Federal prosecutors are reportedly interested in obtaining records of electronic communication from Rudy Giuliani, President Donald Trump’s lawyer. According to NBC news, two sources said that prosecutors in Southern District of New York have discussed requests for access to Giuliani’s emails with unspecified Department of Justice officials. The investigation into Giuliani is said to be “very active.”
The investigatory request is quite the procedural pretzel in its own right: Giuliani himself was once the U.S. Attorney for the Southern District of New York prior to becoming the mayor of New York City. Now, that same office must request permission from the Trump administration DOJ in order to proceed with the request – all while Giuliani continues to sit at the right hand of the president and as Attorney General Bill Barr heads out the door.
At this point, only general information has been confirmed about the probe into Giuliani’s conduct. The Wall Street Journal reported in 2019 that the investigation was targeting Giuliani’s potentially illegal gains from his work with Lev Parnas and Igor Fruman in a Ukrainian natural-gas business. Parnas and Fruman already face federal prosecution on multiple fraud charges.
Legal and law enforcement experts have pointed out that the reported discussions regarding Giuliani’s emails suggests that the investigation is getting close to him.
Prosecutors can obtain emails only if they first have probable cause that a crime has been committed.
Read: SDNY is fairly close on Rudy. (And a pardon stops this in its tracks – unless the state picks it up). https://t.co/HFZp6Co0eO
— Elie Honig (@eliehonig) December 22, 2020
— Frank Figliuzzi (@FrankFigliuzzi1) December 22, 2020
Any federal investigation or prosecution of Rudy Giuliani, though, could be stopped by a presidential pardon. Given Giuliani’s loyalty to the 45th president since the early days of the Mueller investigation and beyond, many have wondered if he will be on the list of those gifted in a coming “wave of pardons.” Still others have wondered whether federal prosecutors will wait to pounce until after President-elect Joe Biden enters the Oval Office.
Either way, New York State has already prepared for a scenario like this by employing some legal maneuvering of its own. The Empire State passed a law in Oct. 2019 that closed the so-called double-jeopardy loophole–but only as it might apply to presidential cronies. The change was adopted specifically as a means of thwarting President Trump in using his presidential pardon power; under the new law, Giuliani could be prosecuted by New York State even if he received a presidential pardon, and if the pardon was gifted in exchange for materially benefitting the president.
Prior to New York’s legislative change, the state had self-imposed a general limitation on its own sovereignty—shielding those who have been federally pardoned from a subsequent state prosecution.
Robert J. Costello, an attorney for Rudy Giuliani, did not immediately respond to a request for comment.
[image via Drew Angerer/Getty Images]
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