• Transcript
  • Show Notes

In this episode of CAFE Insider, Preet and Joyce break down the FBI’s raid of former New York City Mayor Rudy Giuliani’s Manhattan apartment and office, and the grand jury indictment of three men on hate crime and attempted kidnapping charges in connection with the killing of Ahmaud Arbery, a 25-year-old Black man.

Stay Tuned with Preet has been nominated for another Webby People’s Voice Award! This year, we’re up for Best Individual News & Politics podcast episode for Preet’s February 2020 conversation with Dan Goldman, who had just served as Lead Majority Counsel during the first impeachment of President Trump. Vote now!

We hope you’re finding CAFE Insider informative. Email us at [email protected] with your suggestions and questions for Preet and Joyce. 

This podcast is brought to you by CAFE Studios and Vox Media Podcast Network. 

Tamara Sepper – Executive Producer; Adam Waller – Senior Editorial Producer; Matthew Billy – Audio Producer; Jake Kaplan – Editorial Producer

REFERENCES & SUPPLEMENTAL MATERIALS

VOTE for Stay Tuned with Preet at the Webby Awards

“Chauvin, DOJ & 2nd Amendment,” CAFE Insider, 4/27/21

RUDY GIULIANI 

4th Amendment to the U.S. Constitution

18 U.S. Code §3282 – Offenses not capital

22 U.S. Code §611 – Definitions

22 U.S. Code §612 – Registration statement

Federal Rules of Criminal Procedure Rule 41 – Search and Seizure

DOJ Justice Manual 9-13.420 – Searches of Premises of Subject Attorneys

United States v. Lev Parnas, Igor Fruman, David Correia, and Andrey Kukushkin, U.S. District Court Southern District of NY, superseding indictment, 9/17/20

“Foreign Agents Registration Act Frequently Asked Questions,” DOJ

“Attorney-Client Privilege,” Cornell Legal Information Institute

“FBI was aware prominent Americans, including Giuliani, were targeted by Russian influence operation,” WaPo, 5/1/21

“Giuliani search warrant resolved Justice Department dispute,” AP, 4/30/21

“Rudy Giuliani’s Son Tries To Out-Rudy Him In Wild CNN Appearance,” HuffPost, 4/30/21

“Firing of U.S. Ambassador Is at Center of Giuliani Investigation,” NYT, 4/29/21

“F.B.I. Searches Giuliani’s Home and Office, Seizing Phones and Computers,” NYT, 4/28/21

VIDEO: “Giuliani admits he has ‘insurance’ should Trump turn on him,” 11/24/19

AHMAUD ARBERY KILLING

18 U.S. Code §245 – Federally protected activities

18 U.S. Code §249 – Hate crime acts

George Floyd Justice in Policing Act of 2021

United States v. Travis McMichael, Gregory McMichael, and William “Roddie” Bryan, U.S. District Court Southern District of Georgia, indictment, 4/28/21

Georgia v. Travis McMichael, Gregory McMichael, and William “Roddie” Bryan, Glynn County Superior Court, indictment, 6/24/20

“Three Georgia Men Charged with Federal Hate Crimes and Attempted Kidnapping in Connection with the Death of Ahmaud Arbery,” DOJ, 4/28/21

“What We Know About the Shooting Death of Ahmaud Arbery,” NYT, 4/29/21

“Georgia’s New Hate Crimes Legislation,” National Law Review, 6/30/20

MISSING VHS TAPE

“Overdue VHS Tape From 1999 Leads to Warrant for Embezzlement,” NYT, 4/25/21

Raiding Rudy Giuliani

5/4/2021

The investigation into former NYC Mayor Rudy Giuliani is reportedly ramping up — but will he be charged with a crime?

Last week, the FBI raided Giuliani’s Manhattan apartment and office, and seized his cell phone and computers. Preet and Joyce break down the procedure investigators must follow in order to obtain a search warrant, and explain the likely next steps in the investigation.

Meanwhile, a federal grand jury in Georgia indicted three men on hate crime and attempted kidnapping charges in connection with the killing of Ahmaud Arbery, a 25-year-old Black man. Preet and Joyce discuss the significance of charging hate crimes.

Preet Bharara:

From CAFE and the Vox Media Podcast Network, welcome to CAFE Insider. I’m Preet Bharara.

Joyce Vance:

And I’m Joyce Vance.

Preet Bharara:

Joyce, you’re back.

Joyce Vance:

Well, you haven’t managed to run me off yet, Preet. We’ve got a [inaudible 00:00:14] going here.

Preet Bharara:

Three weeks.

Joyce Vance:

Three weeks. I mean, it’s a lifetime in COVID years, right?

Preet Bharara:

It is. It is. By the way, some personal news. All three of my kids who are over the age of 16 got their second shot over the weekend. So the Bharara family is almost fully vaxxed.

Joyce Vance:

That is really super exciting. We are all vaxxed too. We’ve got four kids. Our youngest is 18, which means that they are all that vaccinated.

Preet Bharara:

How’s the general openness to vaccinations where you are?

Joyce Vance:

Alabama is running about 10 points behind the national average for vaccination. There are obviously a lot of vaccine resistors in the state. But where we live in, Birmingham, and especially in Jefferson County, people have generally stood in line and gone to a lot of trouble to get vaccinated. And of course, now it’s more available. So it remains to be seen. But there’s an interesting article in the paper this morning from a doctor here who believes that we will have herd immunity this fall between vaccination and infection numbers.

Preet Bharara:

Well, that’s interesting because the New York Times said yesterday, reaching herd immunity might be difficult because of all the vaccination resistors.

Joyce Vance:

Yeah. I was really interested by the discrepancy between the two stories. I’m wondering if the difference is that so many people in Alabama actually had COVID, that when you add that to the people who’ve voluntarily vaccinated, that you reach it.

