When they take your electronics

Will Rudy catch a charge?
By Sam Patten | Apr 30, 2021

Within 24 hours of the FBI seizing electronics from former New York City Mayor Rudolph Giuliani, Russian authorities in Moscow detained one of that country’s top defense attorneys, Ivan Pavlov. Given that Pavlov represents imprisoned dissident Aleksei Navalny, it is harder to dismiss the connection than to examine it.

My own insight into the Giuliani matter stems from being charged and pleading guilty to the same offense, that news reports indicate is the center of the probe by the U.S. attorney for the Southern District of New York.

There are only a handful of Foreign Agent Registration Act prosecutions in U.S. legal history, I think I’m the ninth. In Giuliani’s case, the feds will have to prove “agency” in order to make a charge stick.

A few days after my sentencing in 2019, I attended a roundtable discussion on modernizing the FARA statute at the American Enterprise Institute in Washington. I asked the panel, which included an assistant attorney general, whether the law applied to think tanks that take money from foreign interests and promote their views.

Michael Flynn’s former attorney was also on the panel and told me the answer lay in the definition of “agency” — had think tanks taken clear instruction from the foreigners before promoting their views to high-level audiences in America’s capital?

Essentially, though, there was no clear answer to my question. That’s one of the problems with the FARA statute that a well-financed and legally savvy defendant could play to his advantage.

Did Rudy Giuliani advocate before the U.S. government on behalf of foreigners, and were his efforts to remove U.S. Ambassador to Ukraine Marie Yovanovich done to benefit Ukrainian officials?

If memory serves, Giuliani’s client at the time was then President Donald Trump. If he was also serving Ukrainian, or Russian, interests, at the same time, then he was double-dipping and is likely to be caught. But something tells me this case is not so simple.

This morning’s New York Times suggests that the “payment” need not necessarily be monetary, it could also have been “in-kind,” i.e., dirty laundry on First Son Hunter Biden, whose Ukrainian dealings Giuliani was investigating at the time. If this is the hook on which prosecutors aim to hang their case, it’s a pretty tenuous one.

But chances are they have something more solid; after all they got a judge to sign a search warrant for Giuliani’s phones and computers.

More than a year ago, New York Magazine ran a scathing profile on Giuliani in which the interviewer made a point of counting the number of phones he carried around with him. I thought that odd at the time, though in retrospect it makes more sense. Chances are the investigators know precisely what they’re looking for because SDNY, which Giuliani used to head, has become much more risk averse than it was during his mob-busting days.

Maybe Giuliani will challenge the law itself — it does have serious First Amendment problems — but doing so would require his first getting convicted.

Untangling questions of executive privilege will be another challenge for prosecutors. Giuliani has long walked a narrow line between client work and the law’s registration requirements.

Having been convicted of violating it myself, anything I write about what the law means should probably be taken with that it mind — be it validating or undermining. But I’m sure Giuliani knows what the law says and has a rationale for why it doesn’t apply to him.

According to his interview with Tucker Carlson after the raid, Giuliani said the agents who had come for “electronic devices” declined to take the Hunter Biden laptop he also had on his premises. Odd.

The Russian parallel was not intended to suggest Trump is a dissident, but rather to remind that other countries copy us. Russia passed its own foreign agent law and uses it to crack down on civil society (though Pavlov is charged with "sharing investigative details" which sounds Kafka-esque), and now they’re going after the lawyers of their targets. It’s unlikely Putin was waiting to see if Giuliani got popped before detaining Pavlov.

But the timing is still interesting.

Sam Patten is a recovering political consultant who was raised in Knox County and worked for Maine’s last three Republican senators.

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