December 4, 2023

A federal judge on Friday agreed to appoint a special master to recommend what evidence prosecutors can see from recently seized material on search warrants from Rudy Giuliani, who is under investigation, and another attorney allied with former President Donald Trump.

In the same ruling, Manhattan Federal Supreme Court judge J. Paul Oetken denied a number of motions related to these arrest warrants from Giuliani, who turned 77 on Friday, and the other attorney, Victoria Toensing.

Oetken brushed aside the arguments of Giuliani and Toensing, who, in his opinion, actually argued that prosecutors should conduct their investigations through subpoenas for information “rather than through a search warrant”.

“Guiliani and Toensing’s position lacks legal support,” Oetken wrote in an order.

“The search warrants at issue here were based on judicial findings of a probable reason – based on detailed affidavits – to believe that indications of violations of certain federal offenses would be found in the locations to be searched. There is no legal obligation for the Government to do this. ” proceed by subpoena, nor is there any basis for the subject matter of investigation to require it. “

Giuliani is under investigation by the US attorney for the New York South District, a position he once held, because of his activities in Ukraine.

Prosecutors are investigating whether he violated federal lobbying law by failing to register as a lobbyist for companies that have taken various actions related to Ukraine, including removing the American ambassador under Trump.

Giuliani, a former New York mayor who served as Trump’s personal attorney, denies any wrongdoing.

The special master is checking files on electronic devices that were seized in April from Maryland residents Giuliani and Toensing for material that may be privileged and inaccessible to prosecutors and investigators.

This material could include documents exchanged between Giuliani and clients such as Trump that could be exempt from disclosure to prosecutors because of the attorney-client privilege.

The same special Masters procedure was used to review materials that Trump’s former personal attorney Michael Cohen had seized in 2018 as part of a state criminal investigation that ended in Cohen’s conviction.

Oetken noted that prosecutors suggested treating the electronic equipment seized from Giuliani and Toensing in the same way as Cohen’s “given the parallels to the matter”.

“The court agrees that the appointment of a special master is justified here in order to ensure the perception of fairness,” Oetken wrote in his decision.

Both attorneys had asked Oetken to return seized materials for their own review, return the results of searches of their iCloud and email accounts in 2019, and revoke the affidavits that justified the search warrants for Giuliani in 2019 and were submitted in 2021.

“Giuliani and Toensing claim that their status as attorneys, including Giuliani’s status as attorney for the former president, makes these searches problematic,” Oetken wrote in the decision when he denied these requests.

“But attorneys are not immune to searches during criminal investigations,” the judge wrote.

“Rather, a search in a law firm” is still appropriate if there is reason to believe that the objects sought are on the property to be searched, “wrote the judge, citing an earlier court decision.

Oetken also turned down Toensing’s request that the government return her iPhone, Google and iCloud data.

“The government has already returned Toensing’s cell phone and it appears to have access to its iCloud and email accounts, so it appears to object to the government keeping a copy of this information,” Oetken said.

The judge noted “there is nothing inappropriate or illegal about government retention” and said Toensing would have a chance to challenge privileges.

Giuliani’s attorney Arthur Aidala said in a text message to CNBC: “We knew a special master was inevitable, so we didn’t speak out against it. So this verdict comes as no surprise to us.”

Michael Bowe, a Toensing attorney, told CNBC, “We have no comment at this time.”

Giuliani’s lawyers argue that finding his iCloud – which Giuliani hadn’t known about for about 18 months – may have violated his legal and client rights, and Trump’s right as president to protect his communications with his attorney.

They say recent search warrants may be compromised by their reliance on information from iCloud search.

Aidala denied a prosecutor’s claim last week that Giuliani had somehow argued that he was above the law in challenging the search warrants.

“Nobody says that Mayor Giuliani is above the law,” Aidala told CNBC at the time.

“However, the government has a duty to follow the specific procedures that must be followed when examining material obtained from a lawyer using a search warrant rather than issuing a subpoena.”

“Every lawyer has legal and client rights that he must protect on behalf of his clients,” he said. “That privilege is doubled when the attorney’s client is the President of the United States, who also has executive privilege.”