Preet Bharara:

We have a lot to talk about this week. We’ve got to talk about Giuliani. There have been some developments with respect to an investigation of him since last you and I spoke. But a couple of quick announcements first for the audience. Number one, I want to remind everyone that Stay Tuned was nominated for a Webby for best individual episode in the news and politics category based on the February 2020 interview with our friend and colleague, Dan Goldman, former colleague.

Preet Bharara:

So please vote when you’re done listening to the show. There’s a link in the show notes. You can also go to vote.webbyawards.com and then search Stay Tuned. Obviously, last week, Joyce, we spent a lot of time talking about the Derek Chauvin trial. Sentencing is coming up in a few weeks. We’ll talk more about that as we get closer to sentencing and the next trial of the other three officers. But I also want to let people know that on Stay Tuned this week, I have, as my two special guests, pretty special, the two lead prosecutors in the Chauvin trial, Jerry Blackwell and Steve Schleicher. That’ll be fun.

Joyce Vance:

I’m really looking forward to listening to that. You know and I know that prosecutors, I mean, there’s just an unlimited number of opportunities for you to screw up and embarrass yourself in trial, right?

Preet Bharara:

Oh yeah.

Joyce Vance:

And you can still get a conviction even when you do that. They tried a remarkably clean case. I think I saw about 98% of the trial. They did a great job.

Preet Bharara:

They did, and we’ll ask them how they did it this Thursday, folks. Rudy, I have a lot to say about Rudy Giuliani. Just at the outset, putting aside the search, and the legal issues, and the implications to the attorney-client privilege and all of that. It is just a stunning and remarkable thing. The sad thing, to me, that we’re in a position where the former leader of that US attorney’s office, which I hold in great esteem and revere has now had his residences searched and his devices seized based on a view there’s probable cause that he’s committed a crime, and the fruits of those crimes or evidence of those crimes exists on those premises.

Preet Bharara:

I just wonder how you think about that. If there was a prominent, famous former US attorney from your district who was currently under investigation by your district, how would that make you feel?

Joyce Vance:

It is a sad moment, and I think that that gets lost in, frankly, some of the political back and forth about Rudy’s fate. But this is the long, sad fall of the house of Giuliani. I always think about the fact… My mother-in-law was at a dog show in New York City on the morning of 9/11. She was fortunately with my sister-in-law, and I was able to rent them a car and they drove home. But she, as a result of that, loved Rudy Giuliani so much.

Joyce Vance:

I understand that he was always a complicated figure when it came to law enforcement in the city. But nonetheless, he had a powerful persona. He was, to many people, an American hero. I can’t imagine how it has to feel for you, as part of his legacy, to watch this happen. It really is sad.

Preet Bharara:

It is. The other part that’s sad to me, because he’s adopted the strategy of lots and lots of people who he investigated and he prosecuted when he was US attorney, and that is to attack the prosecutors and say it’s politics. And he has on a daily basis been trashing SDNY, which is by the way, the place that made him who he was, that trained him, that gave him prominence, that gave him a launching pad to become mayor of the city of New York.

Preet Bharara:

Without SDNY, my view is Rudy Giuliani would be nothing. The fact that he is now blaming them is sad and unfortunate. SDNY has not changed. Rudy Giuliani has changed, and that’s an important distinction to make.

Joyce Vance:

It’s also worth noting, and I think you said this, that he’s following the textbook strategy for somebody who’s under investigation, who can’t defend themselves on the facts, can’t defend themselves on the law. So they go after the prosecutors. I mean, how many times have we seen that happen?

Preet Bharara:

Yeah. One thing we should be careful about, and maybe we’ll get to this later, a lot of what we know about the investigation comes from reporting, and reporting from respected outlets like the New York Times. I know some of these reporters personally. But we haven’t seen court documents. We haven’t seen the search warrant. We’re going by what people are saying and leaking, and the leaking is unfortunate. So we should reserve judgment a little bit and see what happens in court.

Preet Bharara:

There’s a significant retraction in the number of stories about whether or not Rudy Giuliani had been briefed by the government, by the federal government, on the issue of a Russian misinformation campaign. And that’s embarrassing. I don’t know how you think about this, Joyce, when you comment on things. Sometimes you get very detailed reports in the press about what’s happening behind the scenes. It mostly turns out to be correct, particularly if it’s in multiple outlets. But sometimes not.

Joyce Vance:

I think that’s right. The prosecutor part of me always cringes a little bit when I see reporting on what appears to be a grand jury investigation, because, of course, those are meant to be kept secret for a lot of good reasons. Any time they leak out into the public sphere, there’s the possibility that some of the reporting is wrong. And that happened in this case. I don’t know that that has enormous significance. It’s just a good reminder that we need to take this with a grain of salt. There may never be an indictment of Rudy Giuliani.

Preet Bharara:

Let’s talk about that for a second, and then we’ll get into the substance, because this is the question that everybody wants to know. What does the execution of the search warrant indicate about the likelihood of a charge? Again, I don’t know, but we’ve seen this play out before, Paul Manafort. He was searched, later gets charged. Michael Cohen, also a lawyer, he gets searched, later gets charged.

Preet Bharara:

There are lots of folks that you and I know and overseen investigations of this nature, where searches are executed and nobody ever gets charged because you only have probable cause. And maybe you never get to beyond a reasonable doubt or enough evidence to bring a charge and go to trial. I do think, and I’m curious what you think, that given the status of Giuliani, given the public reporting, given the fact that he’s a lawyer and a lawyer to the former president of the United States, and the amount of public scrutiny, that the fact that they, SDNY, continue to persist in the request for a search warrant means that they think there’s a very decent likelihood that there will be a charge. Do you agree with that?

