On Wednesday morning, federal authorities executed a search warrant at the Manhattan apartment on Madison Avenue owned and occupied by former New York Mayor Rudy Giuliani. Authorities also executed a warrant to search Mr. Giulian’s Park Avenue office at the same time.
Whether the search itself was legal would depend on the exact nature of the facts that, at this point, are simply speculation. But the first thing that jumps out is that while it isn’t illegal for prosecutors to execute a warrant to search the office and personal home of a high-profile lawyer, it is highly unusual.
We all might remember a similarly unusual case a few years ago in Manhattan — that of former President Trump’s other personal lawyer, Michael Cohen. For those interested in a deeper dive into the events surrounding the Cohen search and seizure, here is an excellent episode of a legal podcast.
As regards searches and seizures, the Fourth Amendment clearly states that:
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
For a federal search warrant to be issued against Mr. Giuliani, according to Justice Department guidelines, it would have needed to be approved at the highest level of the DOJ. And, of course, the search itself would have also needed to align with the dictates of the Constitution.
Generally, with such high-level search warrants, absent some other compelling reason (often political — more on that in a minute) prosecutors ought to take the least intrusive approach.
Before asking the appropriate authorities for a home search warrant of a high-profile lawyer and public figure (again, the former mayor of New York City who was seen by the world after 9/11 as an international hero) prosecutors should consider other means and sources to secure the information sought in the home search and seizure.
As to these compelling reasons, in several key searches and seizures over the past couple of years (Roger Stone, Michael Cohen, and today, Rudy Giuliani) it has been argued that authorities did not in fact take the least intrusive path, but acted as they did to send a political message and to create political theater.
News television likes few things more than a premises search and seizure of a lionized political figure now placed into the role of a villain.
But, again, this is conjecture at this point, as the public may not be privy to the exact details provided to DOJ leadership that led to the issuance of the warrant.
We also don’t know and may never know whether the search warrant was drawn with sufficient narrowness to meet the legal requirement that any review of privileged information (again, Mr. Giuliani is a lawyer) be minimized.
What is always interesting in searches and seizures such as this is how information begins to leak out. All of the major news outlets on the day of the event received information from government sources under an agreement for anonymity.
While this is actually not exceptional in itself, the opaque nature of the circumstances is the perfect breeding ground for stories to take on a life of their own, further distanced from reality with each passing day.
As we do not yet know the exact nature of the search against Mr. Giuliani, we have little basis for an educated guess as to exactly what was being searched for and why.
When details of such high-profile searches are uncovered, as they were in the Roger Stone case, it always makes for educational and enlightening reading.
Whether Wednesday’s events are a form of political persecution, as Mr. Giuliani’s camp has already said it may be, or the natural progression of a well-structured legal case remains to be seen in the weeks and months ahead.
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