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Jeffrey Rosen Separated the Investigation that Could Turn Rudy Into a Russian Agent from the Rudy Investigation

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When Scott Stedman first reported that the FBI investigation into matters relating to Rudy Giuliani had expanded to include sanctioned Russian agent Andreii Derkach, he suggested it was tied to the SDNY seizure, just days earlier, of Rudy’s phones.

The Federal Bureau of Investigation (FBI) probe of Donald Trump’s personal lawyer Rudolph Giuliani has expanded to include Russia’s spy activities in the 2020 U.S. election, multiple sources tell Forensic News.

The criminal investigation, which led to a dramatic raid of Giuliani’s home and office this week, has for months included the activities of those who worked for or with Russian intelligence agent Andriy Derkach.

Derkach is a Ukrainian Member of Parliament who has been an “active Russian agent for over a decade,” according to the U.S. government.

Kenneth McCallion, an attorney who has represented multiple Ukrainian clients, said that prosecutors have been looking into the actions of Derkach in the 2020 election cycle as part of the Giuliani probe.

“I have been briefed that prosecutors are scrutinizing Derkach as part of the Giuliani probe,” McCallion told Forensic News. The inclusion of Derkach in the FBI’s probe suggests that the potential charges facing Giuliani might extend beyond just Foreign Agent Registration Act violations.

But the NYT last night reported (without crediting Stedman for the earlier report) that, instead, the Derkach part of the investigation is in EDNY, not SDNY, and in that investigation, Rudy is not a subject.

Federal prosecutors in Brooklyn have been investigating whether several Ukrainian officials helped orchestrate a wide-ranging plan to meddle in the 2020 presidential campaign, including using Rudolph W. Giuliani to spread their misleading claims about President Biden and tilt the election in Donald J. Trump’s favor, according to people with knowledge of the matter.

[snip]

The investigation is unfolding separately from a long-running federal inquiry in Manhattan that is aimed at Mr. Giuliani. While the two investigations have a similar cast of characters and overlap in some ways, Mr. Giuliani is not a subject of the Brooklyn investigation, the people said.

Instead, the Brooklyn prosecutors, along with the F.B.I., are focused on current and former Ukrainian officials suspected of trying to influence the election by spreading unsubstantiated claims of corruption about Mr. Biden through a number of channels, including Mr. Giuliani, Mr. Trump’s personal lawyer at the time. It is unclear whether the Brooklyn prosecutors will ultimately charge any of the Ukrainians.

At one point in the investigation, the authorities examined a trip Mr. Giuliani took to Europe in December 2019, when he met with several Ukrainians, according to the people, who spoke on the condition of anonymity to discuss an ongoing inquiry.

At least one of the current and former officials Mr. Giuliani met, a Ukrainian member of parliament named Andriy Derkach, is now a focus of the Brooklyn investigation, the people said. [my emphasis]

In a remarkably stupid comment, the NYT suggests that two investigations started under Trump pose a political problem for Merrick Garland (misstating, at the same time, what Garland promised).

Together, the Manhattan and Brooklyn investigations present a challenge for the Biden Justice Department, which has pledged to remain above the political fray even as it inherited a number of sensitive investigations linked to Ukraine and Russia.

The comment is especially stupid given the public record that suggests the most likely explanation for the two separate investigations is that Jeffrey Rosen took steps after Rudy became the focus of investigative attention in SDNY, to ensure that EDNY could stave off the most dangerous parts of the investigation.

I have pointed out repeatedly that had the Zelenskyy call whistleblower tip been treated like all other national security related tips in the post-9/11 world, investigators would have discovered that it pertained to an already open investigation in SDNY into Lev Parnas and Igor Fruman, an investigation that both Billy Barr and Jeffrey Rosen knew about. It appears that didn’t happen at first because the complaint was viewed exclusively as the transcript of President Trump’s call, and not the backup that tied the call to the influence peddling involving Rudy, Parnas, and Fruman that had been going on for some time.

But, probably with the public release of the whistleblower complaint, SDNY began to investigate how Rudy picked up the effort that Parnas and Fruman had already started in 2018, to get Marie Yovanovitch fired.

On November 4, 2019, SDNY executed searches — searches that Main Justice would have had to be informed about — on Rudy and Victoria Toensing’s cloud accounts. In subsequent months, SDNY would execute searches on Yuri Lutsenko and several other Ukrainians, but not Andrii Derkach, not even after Rudy flew to Ukraine to meet with Derkach personally on December 5, 2019.

In the wake of those searches, on January 17, 2020, Jeffrey Rosen issued a memo putting his trusted deputy, Richard Donoghue, in charge of all Ukraine-related investigations.

As has been publicly reported, there currently are several distinct open investigations being handled by different U.S. Attorney’s Offices and/or Department components that in some way potentially relate to Ukraine. In addition, new information potentially relating to Ukraine may be brought to the attention of the Department going forward. The Department has assigned Richard Donoghue, the U.S. Attorney in the Eastern District of New York (EDNY), who currently is handling certain Ukraine-related matters, to coordinate existing matters and to assess, investigate, and address any other matters relating to Ukraine, including the opening of any new investigations or the expansion of existing ones.

[snip]

Any and all new matters relating to Ukraine shall be directed exclusively to EDNY for investigation and appropriate handling.

[snip]

Any widening or expansion of existing matters shall require prior consultation with and approval by my office and EDNY.

Now that we know about the Rudy search in November 2019, the effect of this memo is clear: it limited the SDNY investigation to the scope of the investigation as it existed at that time, into the Lutsenko attempt to fire Yovanovitch (which was included in the original Parnas indictment), but not Rudy’s meeting with a Russian agent to help Trump win re-election.

Instead, EDNY presided over all the Ukraine goings-on during the election, during which time they could have done something about ongoing tampering. Indeed, after Geoffrey Berman succeeded in ensuring that Audrey Strauss would replace him after Barr fired him to try to shut down ongoing investigations (including, undoubtedly, the one into Rudy and Barr’s friend Victoria Toensing), Barr and Rosen replaced Donoghue with another trusted flunky, Seth DuCharme. Under DuCharme, then, EDNY sat and watched while Derkach interfered in the election and did nothing until — per yesterday’s NYT story — “the final months of the Trump administration.” According to the public timeline, it appears that they just let a known Russian agent play around in our democracy.

There is plenty of risk for Rudy in the existing SDNY investigation. But what Rudy did in response to Lutsenko’s entreaties amounts to lobbying, and so is probably most likely be charged as a FARA case (though Foreign Agent charges are on the table).

With Derkach, however, Rudy was affirmatively attempting to launder Russian-backed disinformation to affect the election. There’s no way that can be charged as lobbying. Plus, the government understood Derkach to be a Russian agent when Rudy attended that meeting (though Rudy claims he was not warned in advance). If Derkach were part of the SDNY investigation, in which Rudy is a subject, then treating Rudy as the Russian agent he has served as in recent years would be on the table.

But in EDNY, per the NYT report, Rudy’s conduct is not at issue.

Lev Parnas’ Gamble: The Three Nested Investigations

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As I noted the other day, Lev Parnas has inserted himself, along with his co-defendants, in the middle of the presumed Special Master review of Rudy Giuliani and Victoria Toensing’s seized devices. He’s doing so as part of a strategy he has pursued since shortly after he was arrested to either make his prosecution unsustainable for Donald Trump (that strategy has presumably failed) or to bring a whole lot of powerful people — possibly up to and including Trump — down with him. The Special Master review will be critical to this strategy, because it will determine whether material that might otherwise be deemed privileged can be reviewed by the Southern District of New York as evidence of a cover-up of crimes that Donald Trump committed.

In this post, I will lay out how there are two — and if Lev is successful, three — sets of crimes in question, each leading to the next.

1a, Conspiracy to donate money: 18 USC 371, 52 USC 30122, 18 USC 1001, 18 USC 1519 and 2, and 18 USC 371, 52 USC 30121.