Joyce Vance:

I do. You know and I know that prosecutors only go over in a case like this after they’ve exhausted all other avenues of investigation. In fact, the principles of federal prosecution, the newly renamed justice manual, you guys followed that in the Southern District of New York sometimes, didn’t you?

Preet Bharara:

Yeah, usually.

Joyce Vance:

Yeah. The justice manual says that you can only search an attorney’s office after you’ve tried less invasive means of getting the evidence. This means that there’s something, or some things, fairly specific, that they’re after, that they can’t get any other way. Maybe they’re trying to get into some accounts that they know Rudy Giuliani has and they need passwords or something like that. But to go over sends a signal, particularly with Rudy Giuliani, that they are onto something serious.

Joyce Vance:

We both know the people that made the decision on whether or not this search warrant was a go, they are serious career prosecutors who don’t do things in the absence of good reasons. So I think that too sends a signal that this is a serious matter.

Preet Bharara:

I mean, the other thing that people sometimes don’t get or they get it and they’re saying it otherwise, including Rudy Giuliani and his son, Andrew Giuliani, who’s been in the air and was on a CNN program right before I was on it, and I responded, is this idea that you can dislike someone and you hate them, and then you can manufacture something and it flies. That doesn’t work that way when you have layer after layer after layer of review.

Preet Bharara:

Also, it doesn’t get you very far if at some point there’s a motion to suppress. People, at some point, I expect, will see the search warrant, and they’ll see the affidavit in support of it. If it’s a clown show, people will know that. So it doesn’t make a lot of sense for serious, smart career prosecutors to make something up. By the way, as I’ve been saying for the last week, you can’t make a case out of hate, and nobody hates Giuliani in that office. They’re doing their job.

Preet Bharara:

I bet you that many of them, although they don’t think about it in this way, going back to our first comments on the case, find it enormously sad that they have to get sworn out a search warrant against the person who used to leave the… Look, his portrait hangs in the office against the wall on the eighth floor leading to the office of the US attorney, along with a bunch of other people going back a hundred years. So it’s not a pleasant thing. I don’t think anybody is seeking out the opportunity to charge Rudy Giuliani, given who he is and given who he was in that office.

Joyce Vance:

Even if they were, and I agree with you, that’s just not how prosecutors operate. But even if they were, it’s not like DOJ can decide to execute a search warrant on its own. Prosecutors had to go to a federal judge, get a federal judge to review the affidavit and agree that it made out of case for probable cause. I don’t know what your judges are like, Preet, but our judges took those affidavits very seriously and they pushed back and asked questions.

Joyce Vance:

At more than one point in my career as a prosecutor, I found myself at a… In our office, it was usually the magistrate judges who signed off on search warrants. And when something came up that was an emergency, you might be at their house very late at night. They were never rubber stamps. They sat down, they read the affidavit, they wanted to talk to the agents. They were very careful to make sure that probable cause existed precisely for the reason that that you suggest, which is that ultimately it’s going to be tested in a motion to suppress.

Preet Bharara:

Look, and in this case, I can imagine that the magistrate judge sees who the target is, and it’s Rudy Giuliani, and you know that’s going to get scrutiny. You hope and trust that every document that a judge is supposed to approve or decline gets great attention and thoroughness. But you just know that human nature is such, that when you have a target like this and you know the whole world is going to be watching, you need to be extra careful. And if there’s one search warrant you’re not going to rubber stamp, it’s going to be this one.

Preet Bharara:

Now the other weird thing, we don’t know who the judge is. At least maybe I missed it, but I don’t know how-

Joyce Vance:

I haven’t seen it.

Preet Bharara:

… people would know who the judge is. But Rudy’s son, Andrew Giuliani, who is toying with the idea of running for governor of the state of New York. Maybe that’s why he’s on the air so much. Not just to defend his father, but to get some exposure. He’s thinking about running against Andrew Cuomo. He said on TV, very blithely, that the judge who signed off on the search warrant was a Barack Obama appointed judge. Now, I don’t know, A, how he knows that.

Preet Bharara:

It may be that the target of the search warrant has shown a document that indicates the judge. But as you pointed out, there are two tiers of judge in the district court. There’s a magistrate judge, and they get appointed by a committee of other judges, of district court judges. Then you have the presidentially appointed district court judges. And in this case, I would imagine this was done by the magistrate judge, which is how traditionally all search warrants are approved. And the magistrate judge is not appointed by the president. So I don’t know what that, to coin a word, malarkey, is about either. Do you?

Joyce Vance:

I don’t have any idea? I mean, I guess, you could have some sort of a really strange case where you asked a district judge to sign off on a search warrant. But he also could just be blowing smoke.

Preet Bharara:

I was talking earlier about reporting. The background of this Rudy Giuliani business, according to reports, which we should be careful about, is that the SDNY has been investigating Giuliani for some time and wanted to get approval to do the search during the prior administration. The reporting suggests that Jeff Rosen, who was then the deputy attorney general, and maybe even Bill Barr himself stymied that request and wouldn’t approve it.

Preet Bharara:

The funny thing to me about that ironic thing, not that I think about this as funny, was that had that been approved months earlier, and had the search warrant been executed, and maybe perhaps had there been a charge before January 20th of this year, Rudy Giuliani might have been able to obtain a pardon from Donald Trump. Don’t you think? And so, in some ways, using the word ironic, again, the delay in permission to execute the search warrant and get the search warrant may have cost Rudy a pardon. Is that farfetched?

Joyce Vance:

No, but don’t you think that that’s because Donald Trump wasn’t… Loyalty was not a feature and is not a feature of his character. This was all about perverting prosecutions, the normal course of a prosecution, where you would have executed a search warrant if you had probable cause, in order to protect the presidency for Trump, in order to not let anything happen that could impact the election in a negative way.

