I have long been a critic of Rudy Giuliani, including interviews and press conferences that I condemned for making unsupported statements (as well as comments that were contrary to the interests of his client). Giuliani can, however, have a valid point. The Biden administration sent FBI agents to search his home and other lawyers and seize “electronic equipment”. According to Giuliani, this included computers and cell phones with electronic files. However, agents reportedly refused to take hard drives that Giuliani said contained material related to our president’s son, Hunter Biden. If the warrant called for the seizure of computers and electronic devices, it makes no sense at all, especially if the word of the target of finding the contents of the devices is accepted. As a defense attorney, I often question the scope of seizures on searches that are excessive or too broad. I have never come across a search where agents refused to bring evidence, usually defined under the warrant. We haven’t seen the warrant itself, but this is an odd omission given the computer seizures.
Giuliani was with “Tucker Carlson Tonight” on Thursday describing the 6am raid of his home by seven FBI agents. He said the agents had confiscated laptops and cell phones in what is believed to be an investigation into possible violations of the Foreign Agent Registration Act (FARA). This in itself is noteworthy as up until a few years ago violations of FARA were rarely prosecuted and most violations were treated as civil or administrative measures.
Giuliani denied such violations: “I have never represented a Ukrainian citizen or official before the United States government. I’ve refused it several times. I had contracts in countries like Ukraine. The contract contains a clause that says I will not lobby or represent abroad. I’m not doing this because I thought it was too compromising. “
However, it is this statement that caught my eye:
“At the end of the search, when they picked up about seven or eight of my electronic items, they didn’t take the three hard drives, which are electronic devices, of course. They just mimic the computer. I said, “Well, don’t you want this?” And they said: what are they? I said, “These are Hunter Biden’s hard drives. And they said ‘no, no, no.’
On the one hand, the FBI could argue that they already have this evidence because the laptop was previously confiscated. But how do they know that hard drives held the same information? The search warrant was based on the allegation that Giuliani posed a risk of evidence destruction. But the agents took his word for what was on the devices? From what the agents knew, Giuliani could have taken all of his incriminating FARA evidence and simply slapped a “Hunter Biden Stuff” label on the outside.
Another explanation could be that the search warrant was narrow. The Justice Department could exclude hard drives out of concern for privileged communications. However, I haven’t seen these types of limitations on previous searches. In previous cases, the Department of Justice minimized such searches by filter teams rather than leaving some storage devices. This would also not make sense as the current cell phones or laptops may not have records from the critical time. Additionally, 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 that no such hard drives have been offered. However, if it did, one would expect the agents to return for the stressed disks that were missed in the previous scan.
I’ve previously written about the Hunter Biden laptop and the virtual news outage of history, including the strikingly reluctant reporting after the publication of his book. I honestly don’t understand why the FBI would be reluctant to have this evidence as it is likely a duplication of the evidence already held by the prosecutor. I’m not assuming this was an attempt to protect Biden. I am just honestly confused by the agents’ decision as to whether this warrant required the seizure of electronic equipment and materials.
Giuliani, who had earned well-deserved fame as a mob prosecutor, said, “I said, ‘Are you sure you don’t want her? I mean the warrant required them to accept it. ‘No no no.’ One last time I said, “Don’t you think you should take it?” And they said, ‘No.’ Giuliani added, ‘But they relied on me, the man who had to be ambushed that morning because – I’m going to destroy the evidence? I’ve known this for two years, Tucker. I could have destroyed the evidence. The evidence is exculpatory. It proves that the President and I and we are all innocent. They are the ones who commit – it’s like a projection. You commit the crimes. “
This was an extraordinary search aimed at the advice of the former president. There were reports of disagreements in the Justice Department over whether to apply for the arrest warrant. However, the Justice Department convinced a judge that electronic evidence and records needed to be confiscated to prevent destruction and facilitate possible prosecution.
The Department of Justice has highlighted the need to acquire hard drives in its training manuals, including the publication of Searching and Seizing Computers and Obtaining Electronic Evidence in a Criminal Investigation:
The typical computer user views the contents of a hard drive as what the computer’s user interface displays: files, folders, and applications, all neatly arranged and self-contained. However, this is only an abstraction presented to make the computer easier to use. This abstraction hides evidence of the computer usage that modern operating systems leave behind on hard drives. As computers run, they leave evidence on the hard drive – much more evidence than just the files that are visible to users. Remnants of completely or partially deleted files can still remain on the drive. Parts of files that have been removed may also remain. “Metadata” and other artifacts left by the computer can show information about which files were recently accessed, when a file was created and edited, and sometimes even how it was edited.
The Department of Justice defines terms such as “records” that specifically include hard drives. It promotes the following language:
The terms “records” and “information” encompass all of the foregoing evidence in whatever form and in whatever manner it was created or stored, including any form of computer or electronic storage (e.g. hard drives or other media on which data can be stored);; any handmade form (such as writing, drawing, painting); any mechanical form (such as printing or typing); and any photographic form (such as microfilm, microfiche, prints, slides, negatives, video tapes, films, photocopies).
That is why I am confused by this report. I’ve waited to see if there is an obvious explanation and maybe I’m missing one. I just find the account confusing.
We’ll have to wait and see if it’s really just a possible violation of FARA. However, we should be able to see the warrant and the FBI should be able to explain why electronic storage devices are not required or why the word of target is used in relation to their contents.