Giuliani case: unless the govt knows *significantly* different facts from what is being & has been historically reported about Giuliani’s dealings in Ukraine, I see little to no facts to support probable cause for a FARA violation & therefore to execute a search warrant. /1
This case looks extremely suspect to me. FARA is a technical statute aimed at specific conduct. It is seldom prosecuted criminally. DOJ has been trying to expand it in recent years, (not just against political figures) as Is typical of agencies looking to self-expand. /2
WaPo’s article about it today, e.g., was tellingly devoid of facts that would actually constitute a violation of the statute. It reads like it was somehow illegal to try to investigate the Ukraine/Biden/Burisma/Yovanovitch issues, which it wasn’t, under FARA or otherwise. /3
It’s certainly possible that Giuliani could violate FARA, but the facts put forward publicly to support the allegation don’t add up to the actual elements of the offense. /4
Who is the foreign client for whom Rudy is supposedly trying to affect US policy? If he’s repping Trump, his client isn’t foreign. What US policy is he trying to influence? If it’s to get the investigation of Biden, how is that on behalf of Ukranians? /5
If he’s trying to get the *Ukranians* to investigate Biden, how is that influencing US policy? Was he lobbying State Dept & Trump to get rid of Ambassador Yovanovitch *on behalf of* Ukraine or Ukranians? It was reported that was because he didn’t think she was loyal to Trump. /6
Just mixing together foreigners, US policy & a client in some kind of combination doesn’t create a FARA violation. The statute requires disclosure that you’re representing foreigners in such a way that you’re influencing US policy through contact w/a federal agency or official./7
If Rudy has foreign (Ukranian) clients, okay, what US policy is he trying to influence by contacting a federal agency or official on those clients’ behalf? That is the relevant inquiry. /8
Investigating foreign conduct, including with help from foreign persons, on behalf of a US client, even if the goal is to influence US policy, is NOT a violation of FARA. Because the client is not foreign. /9
And doing things for your US client that also happen to benefit or align with the interests of foreigners isn’t a FARA violation either if you don’t represent those foreigners. /10
It is possible to be covered by FARA w/o directly lobbying the govt. This is one thing that makes it separate from the Lobbying Disclosure Act, another statute. One FARA section basically applies to things like trying to influence US political opinions/views generally. /11
But you still have to be doing the influencing or “political activities” (yet another section) *on behalf of* a foreign client. /12
A couple other things bother me about the case. First: FARA is almost always handled non-criminally. Why is this one being handled criminally? Especially where the target is a lawyer, has counsel, & has previously offered to talk to investigators. That smells. /13
Second, the NY Times article makes it seem like the govt is looking for evidence of the client relationship. But the govt has already indicted some of the Ukrainians in a separate case, so it almost certainly has their records, files, devices, etc. The evidence wasn’t there? /14
The link to the journalist John Solomon is a problem too. Why is the govt seeking communications with a journalist via the search warrant? There are some definite eyebrow raising aspects to this search. /15
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