Joyce Vance:

To me, a big part of this story feeds into this larger story about Trump’s constant manipulation of the mechanics of government in order to get reelected or to try to get reelected.

Preet Bharara:

What do you think this other district is looking at? There’s been a lot of talk about how part of the investigation, or maybe all the investigation, centers on the statute called FARA, the Foreign Agents Registration Act, which says that if you’re acting on behalf of a foreign government, either engaging in propaganda on their behalf, or trying to get some benefit on their behalf, you have to register with the federal government.

Preet Bharara:

Some people think that’s not as serious a charge as some other charges. And this is a very aggressive step for just something that might just be a FARA violation. I guess, there’s a possibility that there’s other things that we don’t know about. What’s your best speculation guess as to what other things SDNY might be looking at in terms of charges?

Joyce Vance:

I was hoping I was going to get to ask you this question because it’s-

Preet Bharara:

You can ask me. But I don’t know.

Joyce Vance:

We texted about it a little bit. It’s tough to speculate. I think you’re right. The answer is, “I don’t know,” but it feels like more than a FARA violation. The government has struggled with FARA cases. The statute has not given prosecutors a lot of success. The Greg Craig case, which involved whether or not he should have filed as a foreign agent notoriously failed.

Joyce Vance:

So it feels like it has to be more than just this. But we’re flying blind without seeing at a minimum the affidavit. I think that there may be a campaign finance aspect, possibly a conspiracy to impede operation of government, if there’s some real connection into the election here. What do you think?

Preet Bharara:

I guess all those things are possible. There’s also the possibility of some kind of fraud that we’re not aware of yet. Lev Parnas and Igor Fruman, who had been charged by the Southern District of New York in a straw donor campaign conspiracy, and also general fraud. A company that they were associated with called Fraud Guarantee, which comedians have had a fun time with it on Late Night, they may be cooperating with the government and maybe there’s some other broader fraud that Giuliani is connected to.

Preet Bharara:

But some of the reporting suggests that a lot of what prosecutors are focusing on, and this is confusing to me, and you and I texted about this, is the campaign that Giuliani assisted and spearheaded to get rid of the ambassador, Marie Yovanovitch. People remember her from the first impeachment in the matter of Ukraine. I get the relevance of that, if he was acting at the behest of the Ukrainian government, who was sick of this woman who cared about corruption in Ukraine, as she very compellingly testified about some time ago.

Preet Bharara:

But on the other hand, I keep getting asked the question, can some liability or exposure extend to Donald Trump with respect to the campaign to fire Yovanovitch? I’m not sure how that is the case, given that Donald Trump was the president and he didn’t have to engage in any campaign or conspiracy to engage in some campaign to fire someone. He had the absolute unfettered authority to fire her whenever he wanted. You and I texted about this because I was confused.

Joyce Vance:

Yeah.

Preet Bharara:

This whole business about Yovanovitch and Giuliani and Trump, that there’s wild speculation about, I don’t know how to process that. Do you?

Joyce Vance:

I think we just don’t know enough. You could almost characterize Trump as a victim, if Giuliani is doing the bidding of some Ukrainian or other foreign national puppet master and feeding back information about Yovanovitch that taints her in Trump’s eyes. That’s what FARA is meant to do. It’s meant to make sure that people that are working for foreign entities disclose that, so that people in government or even the public is aware of the bias that can be behind information that they’re presenting.

Joyce Vance:

So if the ultimate question here is, does Donald Trump get indicted along with Rudy Giuliani, I think we’re a long ways away from being able to say anything like that.

Preet Bharara:

I keep getting asked the question also, is Rudy going to flip? I think that’s a very complicated question. First of all, I don’t know necessarily that Rudy has information with respect to this stuff that would give Donald Trump criminal exposure. But as people have pointed out, that Rudy has basically been at the center of multiple controversies connected to Donald Trump, including the Ukraine thing, including trying to overturn the election, including talking about trial by combat.

Preet Bharara:

The insurrection, he spoke that day on January 6th, Trump is probably pretty loose or has been pretty loose with Rudy Giuliani. At the end of the day, if Giuliani gets charged, do you have any thought about what he might do to save himself?

Joyce Vance:

Clearly, he doesn’t want to spend the rest of his life in prison. So there’s a powerful incentive to cooperate. Your district, like the district that I was US attorney in, requires that for a defendant to cooperate, they have to be fully truthful about all criminal activity that they’ve been involved in, not just the case that they’re charged in, which is why all of these other incidents come up on Giuliani’s horizon.

Joyce Vance:

So, sure, he would have to talk about January 6 and whether there was anyone with criminal exposure there. It was a long four years, the Trump administration. And it could take a while to de-brief Giuliani and determine whether or not he would even qualify as a cooperator. Then you have this issue of whether or not he could take the witness stand. I think that’s a complex and interesting question. But I always remember the comment that he made after the election, after Trump had lost, when he was-

Preet Bharara:

Oh yeah.

Joyce Vance:

… out there in public, and there was concern about Trump flipping on him. And Giuliani says, “I have insurance.” I’m sure prosecutors want to know what that insurance is.

Preet Bharara:

Wait a minute. What did you say?

Joyce Vance:

It’s late November-

Preet Bharara:

No, no, no. I’m not getting at this substance, Joyce.

Joyce Vance:

Okay. What are you getting at?

Preet Bharara:

Insurance.

Joyce Vance:

Insurance. Absolutely.

Preet Bharara:

I think, up in Yankee land, it’s insurance.

Joyce Vance:

No, insurance.

Preet Bharara:

Insurance?

Joyce Vance:

You all say it wrong if you say… What do you say?

Preet Bharara:

Well, I’m an immigrant, so maybe I’ve gotten this wrong my whole life.

Joyce Vance:

I mean, I’m a California girl.

