Granting federal prosecutors’ request for a special master, a federal judge rejected Rudy Giuliani and his fellow pro-Trump lawyer Victoria Toensing’s requests for the government to disclose more information about the basis for their search warrants.
“Giuliani and Toensing contend that their status as lawyers, including Giuliani’s status as a lawyer to the former President, makes these searches problematic,” U.S. District Judge J. Paul Oetken, a Barack Obama appointee, wrote in a seven-page opinion on Friday. “To be sure, ‘a law office search should be executed with special care to avoid unnecessary intrusion on attorney-client communications.'”
“But lawyers are not immune from searches in criminal investigations. Rather, a law office search ‘is nevertheless proper if there is reasonable cause to believe that the specific items sought are located on the property to be searched,” the ruling continues. “The searches here were based on probable cause, and it is precisely to avoid ‘unnecessary intrusion on attorney-client communications’ that the Government is seeking appointment of a special master.”
Roughly a week after the raid on Giuliani’s home and office, federal prosecutors set the stage for the sort of attorney-client privilege fight that unfolded in the Southern District of New York some three years ago in the case of Trump’s ex-fixer Michael Cohen. The government asked the judge to appoint a special master to assess the thorny privilege issues involving a practicing attorney whose sometime client is a former president of the United States.
Giuliani demanded the law enforcement affidavits that supported the searches earlier this year and in late 2019, but prosecutors argued there was no reason not to proceed in the usual course, noting the big-name attorneys aren’t “above the law.”
In all respects, Judge Oetken found in favor of the government.
“Giuliani cites no precedent — and the Court is aware of no authority — for the proposition that the Fourth Amendment (or any other constitutional or statutory provision) gives a person who has not been charged a right to review a search warrant affidavit during an ongoing investigation,” Oetken wrote.
The judge added that demanding this information now was premature.
“If Giuliani is charged with a crime, of course, he will be entitled to production of the search warrant affidavits as part of discovery pursuant to Federal Rule of Criminal Procedure 16,” the judge noted.
Oetken also rejected the pair’s request for pre-indictment discovery on the fruits of the government’s search, and Toensing’s request for the return of her cell phone, which authorities seized in April.
The judge agreed with the government that a special master would enhance public confidence that Giuliani and Toensing’s attorney-client privileges are being respected.
“The Court agrees that the appointment of a special master is warranted here to ensure the perception of fairness,” the ruling states. “The special master will expeditiously conduct a filter review of the April 2021 warrant materials for potentially privileged documents, and that review can be informed by Giuliani’s and Toensing’s parallel review of the same materials. The Government’s investigative team will thereafter conduct a responsiveness review of the released materials.”
The parties must propose potential candidates for the special master by June 4.
Giuliani’s lawyer Robert Costello called the ruling unsurprising.
“We knew that a Special Master was inevitable, which is why we did not oppose it, so this ruling comes as no surprise to us,” Costello told Law&Crime in an email.
He did not answer questions about the rejection of his client’s requests—or his potential candidates for that special master’s review.
Toensing’s lawyer did not immediately respond to an email requesting comment.
Read the judge’s ruling below:
(Giuliani image via Saul Loeb/AFP/Getty; Toensing screengrab via Fox News/Lou Dobbs)
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