A federal judge on Friday agreed to appoint a special master to recommend what evidence prosecutors should see from material recently viewed through search warrants from Rudy Giuliani, who is under investigation, and another attorney allied with former President Donald Trump can be.
In the same ruling, Manhattan Federal Court Justice J. Paul Oetken denied a number of motions related to these arrest warrants from Giuliani, who turned 77 on Friday, and fellow attorney Victoria Toensing.
Oetken brushed aside the arguments of Giuliani and Tönsing, who, in his view, argued that prosecutors should conduct their investigations with subpoenas for information “rather than with a search warrant”.
“The position of Guiliani and Tönsing lacks legal support,” Oetken wrote in an order.
“The search warrants at issue here were based on judicial findings with a probable cause – supported by detailed affidavits – on the assumption that evidence of violations of certain federal offenses would be found in the locations to be searched. There is no legal obligation on the government to commence subpoenas, nor is there any basis for the subject of an investigation to require it. “
The US prosecutor for the southern district of New York is investigating Giuliani, a position he once held because of his activities in Ukraine.
Prosecutors are watching to see if he broke federal lobbying law by not registering as a lobbyist for companies seeking various actions related to Ukraine, including removing the American ambassador under Trump.
Giuliani, a former New York mayor who served Trump as his personal lawyer, denies any wrongdoing.
The special master will review electronic device files that were confiscated in April from Maryland residents, Giuliani and Toensing, for material that may be privileged and excluded from viewing by prosecutors and investigators.
Such material could include documents exchanged between Giuliani and clients such as Trump that could be exempt from disclosure to prosecutors due to legal confidentiality.
The same special master’s process was used to review materials seized in 2018 from Trump’s former personal attorney Michael Cohen as part of a federal criminal investigation that ended in Cohen’s conviction.
Oetken pointed out that prosecutors suggested treating the electronic devices seized from Giuliani and Tönsing “in the same way as Cohen’s, given the parallels to the matter”.
“The court agrees that the appointment of a special master is justified in order to guarantee fairness,” Oetken wrote in his decision.
Both lawyers had Oetken return the seized materials for their own review, return the results of the searches of their iCloud and email accounts in 2019, and unseal the affidavits submitted to justify the search warrants for Giuliani in 2019 and Asked in 2021.
“Giuliani and Tönsing claim that their status as attorneys, including Giuliani’s status as the former president’s attorney, makes these searches problematic,” Oetken wrote in the order when he denied these requests.
“But lawyers are not immune to searches in criminal investigations either,” the judge wrote.
“Rather, a law firm search ‘is appropriate if there is justified reason to assume that the objects sought are on the property to be searched'”, the judge wrote, referring to an earlier court decision.
Oetken also denied Toensing’s request to give the government their iPhone and Google and iCloud data back.
“The government has already returned Toensing’s cell phone, and it appears to have access to her iCloud and email accounts. It therefore appears to be against the government keeping a copy of this information,” Oetken said.
The judge found “there is nothing improper or illegal about the government holding them back,” and said Tönsing would have the opportunity to challenge privileges.
Giuliani’s attorney Arthur Aidala said in a text message to CNBC: “We knew a special master was inevitable, so we didn’t speak out against it, so we’re not surprised by this verdict.”
Michael Bowe, an attorney for Tönsing, told CNBC, “We have no comment at the moment.”
Giuliani’s lawyers argue that the search of his iCloud – which Giuliani was unaware of for about 18 months – may have violated his legal secrecy and Trump’s right as president to protect his communications with his attorney.
They say recent search warrants may have been compromised by their reliance on information from iCloud search.
Aidala denied a prosecutor’s claim last week that Giuliani had somehow argued that he was above the law in challenging the search warrants.
“Nobody says that Mayor Giuliani is above the law,” Aidala told CNBC at the time.
“However, the government is required to follow the specific procedures that must be followed when reviewing material obtained from a lawyer through a search warrant rather than issuing a subpoena.”
“Every lawyer has legal privilege that he must protect on behalf of his clients,” he said. “That privilege is doubled when the attorney’s client is the President of the United States, who also has executive privilege.”