I have been a long critic of Rudy Giuliani going back years, including interviews and press conferences that I have condemned for making unsupported statements (as well as comments inimical to his client’s interest).
However, Giuliani may have a valid point.
The Biden Administration sent FBI agents to raid his home and other lawyers to seize “electronic devices.” According to Giuliani, this included computers and cell phones containing electronic files. However, the agents reportedly refused to take hard drives that Giuliani said contained material related to Hunter Biden, the son of our President.
If the warrant did call for the seizure of computer and electronic devices, that makes no sense at all, particularly in accepting the word of the target of the search as to the contents of the devices.
As a defense attorney, I often question the scope of seizures in such searches as excessive or overly broad. I have never run into a search where agents refused to take evidence that is ordinarily defined within the scope of the warrant. We have yet to see the warrant itself but this is a curious omission given the seizure of computers.
Giuliani described the search of his home at 6 am by seven FBI agents. He said that the agents seized laptops and cell phones in what is believed to be an investigation into the possible violation of the Foreign Agent Registration Act (FARA). That itself is notable since, until a few years ago, FARA violations were rarely prosecuted criminally and most violations were treated as civil or administrative measures.
Giuliani denied such violations: “I never represented a Ukrainian national or official before the United States government. I’ve declined it several times. I’ve had contracts in countries like Ukraine. In the contract is a clause that says I will not engage in lobbying or foreign representation. I don’t do it because I felt it would be too compromising.”
However, it is this statement that stuck out for me:
“At the end of the search, when they had taken about, I would say, seven or eight electronic items of mine … they weren’t taking the three hard drives, which of course, are electronic devices. They just mimic the computer. I said, ‘Well, don’t you want these?’ And they said, ‘What are they? I said, ‘Those are Hunter Biden’s hard drives.
And they said ‘no, no, no.”
On one hand, the FBI could argue that they already have that evidence because the laptop was previously seized. However, how do they know that hard drives contained the same information? The search warrant was premised on the claim that Giuliani was a risk for evidence destruction. Yet, the agents took his word for what was on the devices? For all the agents knew, Giuliani could have taken all of his incriminating FARA evidence and just slapped a “Hunter Biden Stuff” label on the outside.
Another explanation could be that the search warrant was narrowly written. The Justice Department could exclude hard drives out of concern for privileged communications. However, I have not seen that type of limitations in prior searches. In prior cases, the Justice Department minimizes such searches through filtering teams as opposed to leaving some storage devices. It would also make no sense since the current cellphones or laptops may not have records from the critical period. Moreover, the agents could claim that the search warrant is limited to Giuliani’s records, not those of clients or third parties. However, how would they know what was on the hard drives?
It is also possible that the FBI could say that Giuliani is lying and there was no such hard drives offered. Yet, if that were the case, one would expect the agents to return for the claimed hard drives missed in the prior search.