“The government considers it appropriate that the court appoint a special master to determine the privileges in relation to the materials seized under the arrest warrants,” said attorneys at the US law firm Audrey Strauss wrote in a letter sent last week to the judge at the US District Court Paul Oetken. The letter was unsealed by the court on Tuesday.
Prosecutors appear to have written to Oetken for overseeing a criminal case in which two Giuliani employees are charged with campaign funding and fraud. Giuliani was not charged.
The letter was sent Thursday, the day after Giuliani’s Manhattan home and office were raided. The judge unsealed it on Tuesday afternoon. In an order issued Tuesday, Oetken gave Giuliani until May 10 to respond to the government’s proposal.
As part of a special master’s proceeding, a respected attorney – often a retired judge or judge – often oversees searches of emails, text messages, photos, audio and video files to determine what falls under the warrant. The special master could also assess whether such records are covered by attorney or client law or other safeguards that lawyers have for their records.
The prosecutor’s proposal in Giuliani’s case appears to involve a special master overseeing the review of privileges, but not the sorting of the records being acted upon. Giuliani, Trump or other Giuliani customers could ask Oetken to expand the responsibilities of the special adviser.
A Giuliani attorney, Robert Costello, declined to comment on Tuesday.
When the FBI raided Trump attorney Michael Cohen in 2018, prosecutors said the appointment of a special master was “neither necessary nor appropriate”. Attorneys for the US Attorney’s Office in Manhattan instead said they wanted to rely on a “strict filtering protocol” to ensure no privileged or unresponsive records reached investigators. This approach is sometimes referred to as a “corrupt team” which then passes on records that are believed to have a right to see those conducting the investigation.
After Cohen and Trump’s attorneys took legal action to block the process, U.S. District Court judge Kimba Wood agreed to allow the sorting and review to be overseen by an independent third party: retired Judge Barbara Jones .
Wood agreed to appoint a special master after saying this could increase the “perception of fairness” in the high profile case, although prosecutors in the Giuliani case stressed in their letter to Oetken that the appointment was not necessary either ensure fairness itself. “
Wood’s decision appeared to have been influenced by the fact that Trump, the Trump Organization, and Cohen had agreed to bear the cost of the review.
It was not immediately clear who would pay for a special master in the Giuliani case or whether Trump would attend through his lawyers. A Trump spokesman, Jason Miller, did not respond to a request for comment.
Ultimately, more than 4 million articles were reviewed based on the Cohen search in a process lasting several months.
The latest developments follow a ruling by a Richmond, Virginia federal appeals court last year on an unrelated case. A panel of that court opposed the Justice Department’s use of a dirty team of government agents to sort and categorize materials seized from a Baltimore law firm.
Five days before the January administration change, the Justice Department asked the full bank of the 4thth Circuit to rehearse the case. The court refused later that month. That left the decision and set a precedent that now only rules Maryland and Virginia.