Rudy Giuliani secured a dubious distinction earlier this month when he became the second known ex-U.S. attorney for the Southern District of New York to face investigation by his former office.
The news followed a succession of incriminating allegations against Giuliani. The sources of these leaks are not public, but the information behind them comes from the U.S. Attorney’s office, where Giuliani himself introduced the media leak as one of the most devastating tools in a prosecutor’s arsenal.
The fact that Giuliani — who has advocated a distinct brand of lawlessness as President Donald Trump’s TV lawyer — merits the attention of federal investigators only emphasizes the through-the-looking-glass quality of Attorney General William Barr’s Department of Justice. The only other Southern District U.S. Attorney to be implicated in a potential crime by his own office was Morton S. Robson, who was accused of receiving a bribe from Roy Cohn to drop a case. (The prosecutor was never charged and Cohn was acquitted.)
More recently, New York City’s most famous former mayor has provided the president legal advocacy that suggests a contempt for the laws he once enforced. There was the time he said that alleged campaign finance violations are “not a big crime” because “nobody got robbed. Nobody got killed.” Or when he confessed Trump’s role in a conspiracy that involved “funneling” $130,000 through a law firm to pay off Stormy Daniels, the porn star with whom Trump allegedly had an affair. Or the times he floated pardons for Michael Cohen and Paul Manafort.
Indeed, Giuliani’s entire post-government life has provided a case study in ethical adventurism, if not actual criminal conduct. Among the many clients for whom he did political consulting was Peruvian presidential candidate Keiko Fujimori, whose father, a previous Peruvian president, was convicted of ordering the extrajudicial execution of 15 people. Fujimori lost both her campaigns for the presidency; she was named in the Panama Papers as a client of Mossack Fonseca, the law firm at the center of the document leak, and accused of funding her political career through money laundering and bribes.
Giuliani also consulted for Aleksandar Vucic, a mayoral candidate in Belgrade, Serbia, who once served as the information minister to accused war criminal Slobodan Milosevic. Vucic eventually won the Serbian presidency and the Trump White House sent a delegation to attend his inauguration. Last year, Vucic’s political party opened an office on the site of Staro Sajmiste, a concentration and extermination camp run by the Nazis during their World War II occupation of Belgrade. (In 1989, a Holocaust survivor charged by Giuliani’s prosecutors was placed opposite a blackboard inside the U.S. Attorney’s office with the slogan “arbeit macht frei.” The man was acquitted, and the judge in the case did not find evidence of Giuliani’s involvement in what the suspect described as an effort to pressure him to cooperate with federal investigators.)
Giuliani’s post-government work eventually brought him into direct conflict with Southern District prosecutors when he represented Reza Zarrab, an Iranian-Turkish gold trader charged with evading U.S. sanctions. The case raised immediate diplomatic issues, with Turkish President Recep Tayyip Erdogan pressing both the Obama and Trump administrations to release Zarrab. Giuliani did not intend to appear for his client at trial, according to his co-counsel; his role was to pursue an outside resolution to the case. That ultimately involved Trump seeking to enlist then-Secretary of State Rex Tillerson to ask the Justice Department to drop charges against Zarrab, as Bloomberg first reported last week. To break that down: Giuliani sought help for a Turkish-backed client accused of violating Iranian sanctions from a president who has a one-word policy for dealing with Tehran: sanctions. In the end, Zarrab pleaded guilty. After Erdogan embarrassed Trump last week by attacking Kurdish-held northern Syria, the Southern District announced new charges against a Turkish state-owned bank connected to the gold trader.
But it was Giuliani’s work in Ukraine that crossed whatever invisible line had existed between the former U.S. attorney and federal investigators in the Southern District and placed him at the center of the House impeachment inquiry. The rapidly unspooling narrative connects Giuliani to efforts to dig up dirt on Hunter Biden, presidential candidate Joe Biden’s son, as well as, oust former U.S. Ambassador to Ukraine Marie Yovanovitch, a career diplomat. Yovanovitch testified before the House earlier this month that “individuals who have been named in the press as contacts of Mr. Giuliani may well have believed that their personal financial ambitions were stymied by our anti-corruption policy in Ukraine.”