Preet Bharara:

But I say insurance.

Joyce Vance:

No, insurance.

Preet Bharara:

You say insurance.

Joyce Vance:

Yeah.

Preet Bharara:

Can we make a request to listeners to weigh in on this debate?

Joyce Vance:

Absolutely.

Preet Bharara:

Insurance. Insurance.

Joyce Vance:

But I’m going to win. It is definitely insurance.

Preet Bharara:

Maybe it’s insurance. Maybe we’re both wrong. But you know what? I will say that I like the sound of insurance.

Joyce Vance:

Yeah.

Preet Bharara:

It sounds like insolence.

Joyce Vance:

In this case, it might be.

Preet Bharara:

Insolence. All right. You were making a very smart point and I got caught up in insurance.

Joyce Vance:

And here I thought you were questioning the facts.

Preet Bharara:

No, no, no. I take all your facts at face value. It’s the pronunciation of some things.

Joyce Vance:

I remembered that and I went back and I looked at some stories from late November about that. And Giuliani, as they always did, wrote it off after he made the comment about insurance as a joke. But that’s the first question that I’m asking, if I get to de-brief Giuliani, “So what did your insurance consist of?”

Preet Bharara:

Yeah. I’ve seen that question asked on the airwaves. I don’t know that we know what that’s about. Look, it’s a standard operating ploy on the part of Trump and his supporters. They say something that they mean. And then when someone picks up on it, they say, “Oh, it’s just a joke.” I heard Andrew, his son, say it was a joke. Some of his jokes land, some of his jokes don’t land, which I thought was not an unreasonable way to try to deflect the question.

Preet Bharara:

But yeah, it’s very weird. The whole relationship is weird. Giuliani and Trump have had ups and downs. Reportedly, Giuliani wanted a cabinet position of great significance. Didn’t happen. There have been times when the team around Trump has wanted Giuliani to stay off the air during the various scandals of the Trump era. That’s complicated relationship, but Trump seems to still like him and want him to defend Trump, notwithstanding the people around Trump thinking that Rudy is terrible and bad news.

Preet Bharara:

I guess, the other thing we should talk about is this issue of attorney-client privilege. I stand by my view that the likelihood of a charge is relatively significant, but how quickly will that happen? On the one hand, some people will say that… And I’ve heard people say this, that the investigation must pretty far along. They must have a lot of other information. By the way, people should appreciate that the Southern District, and Giuliani seems to have confirmed this, must already have many of Giuliani’s communications. You don’t get that from the search of the premises or the seizure of the devices, although there might be some things on the devices you only get through seizure.

Preet Bharara:

But you get that information from third parties. So emails sent by Gmail and certain other kinds of things. You get that from Verizon or AT&T, wherever the provider is, but there might be new information on the devices and new information on the computers and in the files of Rudy Giuliani found on the premises. But there’s going to be litigation about all this, because it is true that there’s such a thing as the attorney-client privilege.

Preet Bharara:

They will be established, something like a filter team. We saw that in the Michael Cohen case, and there’ll be challenges to what information can be used, what information cannot be used, what information has to be turned over. Just to remind people, that in the Michael Cohen case, the court actually appointed an outside third party, a former federal district court judge, to oversee that process. It took some time, but then as soon as the matter of the attorney-client privilege and the filtering of documents was completed, Michael Cohen was charged within days of that time. What do you think about the timing here?

Joyce Vance:

I bet the Southern District went to school on the Cohen situation. They are probably better prepared. We called it a taint team in my district, having a separate team that’s involved-

Preet Bharara:

Yeah. Well, I went on Samantha Bee once and I said the word taint.

Joyce Vance:

What happened?

Preet Bharara:

I don’t even want to go into it. This is a family show, but since the Samantha Bee appearance, I say filter team.

Joyce Vance:

And I’ve heard clean team too, essentially a group of investigators and prosecutors who won’t try a case if there’s an indictment, so that if they see information that’s attorney-client privilege, they are not tainted by it, as we say in the South.

Preet Bharara:

You know why I say filter? For insurance purposes.

Joyce Vance:

Filter is pretty good insurance for you. I’m going to have to go back and watch that Samantha Bee episode, Preet. I like it when you get in trouble.

Preet Bharara:

There was another very embarrassing thing that happened on that show that my daughter still makes fun of me about, which also I can’t discuss on this family program.

Joyce Vance:

Well, good. It’ll be a Vance family viewing tonight. Now I know what we’re going to do. So attorney-client privilege. I think we should say, the first thing about searches and timing is there are these complicated fourth amendment questions when you are looking at electronic devices. And so, let’s say you’ve got probable cause to search the pictures on someone’s iPhone because you have a drug case, and you’ve heard that they keep pictures of drugs and drug transactions on their phone, you go in and suddenly you find evidence of possession of child pornography.

Joyce Vance:

And so, your investigation can morph, and that can slow things down. Something that you often find on phones. I hope I’m not giving up state secrets here, is sometimes you can have trouble getting into certain kinds of accounts that you know people have, and you get on their iPhone and they’ve got a notes file called passwords. And all of a sudden you’re into everything with no need to jailbreak.

Joyce Vance:

But given that, and given the experience in Cohen, one would suspect that the prosecutors here have tried to be thoughtful and set up a streamlined process that will give them access to the fruits of this search as quickly as possible, so that they can get on with their business. It doesn’t look like anything here has a statute of limitations problem. But of course, there is a five-year federal statute of limitations that’s ticking, and prosecutors are always mindful of that and wanting to get on with their business.

Preet Bharara:

Yeah. I mean, one point that you raise is very significant here.

Joyce Vance:

Only one?

