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.”
It was only when the team investigating Giuliani issued a nonsecret warrant for Toensing’s phone itself on April 28 that she even knew her communications were at issue. The very next day, prosecutors correctly requested (and secured) the appointment of a “special master” to review the phone’s contents to determine if any enjoyed attorney-client privilege. Yet, and this is crucial, if a special master or other safeguards are necessary now, with regard to her phone, they should have been equally necessary for the last 17 months when prosecutors apparently had unfettered access to much of the same information via her cloud.
Forgive the twist on the cliché, but this is a textbook case of closing the barn door after the wolves already had an opportunity to ravage the livestock.
To understand the importance of the principles at stake here, two disclaimers are required. First, let it be clear that it is the Sixth Amendment and the rights of Toensing’s assorted clients, not the lawyer herself, who merit support here. Toensing is a notoriously prickly personality, even when dealing with those on her side of the issues, and she will receive no sympathy from these provinces. Second, there are those of us who strenuously oppose the positions she, her husband, Giuliani, and Trump have taken on matters involving Ukraine and on the limits of presidential authority, yet who can be appalled at the behavior of prosecutors with respect to her electronic records.
The attorney-client privilege is not absolute, but it rightly is a sturdy bulwark of the Constitution’s protections for those accused of wrongdoing. The Sixth Amendment is an essential safeguard of liberty and of equal justice under the law. The Justice Department’s secret, 17-month capture of a lawyer’s records is fraught with risk to those rights. Indeed, Toensing identified to the court (with names publicly redacted) completely unrelated clients whose private consultations with her might have been revealed to relevant prosecutors in those cases.
Toensing’s team has asked for six facets of redress for this prosecutorial abuse, including a full accounting of what materials already had been reviewed via the secret warrants. Judge Oetken ought to grant her requests.
The interests of true justice, though, demand more than Toensing has requested. Relevant authorities, the judge or the ethics office at the Justice Department, ought to review the conduct of the prosecutors who used the secret warrants and should aggressively penalize them if any ethical or legal violations are found.
Prosecutors enjoy vast powers, abuses of which are a menace to the constitutional order. Abusive prosecutors should be evicted — and, if the abuses are great enough, they themselves should be prosecuted.
