. This case was charged nearly two years ago, one trial date has already been vacated at the defense’s request, and the present date was set over four months ago. Defense counsel, which now number at least three, have had more than ample time to prepare for trial. The defense has not identified any material evidence that it is lacking, either from the government’s voluminous production of both case-specific and global discovery, or from other public sources. Nor is the pendency of the appeal in U.S. v. Miller an impediment to trial. This and other courts have proceeded with numerous January 6th trials involving the charge at issue in Miller. If the Circuit decides the issue in the defense’s favor, then Mr. Barnett will receive the benefit of that ruling. There is no good reason to halt the trial in the meantime. As for any anticipated change in government trial counsel, the government has been aware of the current trial date for months and should have planned accordingly. That said, the Court would be willing to exercise its discretion and grant a brief continuance should a mutually agreeable date be available. The Court notes, however, that it has a busy docket of both January 6th cases and other matters and therefore may not be able to accommodate the parties’ request. [my emphasis]

Unless and until Dorhmann spins off all her other cases, it won’t be clear whether a change in Barnett’s case indicated she expected to focus more time on Trump or that DOJ wanted to create single reporting lines through Smith (or even whether the change in prosecutorial team involved one of several other prosecutors assigned to the case).

Lisa Monaco has been micro-managing the approach to January 6 from the moment she was confirmed in April 2021. Sure, it’s certainly possible that DOJ didn’t make the final decision on whether to appoint a Special Counsel, and if so, whom, until after Trump announced he was running or until after the GOP won the House. Maybe they delayed any resource discussions until after finalizing a pick.

But depending on the reasons why DOJ changed its mind on Barnett’s case, it’s possible that his still-scheduled December 12 trial could delay the time until Smith has his team in place, by several weeks. It’s also possible DOJ will just go to trial, a high profile one that poses some evidentiary complexities, with the two other prosecutors.

As I’ve suggested above, managing the workload created by the January 6 attack has been unbelievably complex, with rolling reassignments among virtually all prosecution teams from the start. Dohrmann’s caseload is of interest only because the mix of cases she has carried range from trespassers to the former President.

But at this moment, as Smith decides how he’ll staff the investigation he is now overseeing, that caseload may create some avoidable complexities and potentially even a short delay, one that could have been avoided.

Update: In a filing not signed by Mary Dohrmann, the two sides offered January 9 as a possible trial date.

SDNY Closes Ukraine Influence Peddling Investigation into Rudy

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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.

The “Subject” of Robert Costello’s Declination

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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.

In Sentencing Memo, SDNY Scoffs at Lev Parnas’ Claims of Cooperation

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The two sides have submitted sentencing memos for Lev Parnas’ scheduled June 29 sentencing. In the face of DOJ’s call for a 78 to 97 months sentence, Parnas is claiming that he “cooperated” with the 2019-20 House impeachment investigation. Parnas suggests that DOJ won’t give him a cooperation departure because they didn’t like what he had to say.

Apparently, the information Mr. Parnas wished to supply the Department of Justice in this case was information that it did not want to hear. Prosecutors kept Mr. Parnas at bay for months before finally hearing his proffer. When they did, it was principally used to thwart his potential trial testimony, rather than to consider his attempt to provide substantial assistance in good faith. Mr. Parnas’s cooperation with Congress was timely and material.

His media statements were intended to place information and evidence that was important to our national interest into the public domain—frequently at great risk to himself. And yet, from nearly the moment Mr. Parnas committed to cooperating with Congress and producing videos, photographs, documents, text messages, proton mail messages and other information, the value of this evidence was of undeniable significance.

But SDNY argues that Parnas did no more than comply with a subpoena, his civic duty.

Parnas’s compliance with the HPSCI subpoena does not justify a downward departure. His decision to produce documents in response to a duly issued subpoena is akin to a civic deed that is “ordinarily not relevant in determining whether a sentence should be outside the applicable guideline range.” § 5H1.11.

