Search WarrantOn April 28, 2021, federal agents executed search warrants at the home and office of Rudy Giuliani and seized cell phones and computers.  Mr. Giuliani is former President Trump’s personal lawyer, a former United States Attorney, and a former New York City mayor.  This high-profile search and seizure reportedly sought communications related to an ongoing criminal investigation into whether Mr. Giuliani’s activities on behalf of Ukrainian officials ran afoul of federal lobbying laws.

Mr. Giuliani’s prominent place in the political zeitgeist has resulted in lots of commentary and conjecture since news of the search broke, but relatively little of that commentary has focused on legal process.  The legal niceties of the investigation and execution of the search warrants may not be ratings fodder for cable news, but those niceties are critical safeguards of constitutional rights and the attorney-client relationship.  Executing search warrants on a lawyer’s home or office presents special problems because of the likelihood that some of the materials seized may be protected by the attorney-client privilege or the attorney work product doctrine.  Indeed, soon after the Giuliani search warrants were executed, his lawyer raised the privilege issue and said the seized devices were “replete with material covered by the attorney-client privilege and other constitutional privileges.”

DOJ Procedure for Obtaining and Executing Attorney Search Warrants

Mr. Giuliani is hardly the first lawyer to have his office or home searched.  Because of the special issues attending attorney searches, the Justice Manual, a compilation of publicly available Department of Justice (DOJ) policies and procedures, contains guidelines that federal prosecutors and investigators must follow when seeking, obtaining, and executing a search warrant of any attorney who is the subject or target of an investigation.[1]  The purpose of the guidelines is to ensure that experienced senior DOJ officials exercise “close control” over the search of an attorney’s potentially privileged materials. Justice Manual, at § 9-13.420.  That “close control” begins before a warrant application is even made to a court, and it includes policies and procedures governing the decision of whether to seek a search warrant, the search warrant application process, execution of the search warrant (including collection of documents and other materials), and review of seized materials.

Step 1 – Obtaining Internal DOJ Approval

Before applying for an attorney search warrant, a federal prosecutor must consider the employment of alternative investigative methods to obtain the sought-after materials (e.g., issuance of subpoenas to the attorney or third parties) unless those alternative methods would compromise the investigation, could result in the destruction or obstruction of evidence, or would be otherwise ineffective.  Even if those alternatives are not feasible, a federal prosecutor must obtain “the express approval of the United States Attorney or pertinent Assistant Attorney General” before applying to a court for a search warrant.  In addition, a federal prosecutor must consult with the Policy and Statutory Enforcement Unit (PSEU) of DOJ’s Criminal Division in Washington (Main Justice) and provide for internal review a copy of the proposed search warrant and supporting affidavit, as well as instructions to be provided to the agents conducting the search “to ensure that that the prosecution team is not ‘tainted’ by any privileged material inadvertently seized during the search.”  PSEU must in turn consult with the Deputy Attorney General, who is required to assign an attorney with “the requisite knowledge and experience to provide meaningful input to PSEU” and to keep the Deputy Attorney General apprised.  This additional input is required by a December 2020 memorandum from the then Acting Attorney General.  It is aimed at ensuring uniformity because “[i]n many cases – particularly those involving significant investigations and high-profile matters – proposed searches are separately reported in urgent reports to the Attorney General and the Deputy Attorney General.”

Step 2 – Obtaining the Warrant from a Federal Judge

If a federal prosecutor obtains approval from the U.S. Attorney and Main Justice, a search warrant application must be made to a federal judge, usually a magistrate. See Fed. R. Crim. P. 41.  To obtain a warrant, the government must establish probable cause that a crime has been committed and that evidence of that crime can be found where the search is to be conducted.  Although the probable cause standard usually is not difficult to meet as a matter of law, federal courts are sensitive to the protections afforded attorneys’ privileged and confidential materials, and the government can expect close judicial scrutiny of an attorney search warrant application before the warrant is issued.  In addition, federal courts sometimes include in the warrant itself limits and restrictions on the scope of the search in order to minimize the government’s intrusion into the attorney-client relationship.

Step 3 – Execution of the Warrant and the Role of Defense Counsel

Once a warrant is issued, investigators must follow certain procedures in its execution.  Investigators must comply with any limitations in the warrant itself, they must avoid searching or seizing privileged and confidential materials outside the scope of the search warrant, and they should consult with a prosecutor where they have questions as to what materials should or should not be viewed or seized while on site.  According to the Justice Manual, that prosecutor should be someone not involved in the investigation so that the investigative team is not exposed to otherwise privileged materials.

Counsel for the targeted attorney can play an important role in this process.  If counsel can get on site fast enough and communicate with the searching investigators and supervising prosecutor in real time, counsel may be able to protect from search and seizure the confidentiality of materials protected by the attorney-client privilege and attorney work product doctrine, which are clearly outside the scope of the warrant.  In addition, while the search is ongoing, counsel can ask the issuing magistrate to impose further limits or restrictions on what the investigators can look at and seize.