The first set of crimes pertain to efforts by Parnas, Igor Fruman, and two co-defendants, to gain access to the Republican Party with donations prohibited by campaign finance law. They were first charged — as Parnas and Fruman were about to fly to Vienna to meet with Victor Shokin — on October 9, 2019. The charges relate to allegations that they used their company, Global Energy Partners, to launder money, including money provided by a foreigner, to donate to Trump-associated and other Republican candidates.

These charges almost certainly arose out of a complaint and then a follow-up by Campaign Legal Center.

The overall motive of these crimes, as described, was basically grift: to improve their connections to facilitate a fairly dodgy business proposition. One prong of the business, explicitly funded by a Russian businessman, involved funding recreational marijuana efforts.

But along the way, one of their alleged acts was to give Pete Sessions $20,000 in a way that associated that donation with an effort to get rid of Marie Yovanovitch, possibly on behalf of Yuri Lutsenko.

[T]hese contributions were made for the purpose of gaining influence with politicians so as to advance their own personal financial interests and the political interests of Ukrainian government officials, including at least one Ukranian government official with whom they were working. For example, in or about May and June 2018, PARNAS and FRUMAN committed to raise $20,000 or more for a then-sitting U.S. Congressman [Sessions],

[snip]

At and around the same time PARNAS and FREEMAN committed to raising those funds for [Sessions], PARNAS met with [Sessions] and sought [his] assistance in causing the U.S. Government to remove or recall the then-U.S. Ambassador to Ukraine.

1b, Conspiracy to donate money: 18 USC 371, 52 USC 30122, 18 USC 1001, 18 USC 1519 and 2, and 18 USC 371, 52 USC 30121, 18 USC 1349.

The campaign finance indictment was superseded on September 17, 2020 to add a fraud charge associated with Parnas and David Correia’s Fraud Guarantee, which literally was a fraud claiming to insure people against losses from fraud. They got a bunch of investors to invest in the business based on false representations, which Parnas (and to a lesser degree, David Correia) allegedly spent on his personal expenses. The superseding indictment took out the charge related to Yovanovitch.

Shortly after this superseding indictment, Correia flipped, entering into a plea agreement.

2, Foreign influence peddling: 22 USC §§612 and 618, 18 USC §951, 18 USC §2, and 18 USC §371

As you can see already, the first indictment against Parnas and Fruman pertained to an effort — to get Yovanovitch fired — that they were undertaking with Rudy Giuliani. And the superseding indictment adds fraud associated with the Fraud Guarantee they used Rudy’s name to help sell. So Rudy was bound to get dragged into this.

According to a letter submitted by Rudy Giuliani’s lawyer, he is being investigated for a bunch of influence-peddling crimes: FARA, acting as an unregistered Foreign Agent, abetting, and conspiracy.

This investigation may have come out of the way that the whistleblower complaint that launched Trump’s first impeachment magnified an OCCRP profile of Parnas and Fruman’s influence-peddling (which incorporated the profile), and the way that impeachment magnified the influence-peddling that Rudy and the grifters were involved with. The letter that failed to redact the targets of the warrants associated with Rudy listed two of the key players in the OCCRP profile, Yuri Lutsenko and Alexander Levin (Roman Nasirov is the one other person, in addition to Rudy and Victoria Toensing, who was targeted).

Indeed, even as impeachment was rolling out, during the period where Parnas was discussing cooperating with SDNY, he was refusing to admit that some foreigner — likely Lutsenko — was behind all this.

And it seems pretty clear that Parnas and Fruman are subjects of this investigation, too. The government’s response to Parnas’ request for discovery describes that he was notified of search warrants targeting him in January of this year (shortly after Joe Biden’s inauguration).

3. Parnas’ hoped for obstruction investigation

From the start, Parnas has been alleging — credibly — that at least the timing of his arrest was an effort to protect the President and maybe even to shut him up. From early on, he used impeachment as a way to share materials obtained in discovery showing Rudy’s central role in it all. In January 2020, Parnas filed a letter he sent to Billy Barr requesting his recusal, based in part off a claim that DOJ delayed production of discovery past the time he could share it with the impeachment inquiry (in reality, the delay was partly due to the time it took to crack the password to Parnas’ phone). In December, Parnas filed a motion to dismiss his indictment, alleging selective prosecution. He focused closely on the events leading up to impeachment (and falsely suggested these events started in 2019, not 2018). Amid a list of all the times Barr corruptly intervened to protect the President, Parnas described how, just as HPSCI was asking for his testimony, he and Fruman were arrested.

Later that day, Dowd wrote to HPSCI, 6 as he had indicated he would in his e-mail: Kindly refer to my letter of October 3, 2019. This is an update. We continue to meet with Mr. Parnas and Mr. Fruman to gather the facts and documents related to the many subjects and persons detailed in your September 30 letter and to evaluate all of that information in light of the privileges we raised in our last letter. This effort will take some additional time. Accordingly, Messrs. Parnas and Fruman will not be available for depositions scheduled for October 10, 2019. The following day, October 9, 2019, Mr. Parnas met with Mr. Giuliani at the BLT Steakhouse in the Trump Hotel, Washington DC. Mr. Parnas was scheduled to travel later that evening to Frankfurt, Germany, and then on to Vienna, Austria, to meet with the former Prosecutor General of Ukraine, Victor Shokin, to prepare him for an appearance on FOX News’ Shawn Hannity Show to discuss Joe Biden. Although Mr. Giuliani, along with Victoria Toensing and Joseph DiGenova, had originally been scheduled to travel to Vienna with Parnas, Toensing and DiGenova had cancelled several days earlier, and Mr. Giuliani cancelled that day.

After finishing meeting with Mr. Giuliani, Mr. Parnas and Mr. Fruman took a car to Dulles International Airport, where they waited in the Lufthansa lounge for approximately two hours before beginning to board their flight. Unbeknownst to Messrs. Parnas and Fruman, they had been indicted in the SDNY earlier that day.

Parnas also described others involved in his illegal campaign finance activities who were not indicted, including America First Action PAC and Kevin McCarthy.

Among the things Parnas asked for was evidence that was already being collected in the second, influence-peddling investigation.

All internal documents, including memoranda, notes, e-mails, and text messages that, in any way, reference the reasons why individuals and entities including but not limited to, America First Super PAC, [redacted], Rudy Giuliani, President Donald J. Trump, Victoria Toensing, Joseph DiGenova, and John Solomon, were not arrested or charged with Mssrs. Parnas and Igor Fruman;

The government dismissed Parnas’ claim as lacking evidence but also said that some of the materials he was asking for would be covered by various privileges.

Because Parnas’s claim is meritless, the Court need not consider the contours of his discovery request (Parnas Mot. 32-33), but multiple of his requests seek materials that, if they exist, appear to be attorney work product, covered by the deliberative process privilege, and/or are outside of the scope of what would be reasonably necessary to try to advance his asserted claims rather than to gain a strategic advantage at trial.

Judge Oetken has not yet ruled on Parnas’ selective prosecution claim (or a bunch of other pre-trial motions from all defendants).

But as I noted, just the other day, Gordon Sondland provided more evidence of a corrupt cover-up pertaining to impeachment.

In his redaction fail letter, Parnas addressed very specific things he believed to exist to show a cover-up just before the influence peddling warrants got sent out, including emails he deleted.

The seized evidence will also likely contain a number and variety of communications between Giuliani and Toensing and Parnas that are directly discoverable under Fed. R. Crim. P. 16, evidence of any conversations between Giuliani, Toensing, and others, including Parnas, that may have been deleted, communications between Giuliani, Toensing and others about the defendants and how to address their prior relationships, the arrests, and the unfolding investigation, communications between Giuliani and Toensing and others with potential Government witnesses, including communications about the defendants, the offenses charged, and the witnesses’ potential disclosures and characterizations of alleged fraud-loss computations.

If Rudy and Toensing didn’t delete these materials, then they are now in US government custody. And Parnas is doing all he can to make sure the government looks at them.