SDNY details at more length what transpired before Parnas started pitching his story to Congress: Parnas’ attorney, Joseph Bondy, provided a series of proffers that fell short of the truth. In November 2019, they told Parnas explicitly that his public campaign was harming his bid to cooperate.

Within a week of Parnas’s arrest, on October 16, 2019, Parnas’s counsel contacted the Government to indicate that Parnas was “really upset” that then-President Trump was “claiming he didn’t know [Parnas],” and that Parnas was interested in cooperating. 1 The Government then requested an attorney proffer—that is, a summary from Parnas’s attorney of what Parnas would be able to testify to at trial—in order to evaluate Parnas’s truthfulness and potential to provide substantial assistance. Parnas’s counsel provided a number of attorney proffers beginning on October 28, 2019, but the information was not fully credible and in material respects was plainly contradicted by the evidence the Government had gathered to date, which caused the Government to have serious concerns about Parnas’s credibility and candor. The Government had extended discussions with Parnas’s counsel in the weeks and months following Parnas’s arrest during which the Government pointed counsel to evidence that contradicted the attorney proffers.

Moreover, in an effort to encourage Parnas to be truthful, on November 6, 2019, the Government took the extraordinary step of meeting with Parnas and his counsel for a reverse proffer to explain, among other things, the evidence the Government had gathered against Parnas; what the cooperation process entailed; and that Parnas would have to be truthful and accept responsibility for his own crimes. At the close of that meeting, the Government informed Parnas that public spectacles, leaks, and social media postings could undermine his credibility and diminish his value as a potential cooperating witness. The Government also explained to Parnas how certain information he had provided through his attorney proffers had been contradicted by the evidence and was materially false. After that meeting, Parnas’s counsel wrote the Government to report that he could not “accept responsibility for criminal activity for which he is not guilty,” which based on discussions with counsel, the Government understood to be a reference to, among other things, the campaign finance and false statements offenses of which Parnas now stands convicted.

[snip]

As this Court is aware from pretrial litigation, the Government met with Parnas for a proffer on March 5, 2020. During that proffer, Parnas was not fully credible or forthcoming. He minimized, blamed others for the criminal conduct he has pled to and been convicted of, made statements that were inconsistent with the evidence, and the Government was ultimately unable to corroborate significant portions of what Parnas said. Due to his lack of credibility, candor, and unwillingness to accept responsibility, the Government did not meet with Parnas again for another proffer session and did not proceed with cooperation. [my emphasis]

The government seems far more worried that Judge Paul Oetken, who sentenced Parnas’ co-defendants to a year and a day, would give Parnas a lower than guidelines sentence to avoid a sentencing disparity than that he’d get credit for cooperation.

Parnas is playing that up, too, noting that Igor Fruman got released to a halfway house just three months after reporting.

Two of Mr. Parnas’s co-defendants, David Correia and Igor Fruman, were ultimately offered plea agreements to select counts of the indictment and entered guilty pleas. Mr. Parnas, who was not offered such a plea, proceeded to trial along with another co-defendant, Andrey Kukushkin, which ended in conviction on October 22, 2021. Mr. Parnas filed post-verdict motions for a judgment of acquittal and for a new trial, which were denied.

Thereafter, he entered a plea to the single remaining count against him–which had been previously severed—”the Fraud Guarantee” wire fraud conspiracy. All of Mr. Parnas’s co-defendants have been sentenced by the Court to 366 days’ imprisonment. Mr. Fruman, who surrendered to the custody of the Bureau of Prisons on March 14, 2022, has already been released to “residential reentry management.”

All of which is most interesting for the disposition of the charges relating to Yuri Lutsenko, which were part of the original indictment against Parnas and Fruman, but which were removed in a 2020 superseding indictment. These are the charges that Parnas and Fruman would face with Rudy Giuliani.

