Editor’s Note: Jennifer Rodgers is a former federal prosecutor, adjunct professor of Clinical Law at NYU School of Law, lecturer-in-law at Columbia Law School, and a CNN legal analyst. The opinions expressed here are her own. Read more opinion at CNN.
Eighteen months ago, media reports indicated that Rudy Giuliani, former President Donald Trump’s personal lawyer, was under scrutiny by federal prosecutors at the US Attorney’s Office for the Southern District of New York for actions related to his involvement in the Ukraine scandal that led to Trump’s first impeachment.
Given the time that has passed, one could be forgiven for thinking that the investigation had petered out and that Giuliani was in the clear. All that changed early Wednesday morning, however, when FBI agents showed up at Giuliani’s home and office to execute a search warrant approved by a federal judge, and later did the same with respect to fellow lawyer Victoria Toensing, a major sign that the investigation is not just still alive, but that it is ramping up in a big way. (In a statement to The Wall Street Journal, Ms. Toensing’s law firm said she had been informed she wasn’t a target of the investigation.)
The crimes under investigation, according to The New York Times, relate to whether Giuliani acted as an unregistered foreign agent – namely, that if while he was working on Trump’s behalf to get Ukrainian officials to announce a criminal investigation into the Bidens, Giuliani was also lobbying US officials about matters of interest to Ukrainians with whom Giuliani was working, like the removal of then-US Ambassador to Ukraine Marie Yovanovitch.
Pursuant to the Foreign Agents Registration Act (FARA), trying to influence US policy at the direction of a foreign actor without registering as an “agent of a foreign principal” is illegal; for national security reasons, the US government wants to know the identities of the interests behind those lobbying US officials on matters of US and foreign policy.
One may ask: why did it take so long to get around to executing search warrants? We don’t know for sure, and likely never will given the confidentiality around internal deliberations involving criminal investigations at DOJ, but The New York Times is reporting that there may have been politically motivated action taken to delay and then refuse to approve the warrant under the Trump administration. Search warrants involving lawyers like Giuliani carry particularly onerous approval requirements, because of concerns around breaching the attorney-client privilege by gaining access to communications between a lawyer and his client.
That means that these particular warrants would have been sent through the chain of command at the US Attorney’s Office, up to Acting US Attorney Audrey Strauss, and then down to the Justice Department in Washington for another set of approvals. In the past, approval was required from a special unit at DOJ called the Office of Enforcement Operations that handles particularly sensitive search warrants, including warrants for lawyers; now, due to a rule change, billed as a “clarification,” by former Deputy Attorney General Jeffrey Rosen shortly before he left office at the end of the Trump administration, search warrant requests involving lawyers also must be approved all the way up to the Deputy Attorney General him- or herself.
Thus, in this case, before presenting the warrant to a judge, the Giuliani and Toensing search warrants also would have been approved by DOJ’s second-in-command, now Lisa Monaco. Once approval is given, prosecutors take the application to a federal judge, who must be satisfied that there was probable cause to believe that a crime has been committed and that the evidence sought would be relevant to proving that crime.
Now that the search has occurred and evidence has been seized, I expect a few things to happen. As would be expected, Giuliani, who has long denied any wrongdoing, is ramping up his defense in the court of public opinion. We heard comments from Giuliani’s lawyer Robert Costello, who complained that execution of the warrant was “legal thuggery” because Giuliani served as associate attorney general and US attorney, as well as Trump’s lawyer. Giuliani’s son, Andrew Giuliani, also chimed in with comments suggesting political bias in the case.
I also expect significant litigation over the seized information to happen before the prosecution team is able to review it. Prosecutors certainly will be prepared to create a walled-off two-team review system to ensure protection of attorney-client privilege. But I expect – as we saw when another Trump personal lawyer, Michael Cohen, was served with a search warrant as part of his criminal investigation by SDNY – that Giuliani will challenge them every step of the way.
Get our free weekly newsletter
Once the legal challenges are dispensed with and the investigative team is able to review the evidence they collected, they will conduct any necessary follow-up investigation before making a charging decision. And while the FARA charges described above may be the most likely at this moment, new and additional offenses often come to light as an investigation proceeds, so it’s impossible to say where authorities may end up.
In the end, then, while executing a search warrant certainly was a major event in the already lengthy saga of the investigation of Rudy Giuliani, there remains a long road ahead before we will know whether Giuliani faces arrest and criminal prosecution by the office he used to lead.