So says NBC News, but even their sources point out the obvious. How can the federal government seize communications of an attorney without violating the confidentiality privilege? That depends on just what kind of role the attorney played — and for Rudy Giuliani and his multifaceted adventures in Ukraine, that’s an open question:
Federal prosecutors have discussed making a legal request for Rudy Giuliani’s electronic communications, two sources familiar with the probe tell NBC News, a sign that the investigation into President Donald Trump’s personal attorney remains active and may soon be ramping up.
Prosecutors for the Southern District of New York have been in communication with Justice Department officials in Washington about gaining access to Giuliani’s emails, the two sources said. The SDNY needs Washington’s approval before its prosecutors can ask a judge to sign a search warrant for materials that may be protected by attorney-client privilege, according to department policy. It is not known whether that approval has been granted by Washington to the SDNY.
The scope of the current investigation is unclear, but In October 2019, the Wall Street Journal reported that SDNY prosecutors were reviewing Giuliani’s bank records as part of an investigation into his dealings in Ukraine. Two of his former associates, Lev Parnas and Igor Fruman, were arrested that month on charges of campaign finance fraud and have since been charged with additional crimes related to wire fraud conspiracy. Parnas and Fruman have pleaded not guilty.
This investigation hasn’t been on the front burner much since the impeachment, but it’s apparently still active and might be heating up. The WSJ report from fourteen months ago left the impression that the DoJ’s interest in Giuliani involved his own business rather than his legal representation of others. If that’s the case, then the Department of Justice might not have much trouble getting warrants.
Let’s recall that the reports from October 2019 involved his associates, but also Giuliani’s business in security and intelligence — not attorney-client services:
Federal prosecutors in Manhattan are examining Rudy Giuliani’s business dealings in Ukraine, including his finances, meetings and work for a city mayor there, according to people familiar with the matter.
Investigators also have examined Mr. Giuliani’s bank records, according to the people.
Witnesses have been questioned about Mr. Giuliani since at least August by investigators, who also want to know more about Mr. Giuliani’s role in an alleged conspiracy involving two of his business associates, the people said. The investigation is being led by the U.S. attorney’s office in the Southern District of New York. …
During visits to Ukraine in 2017, he met with then-President Petro Poroshenko and then-Prosecutor General Yuriy Lutsenko and held meetings on behalf of his private security business in Kyiv and Kharkiv.
In May 2017, Giuliani Security & Safety inked a contract with the city administration of Kharkiv to streamline municipal emergency services, according to the company. A person familiar with the negotiations said Pavel Fuks, a Kharkiv native who had made a fortune in Russian real estate, paid the contract. Mr. Fuks didn’t respond to a request for comment.
If the feds think Giuliani committed crimes in Ukraine linked to GS&S, that’s not the same issue as if he committed crimes while acting as an attorney for Trump or anyone else. Theoretically, investigators can get warrants under either condition, as attorneys can and have been prosecuted along with their clients when collaborating to commit crimes. However, judges will be extremely reluctant to grant a warrant that pierces confidentiality between attorneys and clients. Investigators have to make a robust demonstration of fact to grant that kind of warrant.
Even if the probe doesn’t target Giuliani’s work as an attorney for a client, it might still be tough for the DoJ to get access to Giuliani’s communications. Regardless of his work at GS&S, Giuliani still obviously does work as an attorney and has one of the world’s most famous clients. Any seizure would have to be parsed very carefully to make sure that no privileged information gets exposed. At the very least, a court would likely appoint a special master to filter out the privileged information, but even getting that far would be no easy task for the DoJ — which is probably why they’re still mulling that idea fourteen months into the probe.