Preet Bharara:

No, no, no. Many things. Many things, just all the things, all of the things. But the one thing I wanted to mention is search warrants have to be very particular. You have to recite in the search warrant application, the statutory violations that you suspect there’s probable cause to support a charge of. You have to be specific with respect to who the targets and subjects are. And you have to be specific with respect to what evidence you think you’re going to find and what the materials are that you’re going to seize. That is all true.

Preet Bharara:

However, as you note, they can come across other stuff. So if they have the ability to take a set of computer files, and it turns out that there’s evidence of money laundering there, even if that wasn’t one of the predicate statutes that they were investigating a violation of, that evidence, they don’t have to shut their eyes to, as long as it was properly obtained. There could be other possible exposure for Rudy Giuliani.

Preet Bharara:

You go into someone’s home based on a court authorized search warrant, people call this the plain view rule, and you’re going in there to see if there was check kiting or some other such financial crime. And you see a mound of cocaine on the table, you can bring a drug charge. So Rudy has to be worried about that too.

Joyce Vance:

Depending on what he’s been up to. I’ll speculate wildly for a minute. We didn’t really include this when we talked about what charges he might be facing. But if there were payments of one type or another coming in to him from foreign sources that he maybe didn’t report, it’s possible that they could find, for instance, evidence that could expand whatever investigation they have into tax fraud. There are all kinds of possibilities like that.

Preet Bharara:

Yeah. There are. I guess we’ll see how the Giuliani thing unfolds, but it seems very significant and very serious, and things will probably keep happening on a fairly short timeframe. But the last point I want to make is I find a particular argument that Giuliani and his son and others are making peculiar. He keeps saying this thing, and I’ve been thinking about this for the last week. He says, “If this can happen to me, it could happen to anybody.” That’s meant to be some kind of scary thought that, “Look at me. I’m really powerful, and I’m really connected, and I was loyal to the president. And if it can happen to me, it can happen to everyone.”

Preet Bharara:

I had the opposite reaction to that. I don’t think that’s a scary thing. I think that’s a beautiful thing. It goes to the idea that, yeah, what can happen to you can also happen to the former lawyer of the president, the former mayor of New York. You know why? Because we believe in the rule of law. You know why? Because no one is above the law. And just because someone is powerful or connected, or has a relationship with the former president of the United States, doesn’t place him beyond legal process. Doesn’t place him beyond being held accountable if there is evidence of the commission of a crime.

Preet Bharara:

It’s a very entitled way that I keep hearing these folks talk about this, “If this can happen to me, it can happen to you.” Well, I don’t quite understand why they think that has the power they think it has. Am I looking at that the wrong way?

Joyce Vance:

I have the same reaction that you had. The rule of law is back, baby. It’s important for this reason. The criminal justice system, really our legal system, only works as long as people have confidence in it, that the confidence of the people in this country and the legal system flagged over the last four years. For one thing, we had a president who took constant pot shots at the FBI, even called out prosecutors by name.

Joyce Vance:

And so, to see now that someone, even in a high position, connected to the former president, who is suspected, credibly suspected, of engaging in wrongdoing, that he can be subject to a search just like anybody else who violates the law, that is really reaffirming here. That’s the beginning of restoration of confidence in our legal system and in the rule of law. And I am overjoyed to see it.

Preet Bharara:

Yeah. So next time you see someone who’s powerful or used to be powerful exclaiming about how they can’t believe it’s happening to them, given their power, applaud that.

Joyce Vance:

Absolutely. That’s such a great counterpoint to where we started, this feeling of sadness that a former US attorney, somebody steeped in the law, could engage in this sort of behavior. I think this is really the saving point, that it does show us that the rule of law actually does work. Its much rumored demise is a little bit overblown.

Joyce Vance:

Speaking of the rule of law, interesting developments in Georgia, in the homicide of Ahmaud Arbery, an African-American man who was killed while he was out jogging. This isn’t a police case. This is a little bit different from what we’ve been looking at in Minnesota with George Floyd.

Preet Bharara:

Yeah, absolutely. We have been talking about that case on this show. It was last February 2020. The only thing that the Ahmaud Arbery was doing was jogging on a public sidewalk or road. He was pursued by a father and son, Travis McMichael and Gregory McMichael. And then there was a third person with them following in a car, and people may recall the video. They confront Arbery, they provoke the confrontation. It looks like they try to confine him physically. And then, without provocation, he’s shot.

Preet Bharara:

The reason we know about all this is that the person who was following in the car, William Bryan, videotaped the thing. Now it’s not a police case, but it had the feel of a police case in the following sense, back in the early days. The shooting happened, no charges were brought, and the prosecutors, I think, were reluctant to bring any charges. And then, as you see again, and again, and again, in the police cases, but this happened in this case as well, a videotape surfaces, this one taken by one of the perpetrators, that depicts much more accurately what happened.

Joyce Vance:

It’s interesting to note that the dad in this duo is a former police officer. When the officers arrived on scene, they knew him, they were familiar with him. There have even been some recusals among prosecutors. So that gives it even more of a flavor of a police case. But it’s really not, in the technical sense. It’s not an excessive force case. There are state charges. The new news in this case is that in addition to that state indictment for murder and assault, there are new federal charges.

Preet Bharara:

So multiple federal charges, including the federal hate crime statute being invoked, 18 United States Code, section 245, which says you can be prosecuted if you, whether or not acting under color of law, interfere with or attempt to injure, intimidate, or interfere with any person because of his race, color, religion, or national origin, et cetera, et cetera. And if death results, you can face imprisonment for any term of years, or for life, or both, or may be sentenced to death.

Preet Bharara:

Then there’s a kidnapping charge as well. So it’s very serious. But the interesting thing to me, Joyce, is this is not a case where the locals didn’t do anything. Initially, they didn’t do anything. But in the state of Georgia, these defendants had been charged with significant crimes. They had been charged with murder and assault and faced already, if convicted on those counts, imprisonment for life without parole or death.

