Search and Seizure

Prosecutors investigating Rudolph W. Giuliani’s work in Ukraine have seized his electronic devices, a move his lawyers are now questioning.Rudolph W. Giuliani on Monday opened a broad attack on the searches that federal investigators conducted of his home, his office and his iCloud account, asking a judge to block any review of the seized records while his lawyers determine whether there was a legitimate basis for the warrants, according a court filing made public on Monday.Mr. Giuliani’s lawyers are seeking copies of the confidential government documents that detail the basis for the search warrants, a legal long shot that they hope could open the door for them to argue for the evidence to be suppressed. Typically, prosecutors only disclose such records after someone is indicted and before a trial, but Mr. Giuliani, who is under investigation for potential lobbying violations, has not been accused of wrongdoing.A spokesman for the U.S. attorney’s office declined to comment on Monday.In a 17-page letter to the judge who authorized the searches, Mr. Giuliani’s lawyers argued that it would have been more appropriate — and less invasive — for the U.S. attorney’s office in Manhattan to seek information through a subpoena, which, unlike a warrant, would have given him an opportunity to review the documents and respond.Justice Department policy recommends that prosecutors use subpoenas when seeking information from lawyers, unless there is a concern about destruction of evidence.The defense lawyers wrote that prosecutors “simply chose to treat a distinguished lawyer as if he was the head of a drug cartel or a terrorist, in order to create maximum prejudicial coverage of both Giuliani and his most well-known client — the former president of the United States.”The lawyers also disclosed that the government had claimed in a November 2019 search warrant for Mr. Giuliani’s iCloud account that the search needed to be a secret because of concerns he might destroy records or intimidate witnesses.Though the government routinely cites concern about potential destruction of records when seeking search warrants, Mr. Giuliani’s lawyers attacked the idea that their client, himself a former federal prosecutor and onetime personal lawyer to President Donald J. Trump, would ever destroy evidence.“Such an allegation, on its face, strains credulity,” the lawyers, including Robert J. Costello and Arthur Aidala, wrote. “It is not only false, but extremely damaging to Giuliani’s reputation. It is not supported by any credible facts and is contradicted by Giuliani’s efforts to provide information to the government.”The judge who approved the warrants, J. Paul Oetken of Federal District Court, will ultimately decide whether Mr. Giuliani will have access to the confidential government materials underlying them.Mr. Giuliani’s court filing came in response to the government’s request that Judge Oetken appoint a so-called special master to review cellphones and computers seized in the search of Mr. Giuliani’s home and office in Manhattan on April 28.The special master — usually a retired judge or magistrate — would determine whether the materials contained in the devices are covered by attorney-client privilege and as a result cannot be used as evidence in the case. He or she would filter out privileged communications not only between Mr. Giuliani and Mr. Trump, but also between Mr. Giuliani and his other clients.Mr. Giuliani’s lawyers called the appointment of a special master “premature,” because they are first seeking copies of the search warrant materials.The authorities want to examine the electronic devices for communications that might reveal whether Mr. Giuliani violated lobbying laws in his dealings in Ukraine, The New York Times has reported.While serving as Mr. Trump’s personal lawyer before the 2020 presidential election, Mr. Giuliani sought to uncover damaging information on President Biden, then a leading Democratic contender.At issue is whether Mr. Giuliani was at the same time lobbying the Trump administration on behalf of Ukrainian officials who were assisting him in the search.It is a violation of federal law to lobby the U.S. government on behalf of foreign officials without registering with the Justice Department. Mr. Giuliani never registered as a lobbyist for the Ukrainians. He has maintained that he was working only for Mr. Trump.One day after the search, the U.S. attorney’s office told Judge Oetken in a letter that the F.B.I. had begun to extract materials from the seized devices but had not yet begun reviewing them.In the letter, the prosecutors said the appointment of a special master might be appropriate because of “the unusually sensitive privilege issues” raised by the searches, citing, for example, Mr. Giuliani’s representation of Mr. Trump.Communications between lawyers and their clients are generally shielded from investigators in the United States, and communications between presidents and their aides enjoy a similar protection, known as executive privilege.“Any search may implicate not only the attorney-client privilege but the executive privilege,” the office of Audrey Strauss, the U.S. attorney in Manhattan, wrote.In seeking the appointment of a special master to review Mr. Giuliani’s materials, the prosecutors cited their office’s investigation of Michael D. Cohen, another of Mr. Trump’s former lawyers.In that case, federal agents seized documents and electronic devices in an April 2018 search of Mr. Cohen’s office, apartment and hotel room. A judge appointed Barbara S. Jones, a retired judge, to determine whether those materials were off-limits to investigators because of attorney-client privilege.Ms. Jones ultimately concluded that only a fraction of Mr. Cohen’s materials were privileged and that the rest could be provided to the government. That August, Mr. Cohen pleaded guilty to campaign finance violations and other crimes. More