Federal prosecutors, in a departure from usual Justice Department practice, are seeking a court-appointed special master to review the materials the FBI has seized from Rudy Giuliani and his associate, attorney Victoria Toensing, before turning the records over to investigators.
Lawyers from the office of U.S. Attorney Audrey Strauss wrote in a letter to U.S. District Court Judge Paul Oetken the day after the FBI conducted searches at Giuliani's apartment that the "government considers it appropriate" to review the materials and make "privilege determinations," Politico reported.
In the case of Giuliani, a former mayor of New York City and U.S. Attorney who in recent years served as former President Donald Trump's attorney, there are "unusually sensitive privilege issues" involved that include the "overt and public nature" of the searches, the letter says.
The letter was unsealed on Tuesday, as requested by prosecutors, and says that Giuliani's counsel intended to file a response after reviewing the letter. Toensing was in the process of securing permanent counsel and her interim representation was copied on the document, prosecutors said.
Normally, the Justice Department resists outside reviews of materials seized in investigations considered to be sensitive, such as searches involving attorneys' electronic devices or offices.
The letter appears to have gone to Oetken because he is overseeing the criminal case against two Giuliani associates who face campaign finance charges. Giuliani has not been charged with a crime.
Oetken gave Giuliani until May 10 to file a response to the government's call for a special master, Politico reported.
Giuliani's attorney, Robert Costello, said shortly after the searches that he plans to issue a court challenge in hopes of protecting privilege issues concerning Giuliani's clients, including Trump, according to CNN.
Giuliani has reportedly been the center of an investigation concerning his actions in Ukraine, including whether he illegally lobbied for Ukraine officials following an investigation into Trump's political rival, now-President Joe Biden. He has denied any wrongdoing.
Costello said the warrant used in the search of Giuliani's apartment concerned an investigation into violations of foreign lobbying laws and that it was seeking communications between Giuliani and others.
A special master process would include bringing in an attorney, most often a retired judge or magistrate, to supervise the process of sifting through seized materials such as emails, text messages, video, and audio files, and other items to determine which items are covered by the warrant, Politico reported.
The master would also determine which records are protected by attorney-client privilege or other protections that attorneys have for private records.
The prosecutors in the Giuliani case, however, appear to want a special master to supervise the privilege review but not sort out which records are responsive. Giuliani or his clients could ask Oetken to widen the master's responsibilities, though.
Prosecutors previously said when seizing items from another Trump lawyer, Michael Cohen, that appointing a special master was not "required or appropriate."
At that time, the lawyers, from the U.S. Attorney's office in Manhattan, said they were going to rely on a "rigorous filter " protocol, but attorneys for Cohen and Trump filed legal action trying to block that process.
At that point, 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 ruled that a special master in the Cohen case would reinforce the "perception of fairness," but prosecutors in the current investigations said in their letter to Oetken that the appointment would not be needed for "fairness itself."
Trump, the Trump Organization, and Cohen agreed to bear the costs of the review in the Cohen case but it was not clear who would pay for the master in the Giuliani case.
More than 4 million items were reviewed from the Cohen searches, and the process took several months.
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