Published May 3, 2021

Elie Honig:

Hey everybody. As many of you know, each Friday on the Third Degree Podcast, I speak with a rotating cast of some of the nation’s top law students about breaking legal news, compelling cases and what it means to lead a life in the law. These episodes are part of the CAFE insider membership. Insiders get exclusive content, including a weekly podcast hosted by Preet Bharara and Anne Milgram, audio notes from contributors, including me, and bonus content from Stay Tuned and Doing Justice. You can now become a member for half the annual membership price. Just head to cafe.com/insider and enter the special code . That’s cafe.com/insider and the discount code is degree. Now, onto the show. From CAFE and the Vox Media Podcast Network, this is Third Degree. I’m Elie Honig.

Elie Honig:

I’m going to be honest with you. I’m always honest with you, but today I’m going to go a little bit out of my way to, I guess, embarrass myself a little bit. I first got hired at the Southern District in early 2004, and I guess understandably, some of my friends and relatives, I’m not going to name names, mom, we’re a little confused. What are you a DA? Is this an attorney general? Is this state? Is it federal? Is it like Law and Order? It’s understandable. There’s a lot of different prosecutors at a lot of different levels to keep track of. I think my mom in fairness would probably ace a test now, but the way I would explain it back then what the SDNY was was this, I would say, “It’s the office that Rudy Giuliani used to run.”

I mean it, Rudy was at the time, and again, this is 2004, the first name most people associated, I associated, I wanted people to associate with the SDNY. I knew, we all knew Rudy was brash. He was a self promoter. He rubbed a lot of people wrong, but heck, that’s kind of what New York City is all about. But Rudy was known as a legendary mob buster. He was that. This is, again, early 2004. It’s not long after 9/11. He was still seen as America’s mayor, and at the time, hard to believe now, but he was still seen as maybe the next president. Well, Rudy has changed since then quite a bit. Now, part of me is sad, I suppose, the way I would be sad to see any respected icon decline, collapse, and humiliate himself. But a bigger part of me is just flat out disgusted.

The man has made a complete and utter fool of himself and worse. He’s a congenital liar. See, for example, the 2020 election. He makes wild boasts and fantastical claims that can’t possibly be true, that he must know aren’t true, right? He has to know. He’s a kiss up, I’ll say it nicely, to Donald Trump. He’s a bully to everyone else. He’s made himself a laughing stock between the Four Seasons landscaping, the hair dye, Borat, and all the rest. Well, now things are bottoming out it seems for Rudy. News broke this week that the SDNY had executed a search warrant on Rudy’s home and office. That is of course a very bad sign. The only question really is, is this rock bottom for Rudy? Or will it get even worse?

First of all, the investigation. There’s a lot we don’t know, but here’s what we do know for sure. The SDNY prosecutors and a federal judge both found there’s probable cause to believe that a crime was committed and that evidence of that crime would be found in Rudy’s home or his office. Now, probable cause. That is not proved beyond a reasonable doubt. That’s way lower than proof beyond a reasonable doubt, which of course you’d need to convict someone in front of a jury. But it requires a specific showing by a prosecutor. If you’re asking for a search warrant, you can’t just write to a judge, “Hey judge, we have probable cause. Take our word for it.” No, you have to lay it out in detail in writing.

Now, I imagine you’re probably wondering about this. How often do prosecutors execute a search warrant on a target and then end up charging or not charging that person? I can’t put a number on it, but I can say this safely. In my experience, the majority of time you do end up charging the. Majority of time you execute a search warrant, you do end up charging that person. Can I say if it’s 52% or 89%? I really can’t. But I’m safe saying the majority. Part of that is just logic. We know prosecutors are already a good chunk of the way there with probable cause. They’re not all the way. Technically, all you need to charge someone is probable cause, but any good prosecutor usually wants and needs more before they actually will pull the trigger on a charge.

By the way, there’s no way this search warrant is happening with just your standard sort of close to the line probable cause because everybody here surely understands this is a big deal, and no matter what, you as a prosecutor will be accused of playing politics and misconduct. Rudy is already doing that. So you better have your ducks in a row. What could they find? Well, we know they took phones and electronic devices. Rudy is sort of infamously a prodigious user of many different phones. He’s not particularly good at it. He is probably the world’s most famous butt dialer. Cellphones have changed the world of law enforcement. When I started back in ’04, they were really quite uncommon. I once had a case where for some reason I had to call up a very old case file from the ’90s, and when it came up, there was wrapped in an evidence bag one of those huge cellphones like you see in the ’80s movies like the size of a shoe box, but that was about all that cellphones were back even in 2004.

But now, cellphones are the single most valuable source of evidence. By the way, people think they’re deleting things from their phones, deleting emails, deleting texts, good intent, bad intent, neither. Let me just tell you one thing I’ve learned, you’re probably not really deleting it. It’s probably still on there in a way that the FBI can raise. Judges commonly give juries this instruction about intent. Judges will tell juries this, “Science has not yet devised a way to look into a person’s mind. But you know what, cellphones and cell phone forensics are pretty darn close.”