Vicky and Rudy: The Subjects of Delay

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When I asked around last year what the net effect of Billy Barr and Jeffrey Rosen’s efforts to protect Rudy Giuliani would be, I learned that the net effect of refusing to approve searches on Rudy would only delay, but it would not change the outcome of, the investigation into the President’s lawyer.

That’s worth keeping in mind as you read SDNY’s response to Victoria Toensing and Rudy’s demand that they get to treat both the April warrants against them, as well as the 2019 warrants, like subpoenas. Effectively, SDNY seems to be saying, “let’s just get to the indictment and discovery phase, and then you can start challenging these searches.”

The filing several times speaks of charges hypothetically.

If Giuliani is charged with a crime, he will, like any other criminal defendant, be entitled to production of the search warrant affidavits in discovery, at which time he will be free to litigate any motions related to the warrants as governed by Federal Rule of Criminal Procedure 12. Conversely, if the Government’s grand jury investigation concludes without criminal charges, then the sealing calculus may be different, and Giuliani may renew his motion.

[snip]

If there is a criminal proceeding, the Government will produce the affidavits, warrants, and materials seized pursuant to those warrants, and at that time, the warrants’ legality can be litigated.

[snip]

Finally, Toensing will have both a forum and an opportunity to litigate any privilege issues if there is a criminal proceeding. As the Second Circuit has noted, in affirming the denial of a return-of-property motion, “If [the grand jury’s] inquiry results in indictment, the lawfulness of the seizure will be fully considered upon a motion to suppress, and any ruling adverse to the defendant will be reviewable upon appeal from a final judgment; if the grand jury declines to indict the movant, or adjourns without indicting it, its property will most likely be returned, and if not, it can initiate an independent proceeding for its return.” [my emphasis]

But the filing repeatedly makes clear that not just Rudy, but also Toensing (whose lawyer made much of being informed that Toensing was not a target of the investigation), are subjects of this investigation.

But the Government specifically chose not to proceed by subpoena in this case, for good reason, and there is no precedent for permitting the subjects of an investigation to override the Government’s choice in this regard.

None of the cases cited by Giuliani or Toensing supports their proposed approach. Toensing principally relies on United States v. Stewart, No. 02 Cr. 395 (JGK), 2002 WL 1300059, at *4-8 (S.D.N.Y. June 11, 2002), 4 but that case is readily distinguishable because it involved the seizure of documents from several criminal defense attorneys who were not subjects of the Government’s investigation and had many cases before the same prosecuting office

[snip]

Such concerns merely serve to highlight the many countervailing problems with Giuliani and Toensing’s proposal: under their approach, the subjects of a criminal investigation would have the authority to make unilateral determinations not only of what is privileged, but also of what is responsive to a warrant.

[snip]

Nevertheless, Giuliani argues that, quite unlike other subjects of criminal investigations, he is entitled to review the affidavits supporting the warrants, which would effectively give him the extraordinary benefit of knowing the Government’s evidence before even being charged with a crime.

[snip]

Her request is contrary to law and would effectively deprive the Government of its right to evidence in the midst of a grand jury investigation so that she, the subject of that investigation, may decide what is privileged and what is responsive in those materials.

[snip]

In other words, accepting Giuliani and Toensing’s argument about the impropriety of using a filter team to review covert search warrant returns would entitle subjects of a criminal investigation to notice of that investigation any time a warrant were executed that related to them, no matter if the investigation were otherwise covert and no matter if the approving Court had signed a non-disclosure order consistent with the law. [my emphasis]

SDNY correctly treats Rudy and Toensing’s demands to review this material before SDNY can obtain it as a delay tactic.

Giuliani and Toensing’s proposal to allow their own counsel to conduct the initial review of materials seized pursuant to lawfully executed search warrants, including making determinations of what materials are responsive to the warrants, on their own timeline is without any precedent or legal basis. The Government is aware of no precedent for such a practice, which has the effect of converting judicially authorized search warrants into subpoenas.

Indeed, their discussion of the Lynn Stewart precedent emphasizes their goal of obtaining this material expeditiously.

None of the cases cited by Giuliani or Toensing supports their proposed approach. Toensing principally relies on United States v. Stewart, No. 02 Cr. 395 (JGK), 2002 WL 1300059, at *4-8 (S.D.N.Y. June 11, 2002), 4 but that case is readily distinguishable because it involved the seizure of documents from several criminal defense attorneys who were not subjects of the Government’s investigation and had many cases before the same prosecuting office. (See infra at pp. 33-34). In any event, the Court appointed a special master in Stewart, as the Government seeks here. And the procedures adopted in Stewart illustrate why the Government’s proposed approach is preferable. In Stewart, the presiding judge initially believed that the special master’s review could be conducted expeditiously because the defendant’s counsel could quickly produce a privilege log (as Toensing seeks to do here). Id. at *8. But 15 months later, the judge lamented that the special master still had not produced a report on the seized materials. United States v. Sattar, No. 02 Cr. 395 (JGK), 2003 WL 22137012, at *22 (S.D.N.Y. Sept. 15, 2003), aff’d sub nom. United States v. Stewart, 590 F.3d 93 (2d Cir. 2009). That cumbersome process stands in stark contrast to that adopted by Judge Wood in Cohen, wherein the special master completed her review on an expedited basis in parallel to Cohen’s counsel, and set deadlines for Cohen’s counsel to object to any of her designations. (Cohen, Dkt. 39 at 1-2). In Cohen, the special master was appointed in April 2018, and her review was complete by August 2018. The Cohen search involved approximately the same number of electronic devices seized here, but also included significant quantities of hard copy documents, which are not at issue here. In sum, the Court should follow the model set forth in Cohen, which resulted in an efficient and effective privilege review. [my emphasis]

Likewise, the government also offered to pay the costs of the Special Master, so long as the Special Master follows the expeditious procedure conducted with Michael Cohen’s content.

This Court should not permit Giuliani and Toensing to stall the investigation of their conduct in this manner, particularly where the Government’s proposal will allow them to conduct the same review in parallel with a special master. The Government’s proposal to appoint a special master to review the seized materials is the only proposal that is fair to all parties, respects the unique privilege issues that the 2021 Warrants may implicate, and will ensure that Government’s investigation proceeds without undue delay.6

6 In the Cohen matter before Judge Wood, the Government and Cohen split the costs associated with the special master’s privilege review. Here, because the Government made the initial request of the Court and considers the appointment of a special master appropriate in this matter, the Government is willing to bear the costs of the review insofar as the special master follows the procedures adopted by Judge Wood in the Cohen matter, namely to review the seized materials for potential privilege in parallel with counsel for Giuliani and Toensing. To the extent the Court adopts the proposals advanced by Giuliani and Toensing, including that the special master also conduct a responsiveness review of those same materials—which the Government strongly opposes for the reasons set forth above—Giuliani and Toensing should solely bear any costs associated with a responsiveness review, any review beyond the initial privilege review, or any cost-enhancing measures traceable to Giuliani and Toensing. [my emphasis]

I’m mindful, as I review the schedule laid out above, that Cohen was charged almost immediately after the Special Master review was completed, in August 2018. In addressing the partial overlap between the 2019 searches and the April ones, the government notes that, “the Government expects that some, but not all, of the materials present on the electronic devices seized pursuant to the Warrants could be duplicative of the materials seized and reviewed pursuant to the prior warrants.”

The government already knows what they’re getting with these warrants (and if they don’t get it, they’re likely to be able to charge obstruction because it has been deleted). They’re calling for a Special Master not because it provides any more fairness than their prior filter review (indeed, they speak repeatedly of the “perception of fairness”), especially since investigators are about to obtain the materials from the 2019 search, but because it ensures they can get this material in timely fashion, especially since, as it stands now, they’re going to have to crack the passwords on seven of the devices seized from Rudy.

