(June 7, 2021) Journalists angry about the Justice Department snooping into reporters’ records should be equally outraged at the department’s infringement of attorney-client privilege in its investigation of former New York City Mayor Rudy Giuliani.

Just as First Amendment press protections were at risk in the former practice, which was just ended (although not in all ways) late last week, the Sixth Amendment’s “right to counsel” protections are threatened in the Giuliani investigation. What’s particularly troubling isn’t the seizure of electronic communications of the former mayor himself (which may also be problematic but which involve complications this column won’t delve into) but the 2019 “covert” search warrants seizing such communications from a separate attorney, famed prosecutor-turned-defense-lawyer Victoria Toensing.

Toensing is neither Giuliani’s attorney nor (according to her attorneys) a fellow “target” in the Giuliani investigation that, for unknown reasons, secretly seized data from her Google and Apple iCloud accounts in November and December of 2019. But she does represent others involved in the convoluted web of Ukrainian business dealings that roiled the Obama, Trump, and Biden administrations, regarding which Giuliani’s own actions are now being investigated. She also is a friend of Giuliani, and she and her husband Joseph diGenova were frequent cable-news guests who touted the Giuliani-Trump line, sometimes extravagantly, on Ukraine and other controversies.

Those clients, and indeed all of Toensing’s clients, some of whom were Justice Department targets in completely unrelated cases, should enjoy attorney-client privileges that keep prosecutors from snooping through their communications with her. Yet, according to letters filed with Judge J. Paul Oetken of the Southern District of New York, prosecutors used a “covert warrant” to seize access to Toensing’s electronic “cloud” without informing her, for 17 months, that they had access to it. She was never afforded the lawyer’s customary chance to review the material to see if she should claim attorney-client privileges on any of it, and indeed still does not know “what [of the] seized information [the inquiry] has already reviewed and whether and what information it has provided to the case team.”…

[The full column is at this link.]


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