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Opinion |  Giuliani’s legal problem is Trump’s too

There is no doubt that the execution of a search warrant at Giuliani’s residence is a serious step which indicates that the criminal investigation against him is well advanced. Federal prosecutors cannot obtain a search warrant on the basis of intuition or mere suspicion. They had to present substantial evidence to a federal judge that there is good reason to believe that a federal crime has been committed and that the evidence of this federal crime was in Giuliani’s apartment and his electronics. It is significant that a judge was convinced that he met this standard.

For this reason, prosecutors probably already have a lot of evidence they need. During my tenure as a federal prosecutor, when I applied for a search warrant for a subject’s electronic devices, I had usually already obtained some of the subject’s communications or electronic documents from other sources such as cooperators, citations appearances or previous search warrants. I used this evidence to persuade a judge that these communications would be on the devices as well. Even though prosecutors have some communications before getting electronic devices, devices may contain more data, including deleted messages, metadata, and location information.

In this particular case, one can be sure that the evidence was solid and substantial given the important internal control that this case would be subject to within the Ministry of Justice. The criminal investigation into any counsel is a sensitive issue due to the complexities caused by solicitor-client privilege, and the DOJ takes special care when investigating a criminal defense lawyer, to ensure that the department does not appear target opponents. Obviously, obtaining a search warrant for the residence and devices of the former president’s personal attorney would be subject to even greater scrutiny from the department’s senior management.

Oddly enough, the crime Giuliani is being investigated for – a violation of the Foreign Agent Registration Act, which requires agents of foreign governments who pressure US authorities to disclose their dealings with the government. foreigner – has only rarely been prosecuted over the decades. But FARA prosecutions increased during the Trump administration, including the high-profile sentencing of former Trump campaign chairman Paul Manafort and former Republican finance chairman Elliott Broidy. (An associate of Trump’s former national security adviser Michael Flynn was also indicted for a FARA violation, but the conviction was later overturned.) This group of FARA prosecutions led President Joe Biden to embark on the trail of the campaign to increase use of FARA if elected, asserting that there should be no lobbying on behalf of foreign governments outside regular diplomatic channels.

The probe would focus on Giuliani’s efforts to pressure the Trump administration on behalf of Ukrainian officials and oligarchs who also helped him unearth then-candidate Biden and his family during the campaign. Also at issue are Giuliani’s efforts to persuade Trump to oust Ukraine Ambassador Marie Yovanovitch, whose anti-corruption work has been greeted with hostility by these same Ukrainian officials. If Giuliani’s efforts to push Trump to fire Yovanovich had been done on behalf of Ukrainian officials, this could be the kind of foreign lobbying activity he should have disclosed.

So far, Giuliani has tried to hide behind simple technical details, arguing that he does not have a written contract with a foreign official or an oligarch. He won’t get away with this in court. What matters is whether he was an agent of a foreign government, and not whether his relationship with that foreign government has been commemorated in writing. You cannot avoid FARA’s requirements by failing to write down the details of your agreement with a foreign government.

Giuliani’s work in Ukraine has been the subject of controversy for two years and was at the heart of the first impeachment inquiry over Trump’s pressure on the new Ukrainian president. But, According to the New York Times, senior DOJ politicians within the Department of Justice have made several attempts to block search warrants, suggesting the department has had the evidence it needs against Giuliani for some time. .

These earlier efforts to slow down the investigation won’t help Giuliani now. If anything, they can possibly work against Giuliani if ​​it is shown that they were done at his request. Giuliani’s senseless public statements (he falsely claimed that search warrants can only be issued if there is a fear that the evidence will be destroyed) will also not help him if he is ultimately charged. At this point, he will need to adopt a defense strategy that could put him at odds with his former client.

Giuliani’s defense will likely be that he was acting completely at Trump’s leadership and that his efforts on behalf of officials and oligarchs were made to curry favor with them on behalf of Trump, and were made at the behest of Trump. Trump and to his knowledge. From a purely strategic standpoint of the trial, Giuliani’s best defense would include the former president’s testimony that he knew everything Giuliani did and approved of every action he took. This would allow Giuliani’s defense team to argue that, as he was ultimately advancing Trump’s interests, he was in fact working on behalf of the United States, not the Ukrainian oligarchs.

Unfortunately for Giuliani, Trump isn’t known to cringe for disgraced former aides, especially if it would involve personal embarrassment or potential liability. Considering how Trump distanced himself from former lawyer Michael Cohen when faced with a similar peril, it’s hard to imagine the former president taking an oath to tell the truth and submitting to a counter – scary interrogation that could embarrass him or expose him to potential at best. responsibility at worst. (Trump’s record of lying under oath in civil suit depositions is well documented.)

The only surefire way for Trump to avoid testimony in Giuliani’s trial would be to take the fifth, but Trump has repeatedly noted that taking the fifth makes you look guilty. The only way for him not to testify is to suggest that he didn’t really know what Giuliani was doing and didn’t approve of his activities. This would render him useless for Giuliani as a witness and force Giuliani to point the finger at Trump in order to save himself. Manafort’s five-year sentence for conspiring to rape FARA is a big incentive for Giuliani to do so, especially since he knows Trump can no longer forgive him.

When a lawyer, especially a famous former federal prosecutor like Giuliani, faces a prison sentence, the incentive to reduce that sentence is significant. Much like Michael Cohen, Giuliani would have a vested interest in helping federal prosecutors if it could potentially reduce his prison term. This could make Giuliani’s lawsuit much more substantial than it first appears, given his role in everything from defending Trump’s impeachment to the Jan.6 insurgency.

Without Trump’s protection or financial backing, Giuliani’s loyalty would appear to have a finite life.

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