The remaining seven devices belonging to Giuliani and his business cannot be fully accessed without a passcode, and as such the Government has advised Giuliani’s counsel that the devices can be returned expeditiously if Giuliani were to provide the passcode; otherwise, the Government does not have a timeline for when those devices may be returned because the FBI will be attempting to access those devices without a passcode, which may take time.

Yes, Rudy and Toensing are trying to get an advance look at how bad the case against them is. But they’re also hoping to delay, possibly long enough to allow a Republican to take over again and pardon away their criminal exposure.

Which suggests that all the hypotheticals about Rudy and Toensing being able to challenge these searches if they are indicted are not all that hypothetical. SDNY is just trying to get to the place where they can indict.

Victoria Toensing’s Singular Multiple Devices

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The government has docketed a less redacted version of the letter it originally posted asking for a Special Master to troll through Rudy Giuliani and Victoria Toensing’s devices to separate out the privileged material. As I predicted, the redacted parts of the letter describe the filter team search conducted on the material seized in November and December 2019.

That makes the argument this argument all the more cynical.

[T]he overt and public nature of these warrants necessitates, as Judge Wood observed, the appointment of a special master for the “perception of fairness, not fairness itself.”

Particularly given the admission that the government already obtained, “certain emails and text messages,” that they expect to find on the seized devices.

Which makes the other details more interesting. The FBI obtained 18 devices from Rudy in their search (though remember that thumb drives may count as a device for the purposes of a search).

But with Toensing, the government showed up with a warrant, “to search premises belonging to Victoria Toensing and seize certain electronic devices” — devices, plural. But the FBI came back with just one device.

So why did the government think they’d come back with multiple devices and where did those devices go?

Rudy’s Lawyers Destroy His Reputation in an Attempt to Save It

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Just before a long tirade about how, if DOJ had just asked Rudy Giuliani for help proving he’s not a secret Agent of Russian-backed Ukrainians while he was busy at State and WDPA acting as a secret Agent of Russian-backed Ukrainians, he could have avoided a covert search to find out whether he’s a secret Agent of Russian-backed Ukrainians, his lawyers say, in a now-public letter, that it’ll badly damage Rudy’s reputation if it becomes public that DOJ believed he might delete evidence or intimidate witnesses.

In addition, in the original warrant for the iCloud account, there is a nondisclosure order based upon an allegation made to the issuing Court, that if Giuliani were informed of the existence of the warrant, he might destroy evidence or intimidate witnesses. Such an allegation, on its face, strains credulity. It is not only false, but extremely damaging to Giuliani’s reputation. It is not supported by any credible facts and is contradicted by Giuliani’s efforts to provide information to the Government. We should be allowed to question the Government as to what basis it had, if any, to make that assertion. Accordingly, we request the information that was presented in the iCloud warrant to justify the NonNotification Order pursuant to 18 U.S.C. Section 2705 (b) that “there is reason to believe that notification of the existence of this warrant will result in destruction of or tampering with evidence, and/or tamping (sic) with potential witnesses, or otherwise will seriously jeopardize an ongoing investigation.” We also request access to the application for any extension of the non-disclosure provision which originally lasted for a year.

As the single exhibit to prove that Rudy had reached out to DOJ to provide help, his attorneys included a picture of a TV screen with his attorney making that claim (I’m not sure whether this claim is November 25, 2019, or in the wake of the most recent searches) when it might have avoided the search. But then they include all this verbiage which sure seems to describe Rudy acting as an Agent of Russian-backed Ukrainians who just didn’t give a shit about registering as such because why do that if the President can bail you out?

It was premature and unwarranted for the Government to seize Giuliani’s ESI because Giuliani had already cooperated with the U S State Department (“State”) through Mike Pompeo, the Secretary of State, in March 2019 concerning Ukraine. He also cooperated again in July and August of 2019 at the request of the State Department in assisting them with regard to Ukraine. In fact, there has never been an occasion where Mr. Giuliani has refused to cooperate with, or give assistance, to his government. This was as true during the Clinton administration as it was during the Bush administration.

[snip]

As a reminder, this same attorney had cooperated with the State Department and offered, for a year and a half, to answer any questions from the SDNY about any subject or crime, with no limitations except for privileged matters. During that same time period, Giuliani did in fact cooperate with Main Justice, through their designee in Pittsburgh on the subject of the Ukraine. Amazingly, the SDNY continually turned down the offer by stating that while they would be happy to hear anything Mayor Giuliani’s counsel had to say, they refused to identify the subject, although those subjects were disclosed to the media.

Plus, Rudy’s lawyers note — as if it helps him — that they only reached out to offer to help on November 4, 2019, the very same day the warrant was obtained (as if maybe a birdie warned him?), which means he didn’t offer to help for the entire month after the indictment against his business partners Lev Parnas and Igor Fruman was unsealed.

But Rudy’s letter and a similar one from Victoria Toensing’s lawyers lay out certain details of the investigations into the two of them.

There are two sets of warrants. With Rudy, SDNY obtained a sealed warrant for his iCloud account on November 4, 2019 and then the overt one for a shit-ton of devices on April 21, 2021. With Toensing, SDNY obtained a sealed warrant for her iCloud account on November 4, 2019 and another for her Google account on December 13, 2019; they obtained a warrant for a single phone on April 28, 2021.

Rudy says that the earlier warrants showed listed FARA, unregistered Foreign Agent, abetting, and conspiracy as the crimes under investigation.

In essence, the Government was looking for evidence that Giuliani was acting as an agent, unregistered agent or lobbyist of a Ukrainian national, government official, corporation or political party or in violation of the foreign agent registration and lobbying laws or making contributions on behalf of a foreign principal (see attachments to search warrant also citing 22 USC §§612 and 618, 18 USC §951, 18 USC §2, and 18 USC §371).

It’s not entirely clear whether the later warrants against Rudy are the same. He doesn’t say. Plus, he says the later search was only “nearly identical,” as compared to Toensing’s claim that the searches were “virtually” identical. (The content, of course, wouldn’t be identical.)

For her part, Toensing is quite worried that DOJ seized information about a client, who sure seems like Dmitro Firtash.

Rudy’s letter mentions “President President President President” over and over. But in this challenge, unlike the one Michael Cohen made, the President has not filed as an interested party, meaning Rudy’s on his own. Probably, he’s too cheap to pay his share of the presumed Special Master fees.

Rudy also argues, falsely, that the search of the President’s lawyer’s cloud content without the use of a Special Master is unprecedented and especially egregious given that this search came in the wake of the search of Michael Cohen’s devices, which used a Special Master.

Moreover, in the Fall of 2019, during an intense debate over the impeachment and the campaign for the upcoming Presidential Election, with Giuliani publicly acting as President Trump’s personal attorney, the Government decided to take the unprecedented step of seeking a search warrant for Giuliani’s iCloud account. In these circumstances, on the heels of the precautions instilled by Judge Wood in a nearly identical situation, the use of a one-sided “filter” team was highly inappropriate and inadequate to identify privileged materials and thereby protect Giuliani and his clients ’attorney-client privilege, and highly indicative of the appearance of impropriety. Had this been done overtly, or through the Government’s less onerous subpoena powers, we would have requested that a Special Master to be appointed at the time. Instead, the Government has had these private, confidential, and privileged materials in their possession for over eighteen months, and established a Taint Team who acted as prosecutor, defense lawyer, Special Master and Judge entirely in secret, knowing full well this contravened the protocol established in the Cohen case.

Except it’s not remotely unprecedented. That is, literally, the same thing that happened to Cohen. Indeed, his Trump Organization emails were preserved (at Microsoft) and searched by Mueller’s team, then shared with SDNY under a new warrant. And those emails actually did pertain to the President — though from the campaign period, not the period when he was trying to coerce campaign assistance from a foreign government.