She was presumably referring to Lev Parnas and Igor Fruman, who were recently indicted on the very same charges that Giuliani once called “not a big crime”: campaign finance violations stemming from their alleged efforts to funnel foreign cash into U.S. campaign coffers. Giuliani acknowledged receiving $500,000 in payments from a company called Fraud Guarantee, where Parnas serves as CEO. Federal investigators have also subpoenaed former Rep. Pete Sessions, R-Texas, for information related to his involvement with Giuliani. Sessions reportedly received a campaign contribution from the Ukrainians and shortly after meeting the men, sent a letter to Secretary of State Mike Pompeo calling for Yovanovitch to be removed from her post. Giuliani, for his part, defied a subpoena from House investigators working the impeachment inquiry.
The volume and speed of the revelations about Giuliani can be daunting to follow. Yet it is worth considering the source. In the Southern District, authorized releases of information on the target of a criminal investigation make for reliable plot points in high-profile cases. It is somewhat ironic that Giuliani now finds himself on the opposite end of such leaks. When he served as Manhattan’s top prosecutor, he changed the tight-lipped culture of the office to one that actively shapes the narrative surrounding investigations. He made such frequent use of fortuitous leaks that judges repeatedly admonished him for talking to the media. As U.S. attorney, Giuliani’s use of the media soured the environment to such an extent that the judge overseeing Giuliani’s final prosecution — of Bronx Democratic boss Stanley Friedman and others as part of a bribery and fraud scandal involving the Parking Violations Bureau — moved the trial to New Haven because of the publicity surrounding it. When former FBI Director James Comey worked under Giuliani as a junior prosecutor in the 1990s, he learned quickly that “the most dangerous place in New York is between Rudy and a microphone.”
Giuliani’s reliance on leaks didn’t stop when he left the Justice Department. In the days leading up to the 2016 election, he relied on leaks originating from the FBI that agents had discovered emails relevant to the Hillary Clinton investigation on Anthony Weiner’s laptop. Those leaks prompted an inquiry by the Justice Department inspector general.
But the leaks surrounding Giuliani’s conduct have so far prompted an incurious response. There is little discussion of their origins or what’s driving them. Former Southern District prosecutors have achieved something of regulatory capture on cable news, podcasts, and in print. Networks rely on these former civil servants to interpret each revelation emanating from their former office’s work in real time. These are some of the same pundits whose laudatory and uncritical appraisal of special counsel Robert Mueller’s capabilities as a federal prosecutor failed to probe the limits of his authority under Justice Department policy, his decision not to depose the president, or the shortcomings of his performance before Congress.
The U.S. Attorney’s Office for the Southern District now faces challenges to be seen as impartial. Many of the line prosecutors in the office served under Preet Bharara, who has emerged as a vocal critic of both Trump and Giuliani. And the office won a conviction against Michael Cohen, demonstrating that one way to adhere to Justice Department policy against charging a sitting president is by pursuing his attorney instead. The office recently filed — and lost — a motion to protect Trump’s tax returns from a state subpoena. Many Southern District alumni expressed outrage, saying that the decision to do so marked a fatal breach of the office’s storied independence. But if you read the fine print, you saw that no attorneys from the Southern District signed the filing.
Federal judges in the Southern District may not fare much better when it comes to being viewed as impartial with regard to Giuliani. When Comey briefly held Giuliani’s job as U.S. attorney, he found that “Rudy’s demeanor left a trail of resentment among the dozens of federal judges in Manhattan, many of whom had worked in that U.S. Attorney’s office.”
If the investigation into Giuliani does take on an outwardly political character, he may ultimately bear historical responsibility for politicizing the prosecutorial culture in the Southern District. The capstone of his tenure as a federal prosecutor was a targeted attack on corruption in the city’s Democratic machine, which many saw as the overture to his political career. Neither Giuliani nor the U.S. Attorney’s office responded to requests for comment.