In April, Rudy offered what reporters presented as a last minute meeting, before prosecutors made an imminent decision on his prosecution, but nothing has come of it since then. Perhaps we’ll learn more after Parnas’ sentencing next week.

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

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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.

While TV Lawyers Wailed Impotently, DOJ Was Acquiring the Communications of Sidney Powell, Rudy Giuliani, and (Probably) Mark Meadows

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Because TV lawyers continue to wail that DOJ isn’t doing enough to investigate Donald Trump, I want to dumb down this post.

While TV lawyers have been wailing impotently that DOJ has been doing nothing to investigate Donald Trump, DOJ and the National Archives have been acquiring the communications behind some of the most damning events leading up to January 6. DOJ has been doing so even as the TV lawyers guaranteed us they would know if DOJ were doing such things, yet insisting that DOJ was not.

Consider just the events leading up to the December 18, 2020 series of meetings at the White House, involving Sidney Powell, Rudy Giuliani, and Mark Meadows, which some of the same reporters that reported it in real time are reporting as if it were new news.

Sidney Powell

According to the WaPo story on the grand jury investigation into Sidney Powell, a subpoena in that investigation issued in September asked for “communications and other records related to fundraising and accounting” related to Powell’s grift.

Federal prosecutors have demanded the financial records of multiple fundraising organizations launched by attorney Sidney Powell after the 2020 election as part of a criminal investigation, according to a subpoena reviewed by The Washington Post.

The grand jury subpoena, issued in September by the U.S. attorney’s office for the District of Columbia, sought communications and other records related to fundraising and accounting by groups including Defending the Republic, a Texas-based organization claiming 501(c) 4 nonprofit status, and a PAC by the same name, according to the documents and a person familiar with the investigation who spoke on the condition of anonymity to share details of the probe.

As part of the investigation, which has not been previously reported, prosecutors are seeking records going back to Nov. 1, 2020.

The subpoena reviewed by The Post was signed by Assistant U.S. Attorney Molly Gaston, who is also handling politically charged matters related to the Jan. 6 attack on the Capitol, including contempt of Congress charges brought against former Trump adviser Stephen K. Bannon for refusing to testify in front of the House committee investigating the pro-Trump riot. [my emphasis]

While the predication of that investigation seems to be based on Powell’s fundraising — soliciting money from dupes who believe her false claims of a stolen election — because proving that she knew those claims were false would require collecting everything about her efforts to manufacture false claims, it would get the communications explaining how to exploit those false claims as well. Plus, this September subpoena reveals just what DOJ did after moving to an overt phase. Prior to that, DOJ presumably obtained — first — preservation orders and — then — warrants on the emails that, according to Patrick Byrne, Powell claims she sent Rudy about her schemes.

On January 21 (a week before Trump started dangling pardons again), Sidney Powell’s lawyer revealed she is “cooperating” in that investigation, though in contemplating “cooperation” with the January 6 committee, she is reserving privilege claims about “advice” to Donald Trump.

A lawyer for Sidney Powell, a well-known, Trump-connected attorney, acknowledged that her organization’s fundraising connected to the 2020 election is subject to an ongoing federal criminal investigation.

Powell’s lawyer, Howard Kleinhendler, told CNN that his client “is cooperating” with the investigation into her organization, Defending the Republic, by the US Attorney’s Office in the District of Columbia. That cooperation includes “rolling productions” of documents.

[snip]

Still, when the committee asks Powell about communications she had with Trump, that is “going to get a little hairy,” Kleinhendler told CNN.

He said Powell believes that the times Trump called her to ask for legal advice may be covered by attorney-client privilege — even if he never paid her to be his or his campaign’s lawyer. Powell never worked as a lawyer for the former President personally or for the Trump campaign, Kleinhendler said.

“We’ll have to deal with that, and we’ll have to try to discuss with the committee to see how” to handle privilege issues, Kleinhendler said.