Ultimately, a big story here is that someone high up in Billy Barr’s DOJ authorized the sealed searches in November and December 2019, making Rudy’s wails far less convincing. My guess is that after Rudy made Brian Benczkowski look corrupt for taking a related meeting on a bribery case (of the Venezuelan bankrolling the Ukrainian grift) at a time when Rudy was being criminally investigated, Benczkowski wasn’t all that interested in going out on a limb to protect Rudy, especially as it would focus attention on the earlier corrupt review of the whistleblower complaint. My further guess is that after Benczkowski resigned, effective July 3, and after Billy Barr failed to replace Geoffrey Berman with a loyal flunky during precisely the same weeks in June 2020, Barr and Jeffrey Rosen went to epic lengths to prevent this warrant from being approved, with Rosen going so far as to require that a specific person in the Deputy Attorney General’s office be required to sign off on such a warrant on December 30, weeks before the second effort. Whatever the case, Trump’s DOJ approved the covert warrants, the one both lawyers are wailing the most loudly about.

If, as the lawyers wail, SDNY has been sifting through their cloud content, then this warrant shouldn’t hurt them all that much more than their earlier searches (unless Parnas revealed that they weren’t backing up their encrypted apps to the cloud).

Except — particularly given the confirmation that Lev Parnas unsuccessfully deleted his own iCloud account — Rudy’s insistence that he doesn’t have a guilty conscience and wouldn’t have deleted anything rings false.

Despite these two warnings that the SDNY was seeking permission to apply for a search warrant for his electronic devices and because he had no guilty conscience, Giuliani took no steps to destroy evidence or wipe the electronic devices clean. Since Giuliani was not under subpoena, he had no legal obligation to preserve that evidence, but he did so because he is an innocent man who did nothing wrong.

At about this stage in the Michael Cohen litigation, we learned that he, too, had deleted some information.

Not only has SDNY been sorting through these files for 18 months, they had Parnas and Fruman’s content for far longer, and since then Parnas has been trying hard to take Rudy down. So I would imagine SDNY had good reason to believe that Rudy may have destroyed evidence.

Key related posts

October 14, 2019: The Criminal Investigation into Paul Manafort Was (and May Still be) Ongoing–and Likely Pertains to Trump’s Ukraine Extortion

The Parnas and Fruman grift was, in many ways, the direct continuation of Manafort’s efforts to cash in on Trump’s win. You’d think that would raise the stakes of Rudy’s privilege claims — but Trump doesn’t appear to care.

October 16, 2019: On the Potential Viability of Foreign Agent Charges for Rudy Giuliani

I argued that doubts that Rudy could be prosecuted for FARA were not only too pat, but ignored his other criminal exposure for precisely the crimes that would be named in his warrant weeks later.

October 22, 2019: How DOJ Worked Overtime to Avoid Connecting the Dots in the Whistleblower Complaint

I laid out that Criminal Division didn’t do any of the things they’re supposed to do with the whistleblower complaint. That may have forced their hand to approve of the initial warrants against Rudy and VicToe.

October 25, 2019: Main Justice Now Looking for the Evidence in Plain Sight They Ignored in August

Just before the sealed warrants were obtained, Main Justice got more involved in the SDNY investigation.

November 4, 2019: When Your Joint Defense Agreement with the Russian Mob Blows Up in Your Face

I’ve written several posts about the ridiculous claims John Dowd made to try to cover this up in a network of privilege claims. The original is linked in the linked post. But I’m linking this one because I posted it on the same day DOJ got a warrant for Rudy’s iCloud.

November 23, 2019: Timeline: How Rudy Made It Hard for Mike Pompeo to Show Any Leadership

This post includes all the foreign influence peddling that Rudy was doing during the period covered by his warrant.

January 28, 2020: SDNY Prosecutors Protect Trump’s Privacy to Enter into a Joint Defense Agreement with the Russian Mob

There were a bunch of discovery issues in the case in January 2020, including the revelation that Lev Parnas had deleted iCloud data and an affirmative assertion that Parnas could not waive attorney-client privilege for Dmitro Firtash.

May 7, 2021: Four Ways Billy Barr Obstructed the Investigation into Rudy Giuliani

Barr was working hard to kill the Ukraine investigation during the period through which Rudy’s subpoena extends.

In Request for Special Master, the Lev Parnas Prosecutors Hint at Prior Filter Team Searches on Rudy

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The day after the search on Rudy Giuliani and a single Victoria Toensing phone, the prosecutors on the Lev Parnas case wrote a letter to the judge in that case, Paul Oetken, asking that he appoint a Special Master to review the content of their phones before turning that content over to prosecutors. It was unsealed yesterday after Rudy and Toensing’s lawyers got to review the redactions and add any they wanted. Oetken has ordered a briefing schedule about how this should proceed, which will extend through May 17.

The letter suggests certain things:

  • The participation of Oetken and the Parnas prosecution team (Rebekah Donalski, Nicolas Roos, and Aline Flodr) is consistent with this investigation arising out of the Parnas investigation, as has been reported.
  • These searches were approved on April 21, which was the day after Lisa Monaco was confirmed on April 20. That suggests she approved of this search. It’s normal for the Deputy Attorney General to sign off on controversial searches like this, and this suggests they waited to have the confirmed DAG sign off rather than have John Carlin, who had been acting DAG until Monaco was confirmed.
  • A court in Maryland signed off on the seizure of Toensing’s phone before SDNY signed off on the search of it.
  • The letter cites two exceptional circumstances when it might be appropriate to appoint a Special Master: when the attorney-client privilege would involve the President, and so implicate executive privilege, and when the attorney is involved in matters “adverse to the United States Attorney Office.” It’s not clear if prosecutors have something specific in mind with the latter reference, but it’s certainly possible that this concerns matters that one or the other lawyer has clients who are before SDNY.
  • Seemingly to explain why Rudy and Toensing aren’t making this request, the letter notes that defendants normally do but, in this case, “there is no pending criminal case against the subjects of the search.” Make of that what you will.
  • The government is basically asking for the same initial rules to be applied as were applied in the Michael Cohen case. They don’t, however, ask that any legal discussions be submitted to the public docket, which is something that happened in Cohen’s case that seemed to dissuade Trump from making frivolous claims of attorney-client privilege.

The most interesting bit of the letter, however, comes after a redacted passage with two redacted footnotes.

That introduces the following discussion:

The Government believes that its use of a filter team to conduct a review pursuant to established protocols is sufficient to protect applicable privileges and that [one line redacted] given that the searches [redacted] were done in an overt manner. [half line redacted] as well as the unusually sensitive privilege issues that the Warrants may implicate, the Government considers it appropriate for the Court to appoint a special master to make the privilege determinations as to materials seized pursuant to the Warrants. In particular, the overt and public nature of these warrants necessitates, as Judge Wood observed, the appointment of a special master under the “perception of fairness, not fairness itself.”

That is,  the government is explaining — in a letter that preempts any demand from Rudy and Toensing — that they don’t really need to do it this way, but partly because this search was public, it justifies doing so here.

But remember that the search of these devices is not the only one alleged. Rudy and his lawyer, Robert Costello, claim that SDNY also got a “covert” warrant for Rudy’s iCloud account sometime in late 2019.

A lawyer for former New York City mayor and Donald Trump attorney Rudy Giuliani said the Justice Department revealed on a Thursday conference call that the feds had penetrated Giuliani’s iCloud long before Wednesday’s search warrants were executed.

“I was told about it today in a conference call with the [U.S.] Attorney’s office,” attorney Robert Costello, a longtime friend of Giuliani’s, told The Daily Beast on Thursday night. “They told me they obtained a ‘covert warrant’ for Giuliani’s iCloud account in ‘late 2019.’ They have reviewed this information for a year and a half without telling us or [fellow Trump-aligned attorney] Victoria Toensing.”

During an appearance on Tucker Carlson’s Fox News show on Thursday night, Giuliani himself briefly referenced the warrant to search his iCloud account. “In the middle of the impeachment defense, they invaded, without telling me, my iCloud,” the Trump confidant said. “They took documents that are privileged. And then they unilaterally decided what they could read and not read. So the prosecutors at the Justice Department spied on me.”

