You do not have to be a legal scholar to know you’re in deep legal trouble if federal agents show up at your door with a search warrant to seize your electronic devices.
Renato Mariotti, an American attorney, legal commentator, acting fill-in anchor for WGN-TV and former federal prosecutor, wrote an opinion piece in Politico called “Giuliani’s Legal Trouble Is Trump’s Too”, and adequately lays out a case that we are seeing signs of legal problems for former President Donald Trump.
Rudy Giuliani, Trump’s lawyer, has attempted to downplay the danger he faces, claiming that whatever evidence is found on his phones shows that “the president and I…are innocent.”
Giuliani faces a lengthy court struggle, and his only defense would almost certainly pit him against his most high profile client.
If Trump refuses to willingly defend his one-time lawyer, Giuliani may have no alternative but to spill the tea on Donald Trump, which would be devastating for him.
When Trump allegedly declined to pay Giuliani for his failed attempt to reverse the November election outcome in January.
The lesson here is in the story of Michael Cohen, a former Trump legal fixer who turned on his employer after pleading guilty to election finance violations and fraud.
Despite Cohen’s claim that Trump was aware of the abuses, the president was shielded from prosecution while president by Department of Justice rules while in office.
Now that Trump is a civilian, such rules no longer apply to him, and he must be cautious with his own liability in the future.
There is no doubt that the execution of a search warrant at Giuliani’s home is a significant move forward in the ongoing case against him.
A search warrant cannot be obtained based on a hunch or mere speculation by federal prosecutors. They had to show a federal court that there was reasonable cause to conclude that a federal crime had been committed and that proof of the federal crime was found in Giuliani’s apartment and mobile devices. It’s noteworthy that a judge believed they meet that criterion.
As a result, investigators are likely to still have much of the proof they need. It is normal to procure any of a subject’s emails or electronic records from such outlets such as cooperators, subpoenas, or previous search warrants before requesting a search warrant for the subject’s electronic devices.
The evidence would be used to convince a court that such messages would be discovered on the devices as well. Even if investigators had some correspondence before receiving electronic devices, the devices themselves can contain additional data, such as deleted messages, metadata, and location data.
Despite the intense internal investigation that this matter will face within the Justice Department, we should be certain that the evidence was solid and substantial in this case.
Owing to the nuances of attorney-client confidentiality, any criminal prosecution of an attorney is a delicate matter, and the DOJ takes particular precautions when interviewing a criminal defense attorney to ensure that the agency does not appear to be prosecuting enemies.
Obtaining a search warrant for the former president’s personal lawyer’s home and computers would obviously draw even more attention from senior department leadership.
Surprisingly, the offence over which Giuliani is being investigated — violating the Foreign Agents Registration Act, which mandates foreign government agents who contact U.S. policymakers to report their association with the foreign government — has only been tried on a few occasions over the decades.
However, FARA cases increased significantly under the Trump presidency, including the high-profile convictions of former Trump campaign chairman Paul Manafort and former Republican finance chair Elliott Broidy.
An partner of former Trump national security adviser Michael Flynn was also charged with violating the FARA, but his sentence was later reversed.
This rash of FARA convictions prompted President Joe Biden to promise on the campaign trail that if elected, he would make greater use of FARA, stating that there should be no lobbying on behalf of foreign governments outside of normal diplomatic channels.
The probe is said to be centered on Giuliani’s attempts to pressure the Trump administration on behalf of Ukrainian politicians and oligarchs who were also assisting him in digging up dirt on then-candidate Biden and his family during the campaign.
Giuliani’s attempts to convince Trump to fire the ambassador to Ukraine, Marie Yovanovitch, whose anti-corruption work was seen negatively by those same Ukrainian authorities, are also at question.
If Giuliani pushed Trump to fire Yovanovitch on behalf of Ukrainian politicians, it may be the kind of international lobbying operation he could have disclosed.
So far, Giuliani has attempted to conceal himself behind technicalities, claiming that he did not have a signed deal with a foreign official or oligarch. He’s not going to get away with that in court.
What matters is whether he was a foreign government agent, not whether his association with that foreign government was recorded in writing.
You cannot escape FARA provisions by failing to document the specifics of your relationship with a foreign government.
Giuliani’s job in Ukraine has been a source of contention for the past two years, and it was crucial to the first impeachment investigation into Trump’s pressure on Ukraine’s new president.
However, according to The New York Times, top DOJ political appointees regularly attempted to obstruct the search warrants, implying that the department has had the information it needs against Giuliani for some time.
Efforts to stall the investigation in the past would not help Giuliani now. If it is shown that they were carried out at Giuliani’s request, they will ultimately act against him.
Giuliani’s erroneous public comments (he falsely said that search warrants should only be released where there is a fear that evidence will be destroyed) will also not support him if he is eventually prosecuted. At that point, he’ll have to devise a defensive tactic that will pit him against his former client.
Giuliani’s defense would almost certainly be that he was behaving entirely at Trump’s request, and that his efforts on behalf of the officials and oligarchs were done to win favour with them on Trump’s behalf, and were only at Trump’s behest and with Trump’s awareness.
From a trial tactic standpoint, Giuliani’s strongest defense would give testimony from the former president that he was aware of all Giuliani was doing and approved of any step he took.
That would allow Giuliani’s defense team to argue that since he was primarily supporting Trump’s interests, he was acting on behalf of the United States rather than Ukrainian oligarchs.
Unfortunately for Giuliani, Trump is not known for standing up for disgraced former aides, particularly where doing so would result in personal humiliation or liability.
Given how Trump distanced himself from former lawyer Michael Cohen in the face of comparable risk, it’s difficult to envision the former president taking an oath to say the truth and subjecting himself to withering cross-examination that might shame him at best or open him to criminal liabilities at worst.
Trump’s track record of lying under oath in civil suit depositions is well established.
The one guaranteed way for Trump to stop testifying in Giuliani’s trial will be to take the Fifth, but Trump has said previously that taking the Fifth makes you appear guilty.
The only way he can avoid testifying is to claim that he didn’t know what Giuliani was up to and didn’t approve of his actions.
That would render him useless as a witness for Giuliani, forcing Giuliani to point the finger at Trump in order to save himself.
The five-year sentence Manafort got for conspiracy to breach FARA provides Giuliani with enough opportunity to do so, particularly because Trump is no longer able to pardon him.
When a lawyer, especially a well-known former federal prosecutor like Giuliani, faces jail time, the pressure to lessen the sentence is strong. Giuliani, like Michael Cohen, would have the reason to cooperate with federal authorities if it means reducing his jail time.
Given his position in everything from Trump’s impeachment defense to the Jan. 6 insurgency, the Giuliani trial may be much more consequential than it seems at first glance.
Giuliani’s allegiance seems to have a short shelf life in the absence of Trump’s security or financial assistance.