Any emails obtained with a non-public warrant would be sent to a taint team that would review Sidney Powell’s privilege claims independently. Of particular interest, after Trump claimed Powell represented him on November 15, 2020, Rudy stated as clearly as he can manage on November 22 that, “Sidney Powell is practicing law on her own. She is not a member of the Trump Legal Team. She is also not a lawyer for the President in his personal capacity.”

With that statement, Rudy effectively waived privilege for any communications implicating both of them from that date forward, long in advance of that December 18 meeting at which Powell purportedly told him about all the communications she sent him in the interim.

Similarly, most of these events post-date the time, November 25, when Powell can credibly claim to be representing Mike Flynn in an effort to nullify the consequences of his lies and foreign agent work, because that’s when Trump pardoned Flynn. So she may want to claim privilege, but after November 25, all visible basis for that claim was affirmatively gone, and for anything seized from her email provider, she’s likely not going to be involved in making that claim anyway.

As I previously noted, the prosecutor in charge of that investigation dropped off three other January 6 prosecutions by March 29 of last year (though there is at least one other investigation, the obstruction investigation into Capitol Police Officer Michael Riley, on which she was also working in the interim).

Gaston originally pulled three January 6 cases in the investigation’s early days, those of Robert Packer, Robert Gieswein, and Derrick Evans, just the latter of which, involving a then-West Virginia state politician, had any possible public corruption component. But, at a time of immense staffing shortages at DC’s US Attorney’s Office, she dropped off those cases on February 18 (in the case of Packer) and March 29 (in the case of Gieswein and Evans). I’ve long wondered what, in the weeks after Merrick Garland came in, became a higher priority for the DC US Attorney’s leading public corruption prosecutor. We now know one thing she picked up in the interim was the prosecution of Michael Riley, the Capitol Police Officer who advised rioter Jacob Hiles to delete Facebook posts about his role in the riot. And by September, Gaston’s grand jury investigation into Sidney Powell’s grift had started taking overt steps like subpoenaing Powell’s nonprofit.

There continue to be some curious moves that suggest DOJ is shifting prosecutorial resources to unseen investigations in fairly urgent fashion.

Rudy Giuliani

Meanwhile, on January 21 (the same day that CNN reported that Powell was “cooperating” in the DOJ investigation, and so also a week before Trump started dangling pardons again), Special Master Barbara Jones reported on the progress of the privilege review of 16 devices seized from Rudy Giuliani on April 28, 2021.

Here’s a summary of what that review and the earlier known seizures of Rudy’s communications in the Ukraine-related investigation into Rudy:

Because of the temporal scope Judge Paul Oetken approved last year, Jones has completed a privilege review of all communications that date between January 1, 2018 through April 28, 2021 on 8 of the devices seized from Rudy (April 28 was the day the devices were seized). We can’t know what dates during which Rudy was using those 8 devices. It could well be that they were older phones with nothing recent.

But we know that of the communications on the phone with the most texts and chats — the phone designated 1B05 — the government received 99.8% of any communications dated between January 1, 2018 and April 28, 2021 and they received those communications no later than January 21.

Of particular note, Rudy at first tried to claim privilege over 56 items from phone 1B05. He thought better of those claims in 19 cases. And then, after Jones deemed 37 of them not to be privileged, he backed off that claim as well. During a period when Jones and Rudy’s team would have been discussing those 37 items, Judge Oetken issued a ruling saying that the basis for any privilege claims (but not the substance of the communications) would have to be public. After precisely the same kind of ruling in the Michael Cohen Special Master review, Trump backed off his claim of privilege for Cohen’s recording about the hush payments. That may be what persuaded Rudy to withdraw his claim of privilege over those materials here, as well.

And whether or not DOJ has already accessed the communications Rudy conducted during 2020 and 2021 on any of the 16 devices seized from him, we know all the phones Rudy was using in April 2021 are in DOJ’s possession and that Judge Oetken has already approved a privilege review to cover those communications.