A year and a half would put the search in October 2019, quite possibly before impeachment had formally started, and around the time when Lev Parnas and Igor Fruman were first charged. It likely put it at a time when Trump had no overt defense needs, and so no acknowledged privilege here (unless you count John Dowd’s October 3 letter to Congress that effectively put Trump in a joint defense agreement with Parnas and Fruman and alleged Russian mobster Dmitro Firtash).

I had thought this earlier reference might have been to a preservation order served to Apple, but the redacted passages are consistent with there having been a real search, one for which SDNY used only a taint team to weed out what was genuinely privileged. And there was clearly probable cause: Rudy was the business partner of two people charged for their business doings.

According to the terms of this letter, in the case of a covert search like the one Rudy claims occurred, there would be less cause for a Special Master.

Which is to say this letter may be more about the searches that have already occurred rather than the forthcoming exploitation that will be done with the oversight of a Special Master.

Rudy the Dripper: The Vicious Cycle of Dead-Ender Propagandists Feeding Bullshit to Tribalist Republicans

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Not long after the former US Attorney of the Southern District of New York headlined a press conference where he and other lawyers presented insane conspiracy theories to claim that Donald Trump had been robbed of his victory, CNN reported that the FBI continues to investigate Rudy Giuliani for his ties to Russian Agents.

Complicating matters is that Giuliani’s post-election swirl of activity comes as federal investigators renewed their investigative interest into his work that is already the subject of a New York-based investigation.

In recent weeks, FBI agents in New York contacted witnesses and asked new questions about Giuliani’s efforts in Ukraine and possible connections to Russian intelligence, according to a person briefed on the matter. The FBI investigators, who have spoken to at least one witness previously months ago, came back to ask new questions recently about possible origins of emails and documents related to Hunter Biden that appear similar to those that the New York Post reported that Giuliani and others helped provide. CNN has previously reported that the ongoing probe is examining whether Giuliani is wittingly or unwittingly part of a Russian influence operation, according to people briefed on the matter.

But questions about that probe have been out of the spotlight as Giuliani stepped into focus as the campaign’s chief post-election lawyer. One source close to the Trump campaign countered that Giuliani is an overzealous defender of the president.

Meanwhile, the same propagandists who’ve helped Trump survive in recent years — on the left and the right — are claiming that because Democrats and others backed the investigation of Russian efforts to get Trump elected in 2016 (an investigation that attempted to understand why Trump fired Jim Comey, the person most Democrats chiefly blame for Hillary’s loss), it is precedent for Trump’s efforts to disclaim Joe Biden’s resounding win.

This exemplifies the vicious cycle we’ve been on since since August 2016, when Donald Trump authorized his rat-fucker to take desperate measures to find bullshit stories to tell to try to win an election.

After WikiLeaks released the first set of files Russia had stolen as part of its plot to help Trump get elected in July 2016 and someone — it’s not clear who — released damning information about Paul Manafort’s corrupt ties with Russian-backed Ukrainian oligarchs, Donald Trump doubled down. Rat-fucker Roger Stone, desperate to save Trump’s campaign and maybe even the job of his lifetime buddy, made a Faustian bargain for advance access to fairly innocuous John Podesta emails that Stone believed would provide the smoking gun for a conspiracy his allies had been chasing since March. The Faustian deal, by itself, exposed Stone as a co-conspirator in a hack-and-leak operation led by a hostile foreign agency. But the deal also brought ongoing exposure: at least as soon as he was elected, Trump’s rat-fucker (and maybe his eldest son!) started pursuing an effort to pay off Julian Assange with a pardon or some other way out of the Ecuadorian Embassy, thereby implicating Trump in a quid pro quo. After Trump assumed the Presidency, his own exposure through Stone gave him reason to want to shut down the investigation, even the investigation into the hack-and-leak itself. As a result, from very early in his presidency, Trump had obstructed justice to hide the quid pro quo and conspiracy his rat-fucker (and possibly he and his son) had joined to help him get there.

Meanwhile, early on in the investigation, acting on advice that Paul Manafort gave after returning from a meeting with one of Oleg Deripaska’s key deputies, the Republicans defended their President by attacking the credibility of the Steele dossier — one that Deripaska himself likely ensured was filled with disinformation — as a stand-in for the larger investigation itself. Deripaska even has apparent sway at one of the outlets that most relentlessly pursued that synecdoche, the dossier as the Russian investigation. Former hawks on Russia, like Trey Gowdy, were lured into fiercely defending Trump even in the face of overwhelming proof of his compromise by the able gate-keeping of Kash Patel and the discovery of how the use of informants can implicate members of your own tribe, as it did with Carter Page. By the time Billy Barr deceived the nation with his roll-out of a very damning Mueller Report, almost every single Republican member of Congress was susceptible to ignoring damning evidence that their President treated both the pursuit of the presidency and his office as a means for self-benefit, no matter what that did to US interests.

Key to the process of co-opting virtually all Republican members of Congress was the process of villainizing the people who had tried to keep the country safe from Russian compromise, starting with Peter Strzok but also including Andy McCabe. That process easily exploited the same apparatus of Congress’ “oversight” powers — and the same susceptibility to heated rants over logic — that had been used to turn a tragic incident in Libya into a multi-year investigation of Hillary Clinton. Also key to that process were certain propagandists on Fox News, including three of the lawyers that stood with Rudy yesterday: DiGenova and Toensing and Sidney Powell.

The day after Mueller closed up shop, those same propagandists joined with Rudy to pursue a revenge plot for the investigation — they started pursuing a way to frame Joe Biden in anticipation of the 2020 election. Most Democrats didn’t believe that Hillary lost because of Russia, but Trump and his conspiratorially-minded advisors believed they did. And so Rudy, relying on advice Manafort offered from prison, used the same networks of influence to try to frame Biden in a Ukrainian plot that, at the same time, might provide an alternative explanation for the Russian crimes Trump was personally implicated in.

Once again, Trump got personally involved, extorting the Ukrainian president over a series of months, “I’d like you to do us a favor, though.”

There’s no doubt that Trump’s abuse of Congress’ power of the purse in an effort to extort a campaign benefit from a foreign country merited impeachment. There’s also no doubt that it served to heighten the tribalism — and ranting illogic — of Republican members of Congress.

Things snowballed further.

That tribalism, by itself, might have gotten Trump re-elected. But it wasn’t enough for Trump. Instead, the President prepared an attack on the integrity of the vote by dissuading his own supporters from using mail-in ballots, setting up the Equal Protection hoaxes that Rudy has pushed in recent days. Georgia Secretary of State Brad Raffensperger claims that, by itself, the effort to discredit mail-in voting cost Trump the state of Georgia. But partisan attacks are what got Trump where he is, and partisan attacks are what he knows.

Trump also doubled down on what had gotten him elected in 2016: overblown attacks sourced to stolen emails, Hunter Biden’s laptop, in this case rolled out by one guy at legal risk for his ties to Fraud Guarantee, and another under indictment for exploiting the tribalism of Trump’s supporters to commit fraud. According to CNN, the FBI believes these emails may have been packaged up by the Russian agents that have been buying access through Rudy and DiGenova and Toensing.

Trump’s DOJ, working with Sidney Powell, even tried to invent an attack on Joe Biden by altering exhibits in a court proceeding. In that case, the overblown attack was sourced to real notes, albeit notes that actual law enforcement officials had packaged in such a way as to tell a false story. Yet again, however, this was a false story that scapegoated those who’ve protected the interests of the country — adding Joe Biden to the targets along with McCabe and Strzok — to try to cover-up unbelievably damning evidence about Trump’s coziness with Russia. The effort to deny that Mike Flynn was secretly working for Turkey while claiming to work for Trump and to deny that Mike Flynn repeatedly called up the country that had just attacked us to try to obtain further benefits turned into an attack on those who tried to keep the country safe from sell-outs like Mike Flynn.

It’s a false story. But Republicans in Congress believe it with all their being. And so it has succeeded in convincing those Republicans they need to redouble their efforts to defend Trump.