Giuliani closed his final trial with an appeal to the jury that resonates today.
“The people who know best about what was going on inside a cesspool of corruption like this one are the people who were wallowing in it,” he said. “If you don’t get your evidence from them, it keeps going on and on and on, and this kind of corruption will never end.”
How we view data is critical to how to regulate its use. In Privacyland right now, the “data as property” argument is bubbling up frequently. In a comprehensive piece for CNET, David Priest argues that “treating your data like property would be terrible.” (Opinion contributor Sarah Jeong argued similarly here in July.) He also offers a potential explanation for Yang’s not answering my question:
Yang’s actual policy suggestions don’t treat data like property. He proposes the rights for you to be informed of data collection and use, to opt outOne of two central concepts of choice (the other, opt in). It means an individual’s lack of action implies that a choice has been made; unless, say, an individual checks or unchecks a box, his or her information will be shared with third parties. Glossary, to be told if a website has data on you, to be “forgotten,” to be informed if your data changes hands, to be informed of data breachesThe unauthorized acquisition of data that compromises the security, confidentiality or integrity of personal information maintained by a data collector. Glossary and to download all your data to transfer it elsewhere.
Priest suggests maybe Yang is just using the wrong language. “Yang is correct that we have a claim” to our data, he writes. “The question we should all keep asking and attempting to answer is, ‘How can we make that claim?’”
At One Zero, Will Oremus examines the idea of how much our privacy is really worth and concludes that “it’s probably fruitless to try to pinpoint with a single number the value of privacy.” He suggests that a better frame may be to look at privacy like a human right, which he defines as “something everyone deserves, whether they fully grasp its value or not.”
Or how about another metaphor? A number of data dividend advocates argue that “data is the new oil,” meaning that tech companies extract our personal information, much like oil companies extract the natural resource from the ground. Their data dividend idea is somewhat based on Alaska’s Permanent Fund, which pays out a yearly sum ($1,606 in 2019) to eligible state residents based on oil revenues. In our interview, Yang used this phrase, too.
I think “data is the new oil” misses the point slightly. But the environmental metaphor — especially pollution — is a helpful model. In an interview, a former Federal Trade CommissionThe United States' primary consumer protection agency, the F.T.C. collects complaints about companies, business practices and identity theft under the F.T.C. Act and other laws. The agency brings actions under Section 5 of the F.T.C. Act, which prohibits unfair and deceptive trade practices. Glossary chief technology officer, Ashkan Soltani, suggested a solution for data similar to a carbon tax for clean air. His analogy of choice was logging:
A long time ago logging entities discovered and harvested a resource at scale before anyone else and one of their advantages was the ability to pollute. But it was only after some time that people said, “wait, that’s my land, too” and mandated that they either needed to be able to restrict the ability to use it or have some sort of retribution in the form of a tax or carbon credit.
Pollution is also a handy way to think about why our data ought to be kept safe by default. As Oremus put it, “It’s a bit like being asked how much you’d be willing to pay for your drinking water to be kept poison-free.”
No wonder we’re all fed up.
[If you’re online — and, well, you are — chances are someone is using your information. We’ll tell you what you can do about it. Sign up for our limited-run newsletter.]
I’ve devoted two of these columns to the Equifax data breach settlement — why it’s a raw deal and what you could do in protest. But I hadn’t really understood just how egregious the company’s data security practices were until last Friday, when Jane Lytvynenko at BuzzFeed News first shared some snippets from the class-action suit from last January.
I went through the whole document, which alleges that Equifax “failed to take some of the most basic precautions to protect its computer systems from hackers.”
The secretive Justice Department inquiry into the Trump-Russia investigation's origins now includes former CIA Director John Brennan, former Director of National Intelligence James Clapper, former FBI special agent Peter Strzok, and British ex-spy Christopher Steele.