Second, what could the charges be here against Rudy Giuliani? Well, again, it needs to be said, we don’t know. There’s a lot we don’t know. He certainly is entitled to the presumption of innocence. Now, the reporting is, the basis for the search warrant is a violation of FARA, the Foreign Agents Registration Act. This is a broad, confusing, obscure statute. Basically, it says if you are lobbying the US government on behalf of any foreign government or foreign national, you have to register. Otherwise, you’re technically a spy. But the statute is a bit of a mess. Who has to register? What counts as lobbying?

I mean, I’ll give you one example, Bono. Yes, Bono from U2, right? He’s involved in all sorts of advocacy. He comes in, he lobbies for Aid for Africa. He lobbies for the government to take certain actions on behalf of Ireland. Does Bano have to register as a foreign agent? If he doesn’t, is that a crime? Now, FARA has a very limited and mixed history. According to the National Review, there were only seven federal FARA cases brought between 1966 and 2015, and only three of those seven resulted in convictions. Now, that’s changed a bit with the Mueller investigation. Mueller had a mixed record with using FARA. He had some successes, some failures.

He got pleas from Paul Manafort and Rick Gates to FARA. He got Michael Flynn to admit as part of his relevant conduct that he had violated FARA, and Mueller’s spinoffs also resulted in FARA charges against sort of lesser known people, Elliott Broidy, and Sam Patton. But another spinoff resulted in a charge against Gregory Craig, a former Obama administration attorney who went to trial and was acquitted, was found not guilty.

Here’s my prosecutors bottom line. This is a shaky charge, especially if it’s your lead charge or your only charge. It’s easy to just sort of write this off so to speak as well, it’s a failure to fire paperwork. It’s more than that, but I get why a jury would take it that way. Now, here’s the rationale for the law. If you’re going to have somebody working on behalf of a foreign government and lobbying our government, we need to know who that person represents. We need to know that person is here lobbying for this policy or that change on behalf of a certain foreign country. It’s about transparency. It’s about really protecting our own government.

That said, I don’t feel good about FARA if it’s my lead charge or my only charge. I also suspect the SDNY won’t pull the trigger here without more. Could there be more? Of course, that’s what they’re looking for right now. Maybe they already have more. When it comes to Rudy, we just don’t know. He is in the absolutely nothing would surprise me zone. One other thing, anytime you execute a search warrant, you can be looking for evidence of a certain crime. Your application to the judge can say, “Judge, our probable cause is based on a certain crime.” Let’s say FARA. But you often do find evidence of completely unrelated crimes. You can use that evidence to charge whatever that evidence supports. That happens all the time. We’ll see if that happens here.

Finally, what does this say about the new Department of Justice? You’ll not find this surprising and you’ll not be particularly surprised to hear me rail against this. The prior DOJ, especially under Bill Barr squashed this search warrant that was widely reported, which comes as no surprise. Bill Barr politicized DOJ like nobody before him or hopefully after. I’m writing a book about that, little plug. Now, if you want exhibits A and B, by the way, Michael Flynn and Roger Stone, Bill Barr intervened on their behalf. Seems to make perfect sense to me that he or other leaders at DOJ would have intervened to protect Rudy Giuliani.

One of the most important lessons to take about the fact that DOJ executed this warrant and we have brand new leadership in there including CAFE alum, Lisa Monaco, is that DOJ is not going to shy away from Rudy Giuliani or even from things that may touch on Donald Trump. Because look, there is a world where the new DOJ just says, “We’re just not interested. Trump’s in the past. He’s the former guy. We don’t want to go down these rabbit holes that either directly touch on Trump or may indirectly touch on Donald Trump like the Rudy search warrant.” But it’s clear now that they’re not going to shy away. That’s absolutely the right thing. I’m glad to see they’re doing that. This new administration at DOJ has had a very productive, and I think they’re making a statement in these first couple of weeks on the job.

I mean, beyond the Rudy search warrant. They’ve opened pattern and practice, police investigations in Minneapolis and Louisville. They filed hate crime charges in the killing of Ahmaud Arbery. They filed weapons of mass destruction charges in the case involving the plot to kidnap the Michigan governor and reportedly they’re going to be filing federal charges against Derek Chauvin and the other police officers involved in the George Floyd killing. So the signs from the new DOJ are good and encouraging. It tells me that this is going to be a DOJ that is fearless, that has a real backbone, and that’s willing to go after crime or wrongdoing wherever it may be necessary.

Thanks again everyone for listening to this episode of Third Degree. I’m Elie Honig. As always, please send us your thoughts, questions, and comments to letters at cafe.com. Third Degree is presented by CAFE Studios. Your host is Elie Honig. The executive producer is Tamara Sepper. The senior producer is Adam Waller. The technical director is David Tatasciore. The audio and music producer is Nat Weiner. The CAFE team is Matthew Billy, David Kurlander, Sam Ozer-Staton, Noa Azulai, Jake Kaplan, Geoff Isenman, Chris Boylan, Sean Walsh, and Margot Maley.