So, yesterday, Rudy and the other propagandists gave a press conference that was, for the first time, broadly labeled as a coup attempt and roundly mocked, even by otherwise true believers. Trump, Rudy, Republicans, they’re all victims of an international plot launched by George Soros, Cuba, China, Venezuela, according to Rudy and the lawyers who spun the last several conspiracy theories on Fox News.

And this propaganda, an attempt to set aside the clear will of the voters, derives its strength not from any basis in fact. Rather, it derives its power from the fact that Republicans have gotten so tribally defensive of Trump, they will set aside the clear good of the country to back him.

Donald Trump, if he leaves office, may face legal consequences for what he did in 2016 to get elected. If Trump leaves office, Rudy may face consequences for the things he has done since to keep Trump in office.

To save themselves, they’re pursuing the same strategy they’ve pursued since 2016: telling bullshit stories by waving documents around and lying about what they say, relying on tribalism and raw power rather than reason to persuade their fellow Republicans. It just so happens that several of these stories got told with the help of Russian foreign agents (though some got told with the help of a corrupted law enforcement). It just so happens that Trump and Rudy (and Stone’s) willingness to rely on Russian help to tell these stories has greatly exacerbated their legal risk, and therefore made the spewing of bullshit stories more urgent.

But the Russian role mostly serves to magnify the desperation of this gambit.

Mostly, this is about weaponizing the tribalism of the Republican party that puts party loyalty over loyalty to the country or Constitution. And while there have been a few defectors from this dangerous tribalism in recent days, for the most part, Republicans in Congress don’t care that Trump is exploiting them like this or even — in some cases — don’t understand that this is all a shoddy set of lies.

Convergence: Mueller Obstruction, Ukrainian Favors, and DOJ’s Altered Documents

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Amid uncorrected false claims about election results and tweets inciting violence in DC, Donald Trump tweeted this last night.

After respectable law firms withdrew in AZ and PA, Trump’s legal team is now down to Rudy, DiGenova and Toensing, Sidney Powell, and Jenna Ellis, along with “other wonderful lawyers” whom he did not name.

Finally, the grand convergence: Trump’s obstruction of the Mueller investigation into Trump’s “collusion” with Russia, his demand that Ukraine’s President Volodymyr Zelensky “do him a favor” by inventing an investigation of Joe Biden, and the Billy Barr-led effort to blow up Mike Flynn’s prosecution for covering up Trump’s efforts to undermine sanctions imposed for helping Trump to win. All one grand effort led by lawyers barely clinging to reality.

That’s not a unique observation. Many people are making it (along with laughing at the sorry state of affairs for Trump, a glee that may be premature).

But it’s worth focusing on the relationship between Jenna Ellis and Powell. As I have noted repeatedly, when Judge Emmet Sullivan asked Powell whether she had been in direct contact with Trump about Mike Flynn’s case, she not only confessed to that, but also admitted multiple contacts with Trump’s campaign lawyer, Ellis. That means Ellis is directly implicated in whatever effort there was to alter documents to launch a false attack on Joe Biden, one intimately tied to DOJ’s false excuses (that the investigation was primarily about the Logan Act) for wanting to blow up the Flynn prosecution.

That is, the effort to throw out the Mike Flynn prosecution (about which the lawyers have mostly gone silent, post-election) was all part of an effort to obtain power via illegitimate means. And still is.

SDNY Prosecutors Protect Trump’s Privacy to Enter into a Joint Defense Agreement with the Russian Mob

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Whooboy is there an interesting flurry of motions over in the Ukrainian grifter prosecution. Effectively, SDNY prosecutors and (two of) Lev Parnas’ co-defendants want to slow him from sharing information with HPSCI. The letters include:

  • January 17: Parnas asks to modify the protective order a third time
  • January 22: Igor Fruman lawyer Todd Blanche says he has an attorney-client interest in some of what Parnas wants to and has already shared
  • January 22: Andrey Kukushkin lawyer Gerald Lefcourt says he just wants a privilege review
  • January 23: SDNY says Parnas should not be able to share iCloud information he obtained via discovery without review
  • January 24: Parnas lawyer Joseph Bondy makes a quick argument asserting they should be able to share the information
  • January 24: Bondy responds to Fruman letter at more length
  • January 27: Blanche responds again, invoking Dmitry Firtash to speak on behalf of unnamed others

The dispute started when Parnas asked to share content that the FBI seized from Parnas’ iCloud account and then provided to him in discovery. He listed just 11 Bates stamp numbers in the initial request, but it’s unclear what kind of files these are. In response, the lawyer that Fruman shares with Paul Manafort, Todd Blanche, objected to that request, and also asked to “claw back” any privileged materials that Parnas already produced to HPSCI (remember that Victoria Toensing has already complained that Parnas has violated privilege). Blanche makes a dig at Parnas’ media tour:

My obvious concern is that Mr. Bondy’s hasty efforts to find a forum (beyond MSNBC and CNN) for someone —  anyone — to listen to his client’s version of events caused him to irresponsibly produce privileged materials to the HPSCI.

One of the two other co-defendants, Andrey Kukushkin, weighed in — having been alerted by SDNY that, “its filter team identified materials in Mr. Parnas’ iCloud account that may fall within a common-interest attorney-client privilege held jointly by Mssrs. Kukushkin, Parnas, and aothers” — and stated that he did not object to Parnas sharing information “if all privileged materials can be removed from Mr. Parnas’ iCloud account prior to production to HPSCI.”

Having thus cued Parnas’ co-defendants to submit complaints, SDNY then weighed in, objecting to Parnas’ request. They invoke two reasons for their objection. The first poses interesting Fourth Amendment considerations; effectively SDNY argues that Parnas’ warrant return from Apple includes material that Parnas never possessed (and some material he deleted that only still exists because prosecutors obtained a preservation request).

The materials at issue include records that, as far as the Government knows, were never in Parnas’s possession. For instance, the data produced by Apple includes deleted records (which may only exist because of the Government’s preservation requests), account usage records, and other information to which a subscriber would not necessarily have access. The form of the report, which was created by the FBI, was also never in Parnas’s possession.

[snip]

Additionally, to the extent Parnas seeks to produce his own texts, emails, photographs or other materials, he should have access to the content stored on his iCloud account through other means: he can simply download his own iCloud account and produce it to HPSCI (and in fact, it appears he has already done so).

[snip]

To the extent that Parnas has deleted materials from his iCloud account, the Government is willing to work with counsel to ensure that Parnas can produce his own materials that are responsive to the Congressional request to HPSCI. To that end, the Government respectfully submits that Parnas’s counsel should identify for the Government any specific chats, emails, photographs, or other content Parnas is unable to access from his iCloud currently, but whic exist within the discovery that has been produced to him and in his view are responsive to the Congressional subpoena.

I find that stance interesting enough — basically a reverse Third Party doctrine, saying that subscribers aren’t the owners of the information Apple has collected on them, at least not in the former that FBI reports it out.

It’s the other objection I find most interesting. SDNY prosecutors — including one of the ones who argued against broad claims of privilege in the Michael Cohen — objects because the data from Parnas’ iCloud,

[I]t public disclosure still has the potential to implicate the privacy and privilege interests of third parties and co-defendants.

It then argues that requiring Parnas to specifically request content that he already deleted,

would also permit his co-defendants to raise any concerns with respect to their privilege or privacy interest prior to the materials’ release.

SDNY’s prosecutors are arguing that Parnas can’t release his own iCloud material because of other people’s privacy interests!! As if it is the place for SDNY’s prosecutors to decide what HPSCI considers proper levels of disclosure!!

I’ve been giving SDNY the benefit of the doubt on this prosecution, assuming that as prosecutors they would push back against any Bill Barr attempt to protect Rudy (though not the President). But this alarms me. It seems like SDNY is using Fruman — who is in a Joint Defense Agreement with Rudy — to speak for Rudy’s interests.

