“The government considers it appropriate for the court to appoint a special master to make privilege provisions for material seized under warrants,” Attorney General Audrey Strauss wrote in a letter sent last week to the United States. District Court Judge Paul Oetken. The letter was not sealed by the court on Tuesday.
Prosecutors appear to have written to Oetken because he is overseeing a criminal case in which two employees of Giuliani face charges of campaign financing and fraud. Giuliani is not charged.
The letter was sent Thursday, a day after Giuliani̵
During a special master trial, a respected lawyer – often a retired judge or judge – often oversees the sifting of emails, text messages, photos, audio and video files to determine what is covered by the ruling. The Special Master could also assess whether such records are covered by attorney-client privilege or other protection that attorneys have for their records.
The indictment in Giuliani’s case appears to embrace a special master overseeing the privilege, but not the sorting of which posts respond. Giuliani, Trump or other Giuliani clients could ask Oetken to extend the special council’s responsibilities.
Giuliani’s lawyer, Robert Costello, declined to comment Tuesday.
When the FBI raided Trump attorney Michael Cohen in 2018, prosecutors said the appointment of a special master was “neither required nor appropriate.” Lawyers from the U.S. Attorney’s Office in Manhattan said instead that they planned to rely on a “strict filter protocol” to ensure no privileged or unresponsive records reached investigators. This approach is sometimes also referred to as a “taint team”, which then passes on records that those who pursue the investigation are deemed to have the right to see.
After attorneys for Cohen and Trump filed lawsuits in an attempt to block this process, U.S. District Court Judge Kimba Wood decided to have the sorting and review oversight of an independent third party: retired Judge Barbara Jones.
Wood agreed to appoint a special master after saying it could reinforce the “perception of justice” in the high-profile case, although prosecutors in the Giuliani case stressed in their letter to Oetken that she also said that the appointment was not necessary to ensure “justice in itself.”
Woods decision seemed influenced by the fact that Trump, the Trump Organization and Cohen agreed to bear the cost of the audit.
It was not immediately clear who would pay for a particular master in the Giuliani case, or whether Trump would participate through his lawyers. A spokesman for Trump, Jason Miller, did not respond to a request for comment.
In the end, more than 4 million items were crawled by the Cohen searches in a process that took several months.
Recent developments follow a ruling last year by a Richmond, U.S.-based federal appellate court in an unrelated case. A panel at this court rejected the Department of Justice’s use of a dirty team of government agents to sort and categorize materials seized from a law firm in Baltimore.
Five days before the change of administration in January, the Ministry of Justice asked for the full bench for the 4th Circuits to practice the case. The court rejected later that month. That left the decision in place and set a precedent, but one that now only governs in Maryland, Virginia, West Virginia and the Carolinas.