Mark Meadows

On December 15, the House voted to send the Mark Meadows contempt referral to DOJ for prosecution. Much to the chagrin of the TV lawyers, DOJ has not taken overt action against Meadows on the criminal contempt of Congress referral.

But as I’ve repeatedly argued, that referral is better considered — and would be more useful to the pursuit of justice — as a referral of Mark Meadows for a violation of the Presidential Records Act and obstruction of the DOJ criminal investigation that he knew to be ongoing.

Among the things included in the referral are:

  • A link to this Politico report quoting “a source close to former President Donald Trump’s ex-chief of staff,” insisting that, “all necessary and appropriate steps either were or are being taken” to ensure that Meadows is not deemed to have violated the Presidential Records Act by failing to share Presidential communications he conducted on his personal email and phone
  • Repeated references to Jonathan Swan’s coverage of the December 18 meeting at which Powell and others discussed seizing the voting machines
  • Indication that Meadows received notice on his personal phone (and so among the records withheld in violation of the PRA) the rally might get violent
  • A citation of a message that Meadows turned over to the committee (but presumably not, originally, to the Archives) in which Alyssa Farah urged, “You guys have to say something. Even if the president’s not willing to put out a statement, you should go to the [cameras] and say, ‘We condemn this. Please stand down.’ If you don’t, people are going to die”
  • Citation of several communications Meadows had with state politicians involved in the fake elector scheme (which Deputy Attorney General Lisa Monaco has confirmed they are investigating), including one where Meadows said, “I love it” and another where he said, “Have a team working on it;” Monaco’s confirmation puts Meadows on notice that his actions are the subject of a federal criminal investigation
  • A claim of election fraud sent to Meadows on his private email (and so among the materials he violated the PRA by withholding)
  • Citation of a tweet Meadows sent on December 21 reporting “‘Several members of Congress just finished a meeting in the Oval Office with President @realDonaldTrump, preparing to fight back against mounting evidence of voter fraud. Stay tuned”
  • Citation of this story describing that Meadows’ late December trip to Georgia to pressure election officials to find more votes could get him in legal trouble; when Fulton County DA Fannie Willis asked for increased protection in the wake of Trump’s calls for riots, she stated explicitly that she was criminally investigating, “former President Donald J. Trump and his associates,” putting Mark Meadows on notice that he’s under criminal investigation there, too

This entire process led Meadows and his attorney to make efforts to comply with the PRA, meaning they’ve been working to provide the communications cited here, as well as those Meadows intended to claim privilege over, to the Archives.

If they can’t comply — and some of the texts in question were sent via Signal, which is really hard to archive, and so may not have been preserved when Meadows sent his own phone back to his provider to be wiped and replaced — then Meadows will not just be in violation of the PRA (which is basically toothless) but also of obstructing the criminal investigation he knew was ongoing when he replaced his phone. Obstruction carries a far stiffer penalty than contempt of Congress does, and it serves as good evidence of involvement in a larger conspiracy.

As Carl Nichols, the Trump appointee presiding over the Steve Bannon criminal contempt case (and therefore likely to preside over one against Meadows if it were ever charged), criminal contempt is for someone from whom you’ve given up getting cooperation, not someone who still might offer useful cooperation.

Meanwhile if Meadows and his lawyer do belatedly comply with Meadows’ obligations under the PRA, it’s quite possible (particularly in the wake of the Supreme Court ruling denying Trump’s attempt to override Joe Biden’s privilege waiver) that DOJ has to do no more to obtain these records than to send a warrant to the Archives. If not, Meadows is now on notice that he is the subject of several criminal investigations (the fake elector one and the Fulton County one), and he may think twice before trying to withhold communications that are already in possession of the Archives.

So whether or not DOJ has these documents in their possession right now, they have the means to get them very easily.

In other words, while TV lawyers have been wailing that DOJ has been doing nothing, DOJ has been acquiring the communications from at least two of the key participants in that December 18 meeting, and the Archives have been acquiring the communications of a third.