I have been a long critic of Rudy Giuliani going back years, including interviews and press conferences that I have condemned for making unsupported statements (as well as comments inimical to his client’s interest). However, Giuliani may have a valid point.  The Biden Administration sent FBI agents to raid his home and other lawyers to seize “electronic devices.” According to Giuliani, this included computers and cell phones containing electronic files. However, the agents reportedly refused to take hard drives that Giuliani said contained material related to Hunter Biden, the son of our President. If the warrant did call for the seizure of computer and electronic devices, that makes no sense at all, particularly in accepting the word of the target of the search as to the contents of the devices.  As a defense attorney, I often question the scope of seizures in such searches as excessive or overly broad. I have never run into a search where agents refused to take evidence that is ordinarily defined within the scope of the warrant. We have yet to see the warrant itself but this is a curious omission given the seizure of computers.

Giuliani was on “Tucker Carlson Tonight” Thursday and described the search of his home at 6 am by seven FBI agents. He said that the agents seized laptops and cell phones in what is believed to be an investigation into the possible violation of the Foreign Agent Registration Act (FARA). That itself is notable since, until a few years ago, FARA violations were rarely prosecuted criminally and most violations were treater as civil or administrative measures.

Giuliani denied such violations: “I never represented a Ukrainian national or official before the United States government. I’ve declined it several times. I’ve had contracts in countries like Ukraine. In the contract is a clause that says I will not engage in lobbying or foreign representation. I don’t do it because I felt it would be too compromising.”

However, it is this statement that stuck out for me:

“At the end of the search, when they had taken about, I would say, seven or eight electronic items of mine … they weren’t taking the three hard drives, which of course, are electronic devices. They just mimic the computer. I said, ‘Well, don’t you want these?’ And they said, ‘What are they? I said, ‘Those are Hunter Biden’s hard drives. And they said ‘no, no, no.”

On one hand, the FBI could argue that they already have that evidence because the laptop was previously seized. However, how do they know that hard drives contained the same information? The search warrant was premised on the claim that Giuliani was a risk for evidence destruction. Yet, the agents took his word for what was on the devices? For all the agents knew, Giuliani could have taken all of his incriminating FARA evidence and just slapped a “Hunter Biden Stuff” label on the outside.

Another explanation could be that the search warrant was narrowly written. The Justice Department could exclude hard drives out of concern for privileged communications. However, I have not seen that type of limitations in prior searches.  In prior cases, the Justice Department minimizes such searches through filtering teams as opposed to leaving some storage devices.  It would also make no sense since the current cellphones or laptops may not have records from the critical period. Moreover, the agents could claim that the search warrant is limited to Giuliani’s records, not those of clients or third parties. However, how would they know what was on the hard drives?

It is also possible that the FBI could say that Giuliani is lying and there was no such hard drives offered. Yet, if that were the case, one would expect the agents to return for the claimed hard drives missed in the prior search.

I have previously written about the Hunter Biden laptop and the virtual news blackout of the story, including the strikingly reluctant coverage after the release of his book. I frankly do not see why the FBI would reluctant to have this evidence since it is likely duplicative of evidence already held by prosecutors. I am not assuming that this was an effort to protect Biden.  I am just honestly confused by the decision of the agents if this warrant did call for the seizure of electronic devices and material.

Giuliani, who earned well-deserved fame as a mob prosecutor, recounted “I said, ‘Are you sure you don’t want them? I mean the warrant required them to take it. ‘No, no, no.’ One last time, I said, ‘Don’t you think you should take it?’ And they said, ‘No.'” Giuliani added: “But they relied on me, the man who had to be raided in the morning, because — I’m going to destroy the evidence? I’ve known about this for two years, Tucker. I could have destroyed the evidence. The evidence is exculpatory. It proves the president and I and all of us are innocent. They are the ones who are committing — it’s like projection. They are committing the crimes.”

This was an extraordinary search targeting the counsel to the former president.  There were reportedly disagreements in the Justice Department on whether to seek the warrant.  Yet, the Justice Department convinced a judge that there was electronic evidence and records that had to be seized to prevent destruction and to use on a possible prosecution.

The Justice Department has emphasized the need to acquire hard drives in its training manuals, including the publication Searching and Seizing Computers And Obtaining Electronic Evidence in Criminal Investigations:

The typical computer user thinks of the contents of a hard drive in terms of what the computer’s user interface chooses to reveal: files, folders, and applications, all neatly arranged and self-contained. This, however, is merely an abstraction presented to make the computer easier to use. That abstraction hides the evidence of computer usage that modern operating systems leave on hard drives. As computers run, they leave evidence on the hard drive— considerably more evidence than just the files visible to users. Remnants of whole or partially deleted files can still remain on the drive. Portions of files that were edited away also might remain. “Metadata” and other artifacts left by the computer can reveal information about what files have recently been accessed, when a file was created and edited, and sometimes even how it was edited.

The Justice Department defines terms like “records” to expressly include hard drives. It encourages the following language:

The terms “records” and “information” include all of the foregoing items of evidence in whatever form and by whatever means they may have been created or stored, including any form of computer or electronic storage (such as hard disks or other media that can store data); any handmade form (such as writing, drawing, painting); any mechanical form (such as printing or typing); and any photographic form (such as microfilm, microfiche, prints, slides, negatives, videotapes, motion pictures, photocopies).

This is why I am confused by this account. I waited to see if there was an obvious explanation and perhaps there is one that I am missing. I just find the account perplexing.

We will have to wait to see if this is truly just about a single possible violation of FARA.  However, we should be able to see the warrant and the FBI should be able to explain why it would not take electronic storage devices or why it would take the word of the target on their content.