Federal Judge Smacks Down Rudy Giuliani’s Request to Review Evidence Behind Search Warrants

United States District Judge J. Paul Oetken of the Southern District of New York on Friday smacked down former New York City Mayor Rudy Giuliani’s request that he be granted access to the evidence obtained by federal investigators that led to search warrants being executed against him.

Photo by Rey Del Rio/Getty Images

In a seven-page ruling, Oetken said that Giuliani and his pro-Donald Trump attorney, Victoria Toensing, have no legal standing because neither of them have been charged with a crime:

Giuliani and Toensing argued that the materials seized pursuant to the April 2021 warrants should be returned to them so that they may review them in the first instance for responsiveness and privilege. In effect, they ask the Court to require the Government to proceed by subpoena rather than by search warrant.

Guiliani’s and Toensing’s position lacks legal support. The search warrants at issue here were based on judicial findings of probable cause — supported by detailed affidavits — to believe that evidence of violations of specified federal offenses would be found at the locations to be searched. There is no legal requirement for the Government to proceed by subpoena, nor is there any basis for the subject of an investigation to require it to do so.

Oetken was simply not buying Giuliani’s contention that attorney-client privilege precludes lawyers from being subjected to lawful searches and seizures:

Giuliani and Toensing contend that their status as lawyers, including Giuliani’s status as a lawyer to the former President, makes these searches problematic. 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.’

[A] criminal enterprise does not exempt itself from a search warrant by conducting its business and keeping its records in its lawyer’s office.’ 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.

Further, Oetken stated, Giuliani and Toensing have no legal right to access confidential documents:

Giuliani and Toensing also seek the ‘return’ of the results from earlier search warrants of their iCloud and email accounts, which were issued in 2019 pursuant to the Stored Communications Act, 18 U.S.C. §§ 2701 et seq. With respect to these 2019 warrants, the Government represents that it has utilized a ‘filter team’ — a separate group of attorneys and agents who were not part of the investigative team — to review materials for privilege. Only those materials determined by the filter team to be not potentially privileged have been released to the investigative team, according to the Government.

Oetken also added:

Giuliani and Toensing also seek pre-indictment discovery of the Government’s privilege and responsiveness designations in connection with the 2019 warrants. They cite no legal authority for this request, and the Court is aware of none. If there is a criminal proceeding, any defendants will be entitled to discovery under Rule 16. There is no basis for compelling the Government to produce this information now, during an ongoing grand jury investigation. Finally, the Court sees no legal basis for Toensing’s request for detailed information about the filter team review process, at least at the pre-charge phase of this matter. Accordingly, these requests are denied.

He noted:

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. He will also be able to file motions challenging the warrants under Rule 12. But such disclosure is premature at the present stage. This request is therefore denied.

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