Federal prosecutors are seeking to submit the vast trove of information the FBI seized from former President Donald Trump’s lawyer Rudy Giuliani to a court-appointed special master for review before any records are turned over to investigators, according to a person familiar with the matter and a letter made public Tuesday.
The move would be a departure from the Justice Department’s usual practice of resisting outside review of materials seized in sensitive investigations, like searches of attorney’s offices or lawyers’ electronic devices.
However, citing “unusually sensitive privilege issues” at stake in the investigation and the “overt and public nature” of the searches, prosecutors said they were embracing such a review in this instance.
“The Government considers it appropriate for the court to appoint a special master to make the privilege determinations as to materials seized pursuant to the warrants,” lawyers from the office of U.S. Attorney Audrey Strauss wrote in a letter sent last week to U.S. District Court Judge Paul Oetken. The letter was unsealed by the court Tuesday.
Prosecutors appear to have written to Oetken because he is overseeing a criminal case in which two associates of Giuliani face campaign finance and fraud charges. Giuliani has not been charged.
The letter was sent Thursday, one day after Giuliani’s Manhattan apartment and office were searched. The judge unsealed it Tuesday afternoon. In an order Tuesday, Oetken also gave Giuliani until May 10 to respond to the government’s proposal.
Under a special-master process, a respected lawyer — often a retired judge or magistrate — often supervises the sifting of emails, text messages, photos, audio and video files to determine what is covered by the warrant. The special master could also assess whether such records are covered by attorney-client privilege or other protections lawyers have for their records.
The prosecutors proposal in Giuliani’s case appears to embrace a special master supervising the privilege review, but not the sorting of what records are responsive. Giuliani, Trump or other Giuliani clients could ask Oetken to broaden the special counsel’s responsibilities.
An attorney for Giuliani, Robert Costello, declined to comment Tuesday.
When the FBI raided Trump lawyer Michael Cohen in 2018, prosecutors said appointment of a special master was “neither required nor appropriate.” Lawyers from the U.S. Attorney’s Office in Manhattan instead said they planned to rely on a “rigorous filter protocol” to make sure no privileged or non-responsive records reached investigators. That approach is sometimes also referred to as a “taint team,” which then passes on records that those pursuing the investigation are deemed to have the right to see.
After lawyers for Cohen and Trump filed legal action trying to block that process, U.S. District Court Judge Kimba Wood agreed to have the sorting and review overseen by an independent third party: retired Judge Barbara Jones.
Wood agreed to appoint a special master after saying it could reinforce the “perception of fairness” in the high-profile case, although prosecutors in the Giuliani case emphasized in their letter to Oetken that she also said the appointment wasn’t needed to ensure “fairness itself.”
Wood’s decision seemed influenced by the fact that Trump, the Trump Organization and Cohen agreed to bear the costs of the review.
It was not immediately clear who would pay for a special master in the Giuliani case or whether Trump would participate through his attorneys. A spokesperson for Trump, Jason Miller, did not respond to a request for comment.
Ultimately, more than 4 million items were reviewed stemming from the Cohen searches in a process that took several months.
The latest developments follow a ruling last year by a Richmond, Va.-based federal appeals court in an unrelated case. A panel of that court rejected the Justice Department’s use of a taint team of government agents to sort through and categorize materials seized from a Baltimore law office.
Five days before the change in administration in January, the Justice Department asked the full bench of the 4th Circuit to rehear the case. The court declined later that month. That left the decision in place and set a precedent, but one that now governs only in Maryland, Virginia, West Virginia and the Carolinas.
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