The Foreign Agents Registration Act is the last refuge of a prosecutorial scoundrel. That was my reaction to the New York Times story yesterday reporting that Rudy Giuliani is under investigation for an alleged FARA violation. The Times has a follow-up story here today with additional information on the focus of the investigation. My reaction was of course elicited by Robert Mueller’s persecution of Michael Flynn.
The FBI showed up at Giuliani’s apartment around 6:00 a.m. this past Wednesday morning to seize his cell phones and computers with warrants issued in the investigation. Giuliani is himself a former United States Attorney of some notable accomplishment. In that capacity I think he accorded Michael Milken a serious taste of the unsavory treatment Flynn later received from Mueller, but put that to one side. He is President Trump’s former lawyer and when it comes to federal criminal procedure, he knows what he’s talking about.
Last night Giuliani sat down for an interview with Tucker Carlson about the seizure of his devices along with two in his possession owned by a third-party. I have posted the 10-minute video at the bottom. Tom Lifson takes Giuliani’s statements at face value and comments favorably on the interview in this American Thinker post. Please check it out. Tom takes up a few points that I am glossing over here. I am dubious of two of Giuliani’s statements. I think they are worth noting and doubt that they should be taken at face value.
Giuliani emphasized that the warrants required the agents to take all electronic devices within the scope of the warrants, and yet they failed to take three Hunter Biden hard drives in his possession. He emphasized and reiterated this several times, including one point at which he referred to the warrants as a subpoena. I note in passing that it is a rare case in which the subject of a search warrant complains that the officers didn’t seize enough evidence.
As I understand the law, a warrant only authorizes the seizure of items within its scope. Officers generally have discretion to execute the warrant in good faith. I am aware of no law that requires officers to seize all items subject to it. The only requirement is that agents execute the warrant within 14 days. See generally Rule 41 of the Federal Rules of Criminal Procedure and this warrant form.
I don’t think this is nitpicking. The alleged requirement that officers take every piece of evidence subject to the warrant is central to Giuliani’s contentions. From Giuliani’s remarks, it isn’t even clear (to me, anyway) that the warrants authorized seizure of the Hunter Biden hard drives in his possession. For the purposes of my comments here, I assume the warrants authorized but did not require their seizure.
Giuliani further stated that the warrants were “completely illegal” because there has to be “some evidence” that the person subject to them is going to “destroy” or “run away” with the evidence. To obtain a search warrant, however, federal officers need only establish probable cause that a crime was committed and that items connected to the crime are likely to be found in the place specified by the warrant. Again as I understand the law, probable cause is the key and a federal magistrate must sign off on the finding that probable cause exists.
Yesterday’s Times story vaguely reported that the criminal investigation involves Giuliani’s dealings in Ukraine. Today’s Times story is ambiguous about Giuliani’s status: “The warrants do not accuse Mr. Giuliani of wrongdoing, but they underscore his legal peril: They indicate a judge has found that investigators have probable cause to believe that a crime was committed and that the search would turn up evidence of that crime.”
So is Giuliani a target, a subject, or a witness in the investigation? The Times is mum on this point. Clarity is lacking. FARA is a farce, but I doubt that Giuliani’s allegations about the illegality of the warrants and their execution are accurate. From Giuliani’s remarks in the video at 7:00, I infer that he may have seen the affidavit underlying the warrants and/or that he understands he is at least a subject of the investigation.
Giuliani makes other points in the interview that I do not address above. The whole thing is of interest and worth your time if you haven’t seen it yet.