After making a cursory response to SDNY, Bondy responded in more detail to Fruman. In it, Bondy makes the kind of argument about the limits of privilege you’ll almost never see a lawyer make.

[T]he burden is on the party asserting the attorney-client privilege to first establish that there was: 1) a communication; 2) made in confidence; 3) to an attorney; 4) by a client; 5) for the purpose of seeking or obtaining legal advice. The part asserting attorney-client privilege has the burden of conclusively proving each element, and courts strongly disfavor blanket assertions of the privilege as “unacceptable.” In addition, the merre fact that an individual communicates with an attorney does not make the communication privileged.

There are also instances in which the attorney-client privilege is waived, including when the substance of otherwise privileged communications are shared with third parties, when the communications reflect a criminal or fraudulent intent between the parties, when the communications are part of a joint–yet conflicted–representation, and in cases where the parties to a joint defense have become adverse in their interests. 

Bondy then goes on to add that HPSCI “does not recognize attorney-client privilege,” which may be why, at about the time these letters were breaking, Jay Sekulow was on the floor of the Senate haranguing Democrats for not respecting that privilege (which Sekulow suggested was in the Bill of Rights). He uses that stance to suggest SDNY is making a claim that violates separation of powers.

From there, Parnas goes on to disavow any privilege shared in his brief Joint Defense Agreement with the Russian mob, in part based on discussions about his initial response to the HPSCI subpoena having been shared more widely.

Mr. Parnas waives all privilege with respect to the communications he had with Mssrs. Dowd and Downing. Furthermore, the substance of his and Mr. Fruman’s legal representation appears to have been shared with third parties, including Jay Sekulow, Rudolf Giuliani, John Sale, Jane Raskin, and others. … As the Court may know, Mssrs. Sekulow, Raskin, and Giuliani are also attorney for President Trump. Mr. Giuliani and the President have interests divergent from Mr. Parnas’s wish to cooperate with Congress and the Government. Mr. Parnas believes that his and Mr. Fruman’s ostensibly joint representation by Attorneys Dowd and Downing was conflicted and intended from its inception to obstruct the production of documents and testimony responsive to lawful congressional subpoena.

[snip]

Here, Attorney Dowd undertaking a joint representation of Mr. Parnas and Mr. Fruman — with the President’s explicit permission — constituted an actual conflict of interest at the time and appears designed to have obstructed Mr. Parnas’s compliance with HPSCI’s subpoenas and any ensuring efforts to cooperate with congressional investigators or federal prosecutors.

Bondy ends by saying it’s up to those claiming a conflict to invoke it.

Bondy makes it fairly clear: he believes the privilege SDNY has set Fruman up to object to involves Rudy and Trump, neither of whom are in a position to object, particularly given that if they do, Bondy will argue that Parnas believes their grift might be criminal and therefore the privilege doesn’t apply.

So instead of the President and his lawyer claiming that Parnas’ release of this material will violate privilege, Fruman does.

Mr. Fruman has reason to believe that the Production Material contains privileged information belonging to Mr. Fruman and others.

He invokes only the consultation of their shell company, Global Energy Producers, with [Rudy’s former firm] Greenberg Traurig in conjunction to substantiate a common attorney-client interest, then nods to more:

This is but one example, and there are many more, but certainly the privilege issues implicated by the repeated amendments to the Protective Order are far more expansive than the attorney-client relationships identified in Mr. Bondy’s letter.

Fruman then complains that he cannot — as Parnas has said he must do — invoke privilege because he’s not in possession of the materials (just the taint team and Parnas have them).

The best part is where, still faced with the problem that the people whose privilege is at issue (Rudy and Trump) cannot politically invoke it, Fruman finds someone else whose privilege, he says, has been violated: Dmitry Firtash.

Mr. Fruman is not the only person whose privilege information is at risk. For example, Mr. Parnas has represented that he was employed as a translator for Victoria Toensing and Joseph DiGenova in connection with their representation of Dymitry Firtash. Clearly, any materials Mr. Parnas received as a translator assisting attorneys in the representation of Mr. Firtash would be protected by attorney-client privilege. And that privilege would be held by Mr. Firtash, the client, not Mr. Parnas.

It’s increasingly clear what Parnas and Bondy are up to: They’re trying to make it politically (and given the OLC memo prohibiting the indictment of the President) bureaucratically impossible to pursue further charges. If everything recent Parnas did was done for the President, he shouldn’t be the only one facing prosecution for it.

Fruman, meanwhile, seems to be the sole member of the Joint Defense Agreement with the Russian Mob who is a party here, trying to prevent his position from deteriorating by speaking for all the affected parties, only without naming Rudy or Trump (presumably backed by the same old pardon promises Trump always uses to get witnesses against him to take the fall).

What’s not clear is what SDNY is up to. Because it sure seems like they’ve used Fruman to protect Trump’s and even Rudy’s interests.

Judge Oetken scheduled a hearing for Thursday to resolve all this. Which may be too late for Parnas’ play.

Mike Pompeo Can Find Proof that Obama Addressed Ukrainian Corruption in Trump’s Joint Defense Agreement

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Mike Pompeo had an unbelievably dickish interview with NPR’s Mary Louise Kelly this morning. In spite of the fact that Kelly alerted his staff she intended to ask about Iran and Ukraine, he complained when she turned to Ukraine. He falsely claimed he had defended everyone of his reports, including Marie Yovanovitch. And he reportedly accused Kelly of not being able to find Ukraine on a map (which she promptly did).

I was taken to the Secretary’s private living room where he was waiting and where he shouted at me for about the same amount of time as the interview itself.

He was not happy to have been questioned about Ukraine.

He asked, “do you think Americans care about Ukraine?”

He used the F-word in that sentence and many others. He asked if I could find Ukraine on a map. I said yes, and he called out for aides to bring us a map of the world with no writing. I pointed to Ukraine. He put the map away. He said, “people will hear about this.”

But the craziest thing might be Pompeo’s claim that President Obama did nothing to take down corruption in Ukraine.

Change of subject. Ukraine. Do you owe Ambassador Marie Yovanovitch an apology?

You know, I agreed to come on your show today to talk about Iran. That’s what I intend to do. I know what our Ukraine policy has been now for the three years of this administration. I’m proud of the work we’ve done. This administration delivered the capability for the Ukrainians to defend themselves. President Obama showed up with MREs (meals ready to eat.) We showed up with Javelin missiles. The previous administration did nothing to take down corruption in Ukraine. We’re working hard on that. We’re going to continue to do it. [my emphasis]

Pompeo has to say this, obviously, because a key Trump defense against impeachment is that Joe Biden was supporting, rather than combatting corruption. But a number of impeachment witnesses, including Marie Yovanovitch, explained at length the things Obama had done to combat Ukrainian corruption. It’s one of many reasons why Obama did not give lethal aid to Ukraine. Bruce Ohr, whom Trump has targeted for over a year, worked hard on the issue, too.

But the craziest part of this claim — that Obama did nothing to take down corruption in Ukraine — can be found in Trump’s own Joint Defense Agreement. There are two glaring exhibits of efforts taken under Obama to combat corruption: Dmitro Firtash, who was indicted for bribery by NDIL in 2013, is represented by Victoria Toensing and Joe DiGenova, who were consulting on Trump’s defense against the whistleblower complaint on October 8, 2019.

So, too, was Kevin Downing, Paul Manafort’s defense attorney. Manafort, of course, was ultimately found guilty of breathtaking corruption in Ukraine in an investigation that started in January 2016. Manafort lied to obstruct an investigation into what he was doing in a meeting on August 2, 2016, where he discussed how to get paid by several of his corrupt Ukrainian paymasters, shared his campaign strategy, and discussed how to carve up Ukraine to Russia’s liking; that investigation started just days later, on August 10, 2016.

In short, Obama’s DOJ opened a number of investigations into Ukrainian corruption. It just turns out that two of the most notorious defendants in those investigations are part of a Joint Defense Agreement with Pompeo’s boss.