Preet Bharara:

Are you surprised, a little bit, Joyce, that given the strong action of the local authorities, that the federal government so quickly decides to bring its own homicide charges, or would you have expected them to wait and see and act as a backstop? What do you think is going on here, and does this signal something different with this justice department?

Joyce Vance:

I am a little bit surprised, but I’ve actually done this same thing before, and I’ve done it at the request of local DA’s who were concerned about their case, or maybe concerned about the composition of the jury that they would face. They’ve actually put their case on hold to let a federal prosecution proceed. But usually, that happens when the state charges aren’t as serious as the federal charges. Here they’re on a par because of the sentencing regime that exists here.

Joyce Vance:

This is not a Metro Atlanta case. The federal case is actually indicted out of the Southern District of Georgia, that’s Savannah. But it’s not brought exclusively by the local US attorney’s office. It is brought by the civil rights division with Pam Carlin, who’s the acting head of that division, signing off on the indictment. I’m interested to see which case goes first here, the federal case or the state case.

Preet Bharara:

It’s interesting. I guess it raises the question… I’ve talked about this before, but I haven’t heard you talk about it, and I wonder if you have the thought, of what the point is of a hate crimes charge or even a hate crime statute. But I guess the more complicated question is what is the purpose of a charge here when you already have counts that can be brought without having to prove motive, which adds a burden, right?

Joyce Vance:

Mm-hmm.

Preet Bharara:

It’s another thing you have to prove. And there’s some testimony here from someone who said that there was a racial slur uttered by one of the defendants at the time of the killing. Why do you need that, people ask, if there’s otherwise an incredibly strong charge that can result in the ultimate penalty? What is gained by bringing a charge under a statute that actually requires you to prove something more than you would otherwise have to prove?

Joyce Vance:

The prosecutor talk is the state case fails to vindicate a significant federal interest. What that comes down to is this notion that a murder case doesn’t fully capture the conduct that’s involved in a hate crime. I mean, this one characterization of what happened here is that it’s a modern day lynching. And that would be one of the reasons for DOJ to get involved. I think reasonable people can debate whether or not state murder charges would fully vindicate that interest, particularly if during the sentencing phase, this sort of evidence is introduced.

Joyce Vance:

But I’m curious about your experience here. You point out the fact that the federal charges have this additional element of motive. This is what makes these cases under 245 and also under 18 US Code 242, the civil rights statute, so very difficult to bring, because inevitably the defense here is going to be… And it’s a horrible defense, I’m not adopting it. This guy was out in our neighborhood. There had been a string of burglaries. He was in some construction where he didn’t belong. We were following him because we thought he was a criminal, not because he was Black.

Joyce Vance:

And then, the government bears the burden of proving racial animus beyond a reasonable doubt, which can be a real stumbling block in the federal cases. That’s probably why the kidnapping charge is there too.

Preet Bharara:

Yeah. It’s a complicating factor. I think it’s worthwhile and justified in cases where you have that evidence. It looks like here they have no good evidence to that effect. But on the pro side, what I’ve always said is, further to what you just commented on, that there’s certain kinds of crimes you have to note their heinousness. It’s one thing if you rob someone or kill someone for greed or out of passion, or because you were a hired gun, and that’s terrible, and we punish that, and society recognizes that horror.

Preet Bharara:

But it’s quite a different thing, in a pluralistic society, to single people out because of their color, or their religion, or their national origin or their gender identification. There’s something about that that’s so horrifying to civilized society and democratic society, that there has to be something extra. I mean, that’s the basic philosophy that goes into the passage of those kinds of stuff.

Preet Bharara:

By the way, the other thing we should point out, I don’t know if irony is the right word, there was in fact, this crime, this murder of Ahmaud Arbery that caused Georgia to be one of the last States in the country to itself pass the hate crime statute, under which these folks can’t be charged because the statute that the local hate crime statute in Georgia was passed after the killing of Ahmaud Arbery and in commemoration of him. But it’s interesting that there’s a crime that took place, caused Georgia to pass the hate crimes statute. And then the people involved in it get charged with the federal hate crime statute. But that’s the thinking. But it does create an additional burden for the government.

Joyce Vance:

I always think, and maybe it’s trite in some sense, but it means a lot to me. I always think of Martin Luther King saying that the moral arc of the universe is long, but it bends towards justice. It’s painful. This crime shouldn’t have had to occur for Georgia to get a viable hate crime statute. But one thing that gives me some optimism about the time that we’re living in is seeing people’s willingness to confront these sort of racially motivated situations, whether it’s this horrible wave of anti-Asian crime that we’re seeing, or whether it’s this sort of a killing and to come up with a legal way of dealing with it.

Joyce Vance:

That’s I think where we want the country to end up, where we’re condemning this sort of conduct, not just with words, but actually with statutes that make it a special crime and particularly susceptible of punishment.

Preet Bharara:

Here’s the other thing that’s notable about this, and I’ve been thinking about this for some days also. The video again and again and again, we see there’s one version of events that officers and others present to the world, or don’t present to the world. And then you see a videotape. Sometimes it’s a body cam, sometimes it’s a bystander, sometimes it’s one of the perpetrators themselves like we have here. It’s caused me to think back to all these concerns, legitimate concerns that people have had over the years about there being too many surveillance cameras in too many places, and that we are creating a surveillance state.

Preet Bharara:

I totally get that point of the surveillance state. But then here, it turns out that incident after incident we have, it was the surveillance tapes. It was the fact that there… And by the way, sometimes it’s just actual surveillance cameras that are on the street, not people intentionally taking and deliberately taking film. It’s the surveillance video that has saved us from an autocratic state where police and citizens who think that their police have taken the law into their own hands. I haven’t fully thought that through, but is there something to that?