Step 4 – Reviewing Seized Materials for Privilege

Government “Taint” Teams

Following completion of the search, the Justice Manual cautions that federal prosecutors “must employ adequate precautions to ensure that the materials are reviewed for privilege claims and that any privileged documents are returned to the attorney from whom they were seized.”  The most common way to do this is for the prosecutor’s office to create a “taint” team consisting of agents and lawyers not involved in the underlying investigation.  Sometimes prosecutors propose the creation of a taint team as part of the search warrant application in order to obtain a judicial endorsement of the procedure.  That team is instructed with respect to procedures for ensuring privileged material is not disclosed to the investigative team.  The taint team may contact counsel for the target attorney, provide copies of potentially privileged seized materials if the investigation would not be impeded by doing so, and ask counsel to provide the team with assistance or specifics as to which documents and communications are claimed to be privileged.  Where the taint team agrees with a privilege claim, the subject materials are returned to the attorney and the investigative team is denied access to them.  If there is a dispute concerning any privilege claims, counsel for the targeted attorney can seek immediate judicial relief under Rule 41(g) of the Federal Rules of Criminal Procedure; there is no requirement that the targeted attorney await indictment months or years later and then make a motion to suppress.

Special Masters’ Review

Prosecutors’ preference for the creation of taint teams has not gone unchallenged.  In April 2018, investigators executed a search warrant at the office of Michael Cohen, another of President Trump’s attorneys.  The Government sought to employ a taint team in connection with the review of the seized materials, but Mr. Cohen instead asked the court to appoint a special master to conduct the review. In opposition to Mr. Cohen’s application, prosecutors asserted that review by their “taint” team would be fair and efficient.  Although the court did not question the prosecutors’ integrity, it nonetheless granted Mr. Cohen’s application and appointed a special master to promote the “perception of fairness, not fairness itself.” In re the Matter of Search Warrants Executed on April 9, 2018, No. 18 MJ 3161 (S.D.N.Y. Apr. 16, 2018).

The next year, the Fourth Circuit criticized a taint team review of materials seized from a law firm, holding that it was “improper for several reasons, including that, inter alia, the [taint team’s] creation inappropriately assigned judicial functions to the executive branch, the [taint team] was approved in ex parte proceedings prior to the search and seizures, and the use of the [taint team] contravenes foundational principles that protect attorney-client relationships.”  In re Search Warrant Issued June 13, 2019, 942 F.3d 159, 164 (4th Cir. 2019).

So it comes as no surprise that, with respect to Mr. Giuliani’s search and seizure, the same office which prosecuted Mr. Cohen and defended the use of taint teams has now asked the court to appoint a special master to conduct the privilege review and to rule on the merits of any privilege claims Mr. Giuliani may make.  The prosecutors said that the use of their own “filter team” would safeguard applicable privileges, but nonetheless called appointment of a special master appropriate because of the “unusually sensitive privilege issues” involved and the need to promote the perception of fairness.  It may be that, in the future, government requests for special masters’ appointments may replace its previously expressed preference for use of taint teams.

Suppression Is the Remedy for Privilege Violations

Predictably, Mr. Giuliani has cried foul about the searches and seizures: “What they’re doing to me as a lawyer is unconscionable.”  Nonetheless, it is unlikely that any privilege violations that occurred during the searches would invalidate the seizure of non-privileged materials or prevent their use as evidence against him should he be indicted.  This is so because, except in an extraordinary case, the remedy for violation of the attorney-client privilege is suppression of the seized privileged information.  See Nat’l City Trading Corp. v. United States, 635 F.2d 1020, 1026 (2d Cir. 1980) (“To the extent that the files obtained . . . were privileged, the remedy is suppression and return of the documents in question, not invalidation of the search.”), cited in United States v. Schulte, No. S-2 17 Cr. 548, 2019 U.S. Dist. LEXIS 180889, at *5-6 (S.D.N.Y. Oct. 18, 2019) (denying motion to suppress allegedly privileged documents).  In addition, apparently uniform authority—albeit no Supreme Court precedent—holds that suppression generally is not required for evidence obtained from leads derived from improperly viewed privileged materials because evidentiary privileges are not constitutional rights.  See, e.g., United States v. Warshak, 631 F.3d 266, 294-95 (6th Cir. 2010) (finding no authority for proposition that “derivative evidence obtained as a result of improper access to materials covered by” the attorney-client privilege “is subject to suppression” and holding that “evidence derived from a violation of the attorney-client privilege is not fruit of the poisonous tree”).

Conclusion

It is simply wrong to assume that a lawyer’s files, hard copy or electronic, are somehow immune from seizure in a federal criminal investigation.  Federal prosecutors who scrupulously comply with the safeguards and procedures described in the Justice Manual can, and often do, obtain significant probative evidence as the result of the execution of search warrants on attorneys’ offices and homes while simultaneously avoiding violations of the attorney-client privilege and attorney work product doctrine. Although there is no remedy – other than internal DOJ discipline – for violation of the Justice Manual instructions and guidance, federal courts can and will act to ensure that valid attorney-client privilege and attorney work product claims are sustained and that prosecutors are denied the use of such confidential materials in a criminal prosecution. There is no reason to think that the materials seized from Mr. Giuliani’s office and home will be treated any differently.

[1] There are also special procedures in the Justice Manual about search warrants for documents held by an attorney who is not a target but rather a “disinterested third party.” See Justice Manual, at § 9-19.221.