Federal prosecutors are reportedly interested in obtaining records of electronic communication from Rudy Giuliani, President Donald Trump’s lawyer. According to NBC news, two sources said that prosecutors in Southern District of New York have discussed requests for access to Giuliani’s emails with unspecified Department of Justice officials. The investigation into Giuliani is said to be “very active.”
The investigatory request is quite the procedural pretzel in its own right: Giuliani himself was once the U.S. Attorney for the Southern District of New York prior to becoming the mayor of New York City. Now, that same office must request permission from the Trump administration DOJ in order to proceed with the request – all while Giuliani continues to sit at the right hand of the president and as Attorney General Bill Barr heads out the door.
At this point, only general information has been confirmed about the probe into Giuliani’s conduct. The Wall Street Journal reported in 2019 that the investigation was targeting Giuliani’s potentially illegal gains from his work with Lev Parnas and Igor Fruman in a Ukrainian natural-gas business. Parnas and Fruman already face federal prosecution on multiple fraud charges.
Legal and law enforcement experts have pointed out that the reported discussions regarding Giuliani’s emails suggests that the investigation is getting close to him.
Prosecutors can obtain emails only if they first have probable cause that a crime has been committed.
Read: SDNY is fairly close on Rudy. (And a pardon stops this in its tracks – unless the state picks it up). https://t.co/HFZp6Co0eO
— Elie Honig (@eliehonig) December 22, 2020
— Frank Figliuzzi (@FrankFigliuzzi1) December 22, 2020
Law&Crime spoke with former federal and state prosecutor Elie Honig, who is also a CNN legal analyst. Honig explained why DOJ approval would be necessary in this case.
“Normally DOJ has to approve a case involving a search warrant on an attorney (such as Giuliani). So Main Justice would have at least that supervisory role regardless of administration,” he said. Furthermore, while not required by law, clarified Honig, “prosecutors are supposed to at least notify Main Justice of sensitive investigations, which likely includes this one.”
“Generally this suggests to me that the SDNY investigation is active and has developed at least probable cause, which is required for a search warrant,” he added.
Any federal investigation or prosecution of Rudy Giuliani, though, could be stopped by a presidential pardon. Given Giuliani’s loyalty to the 45th president since the early days of the Mueller investigation and beyond, many have wondered if he will be on the list of those gifted in a coming “wave of pardons.” Still others have wondered whether federal prosecutors will wait to pounce until after President-elect Joe Biden enters the Oval Office.
Either way, New York State has already prepared for a scenario like this by employing some legal maneuvering of its own. The Empire State passed a law in Oct. 2019 that closed the so-called double-jeopardy loophole–but only as it might apply to presidential cronies. The change was adopted specifically as a means of thwarting President Trump in using his presidential pardon power; under the new law, Giuliani could be prosecuted by New York State even if he received a presidential pardon, and if the pardon was gifted in exchange for materially benefitting the president.
Prior to New York’s legislative change, the state had self-imposed a general limitation on its own sovereignty—shielding those who have been federally pardoned from a subsequent state prosecution. Law&Crime spoke today with NYS Senator Todd Kaminsky (D) about the revision to the New York law, which he sponsored; Kaminsky is a former prosecutor focused on public integrity that wrote New York’s double jeopardy law allowing state officials to prosecute individuals despite a politically-motivated pardon. Kaminsky explained that the motivation for passing the legislation was to prevent corruption: “We wanted to make sure that this president or any president is unable to use their pardon power corruptly in a way that undermines the rule of law, at least within the borders of our state.”
Kaminsky also acknowledged the law’s applicability to a state prosecution of the former New York City mayor. “From what I know,” Kaminsky said, “this seems like something our law is directly meant to address, which is someone within the president’s orbit who is involved with an investigation.” “Right now, there’s a feeling among the president’s inner circle that they own the law, that they can do whatever they want,” he continued, “and that they’re above the grasp of any accountability. That’s what this law is meant to prevent.”
Kaminsky who warned President Trump about the limits of his pardon power in a letter sent last Friday, concluded our interview today by promising that New York State stands at the ready in the event Giuliani receives a pardon. “We have very able local prosecutors who are ready to take charge, and we have cleared their way to do so,” he said.
Robert J. Costello, an attorney for Rudy Giuliani, did not immediately respond to a request for comment.
[image via Drew Angerer/Getty Images]
Editor’s Note: This piece was updated to include legal analysis from Elie Honig.
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