Joyce Vance:

It’s a perplexing irony. Like you, I’m not a huge fan of having the government film all of my conduct. I was always a little bit squeamish about cameras at intersections, that were being used for traffic tickets. But that said, I think at least one place that people can agree that filming should take place is with police. They should be wearing body cameras. I am astounded by the number of situations where police have turned off their body cameras or weren’t wearing their body camera that day.

Joyce Vance:

The George Floyd Act, if the Senate passes it in the state that the House passed it in, would expand the requirements for the use of body cameras. But I think at a minimum, for police contact with the public, it’s essential. Most people are a little bit worried before they get married, but we’ve got a story this week that adds a whole new dimension to concerns people need to add to their list of things that they should worry about when they’re about to get married.

Preet Bharara:

Especially of a criminal nature. This is something that the team found in the New York Times about interesting incident relating to marriage. This woman, Karen McBridge got married and decided to take her spouse’s last name as some people do. She lives in Texas. She emailed the Texas Department of Motor Vehicles last year to set up an appointment to change the last name in her driver’s license. And so, the DMV… How’s the DMV down in Alabama?

Joyce Vance:

They’re pretty good, but I have to say that because I need to get my license.

Preet Bharara:

Don’t besmirch the DMV when you have to get a license.

Joyce Vance:

They’re good people. I love them.

Preet Bharara:

In this case, the DMV emailed McBridge back and informed her that before they could give her the updated license, she had to resolve an issue from the state she used to live in, Oklahoma. And they gave her a case ID and a phone number to call.

Joyce Vance:

This is probably a cautionary tale about why you should just avoid that step of taking your husband’s last name. McBridge has no idea what the Oklahoma issue could be, but she had lived there. So she decides to call the number and find out what’s up. Her comment was she called and the lady told her she’d been charged with felony embezzlement. I love her comment. She said, “I thought I was going to have a heart attack.”

Preet Bharara:

I don’t even know what felony embezzlement is, but it sounds very serious. But what was the item she was accused of embezzling? A VHS copy… People don’t even know what VHS is anymore. I don’t even know what it stands for.

Joyce Vance:

Right. How can it be a crime if you don’t know what it is?

Preet Bharara:

It’s like maybe it’s a crime because it’s like stealing a fossil. It’s like if you go to the museum of natural history and you steal a dinosaur skeleton. That’s what a VHS thing is. Anyway, the things she was accused of embezzling was a VHS copy of Sabrina The Teenage Witch, an old ’90S television sitcom, which I never watched.

Joyce Vance:

I was a big fan of Bewitched, but I don’t think I ever watched Sabrina.

Preet Bharara:

It’s a little further back. That’s not the ’90s, Joyce.

Joyce Vance:

Am I dating myself?

Preet Bharara:

It’s not the ’90s.

Joyce Vance:

So McBride says that the woman on the phone tells her that she’s been charged over the VHS tape. And McBride says, “I had to make her repeat it because I thought, ‘This is insane. This girl is kidding me, right?'” She wasn’t kidding.

Preet Bharara:

Allegedly, I think we need to say allegedly here, back in 1999, McBride had rented the tape from Movie Place, not Blockbuster. Never heard a movie place?

Joyce Vance:

Mm-mm.

Preet Bharara:

Which has since closed, and never returned it. And the local Sheriff’s office issued a warrant for her arrest one year later. I think there are probably tapes I haven’t returned, and I hope there’s not a pending warrant against me somewhere.

Joyce Vance:

I’m still trying to figure out how it’s a felony embezzlement. I mean, usually there’s some dollar amount threshold. What’s a VHS tape worth maximum?

Preet Bharara:

And especially back then.

Joyce Vance:

I mean, maybe 15 or 20 bucks. But okay.

Preet Bharara:

Right. Maybe it’s an NFT, which…

Joyce Vance:

Can you make a video, a VHS-

Preet Bharara:

Sabrina The Teenage Witch NFT.

Joyce Vance:

… become an NFT?

Preet Bharara:

Probably not in 2000. I don’t know.

Joyce Vance:

Wow. Okay.

Preet Bharara:

We keep getting derailed from the story.

Joyce Vance:

We’re going to have to talk about NFTs down the road. So McBridge had no recollection of renting the video. She suspects it wasn’t her at all because she lived with a man who she thinks committed the devious act of renting the video in her name, because he had two young daughters. He was probably too embarrassed to attach his name to Sabrina The Teenage Witch.

Preet Bharara:

According to McBridge, and she seems credible on this, seems like a good defense, “I’ve never watched that show in my entire life. Just not my cup of tea.” The story has a happy ending, Joyce, right?

Joyce Vance:

It does. I mean, this is a great exercise of prosecutorial discretion.

Preet Bharara:

According to court documents, prosecutors dropped the embezzlement charge against McBridge in consideration of the “best interests of justice”.

Joyce Vance:

It’s been a good day for justice here on the Insider Podcast

Preet Bharara:

Remember, vote for the Stay Tuned episode, nominated for a Webby. Go to vote.webbyawards.com, then search Stay Tuned. Joyce and I will be back next week. Send us your questions at [email protected]

Joyce Vance:

We’ll do our best to answer them.

Preet Bharara:

That’s it for this week. CAFE Insider is presented by CAFE studios and the Vox Media Podcast Network. Your hosts are Preet Bharara and Joyce Vance. The executive producer is Tamara Sepper. The senior producer is Adam Waller. The technical director is David Tatasciore. The CAFE team is Matthew Billy, David Kurlander, Sam Ozer-Staton, Noa Azulai, Nat Wiener, Jake Kaplan, Jennifer Korn, Chris Boylan, and Sean Walsh. Our music is by Andrew Dost. Thank you for being a part of the CAFE Insider community.