U.S. Attorney John Durham, whose investigative portfolio recently expanded to include events from the launch of the probe in 2016 through the appointment of special counsel Robert Mueller in 2017, has taken overseas fact-finding trips. But Durham's focus on the actions taken by specific individuals makes his mission look like it could transform into a criminal investigation. And the line of questioning Durham has taken with potential witnesses — some in line with claims made by President Trump and other Republicans — puts his efforts into sharper focus.
Brennan, a strident Trump critic, told NBC News that Durham wants to interview him and Clapper as Durham looks into the intelligence community's actions as it examined possible ties between the Trump campaign and the Kremlin. Brennan and Clapper led the Obama administration's intelligence agencies when some Republicans allege the CIA illicitly ensnared members of the Trump campaign using informants, though Democrats have dismissed this. Brennan and Clapper played leadership roles in the intelligence community’s assessment of Russian election interference in 2016.
Brennan told NBC News he was “very comfortable with everything” he had done and complained he didn’t know what the inquiry’s legal basis was, calling Durham’s actions “bizarre.”
But Durham's actions aren't out of left field. Attorney General William Barr upset Democrats in April when he said “spying did occur” on the Trump campaign, and President Trump gave Barr “full and complete authority to declassify information” related to the origins of the Trump-Russia inquiry in May. Barr selected Durham to be his right-hand man soon after.
Durham also asked about Strzok both writing and signing the documentation which launched the FBI's Trump-Russia counterintelligence investigation in late July 2016 and launching the investigation over a weekend, an unusual series of actions. The New York Times cited former officials who defended the now-fired special agent, saying he spoke with leaders at the FBI before opening the investigation and did so on a Sunday because former FBI Deputy Director Andrew McCabe instructed him to quickly fly to London to speak with two Australian diplomats who provided the information that prompted the investigation.
Australian diplomat Alexander Downer tipped off the bureau that Trump campaign foreign policy adviser George Papadopoulos told him the Russians had damaging information on Hillary Clinton. Papadopoulos was allegedly told about this Russian “dirt” by the mysterious Maltese academic Joseph Mifsud, whom Mueller said had ties to the Russian government, but whom some Republicans claim has ties to Western intelligence. Downer was prompted to tell the FBI about his conversation with Papadopoulos by Wikileaks' release of Democratic National Committee emails.
Durham is speaking to witnesses about Steele, the former MI6 agent whose dossier was used to obtain secret surveillance warrants against Trump campaign associate Carter Page, and Durham wants to know why the FBI used unverified information in its filings with the Foreign Intelligence Surveillance Court, according to the New York Times. Sources reportedly said Durham expressed skepticism about the use of Steele’s dossier and worried the FBI exaggerated Steele’s importance to obtain the Foreign Intelligence Surveillance Act warrants.
The 412 pages of redacted FISA documents released in 2018 show the DOJ and FBI made extensive use of Steele's salacious dossier. The opposition research firm Fusion GPS was hired by Clinton's campaign and the DNC through the Perkins Coie law firm, and Fusion GPS then hired Steele. Clinton’s campaign received briefings about Fusion GPS's findings during 2016, and watchdog groups allege the campaign purposely concealed its actions from the Federal Election Commission. Steele’s Democratic benefactors, his desire for Trump to lose to Clinton, and flaws with his dossier weren’t revealed to the FISA Court.
DOJ Inspector General Michael Horowitz’s investigation into FISA abuse wrapped up in September, and the New York Times reported Horowitz reviewed an assessment that MI6 handed over to the FBI which said the former spy “was honest and persistent but sometimes showed questionable judgment in pursuing targets that others viewed as a waste of time.” Horowitz’s report is expected in the coming days.
Durham also intends to interview CIA analysts and officials involved in the Russia investigation, prompting some to seek legal representation, and NBC News reported tension between the CIA and DOJ over what classified information he should have access to. Durham has already talked to two dozen current and former FBI agents as part of his effort, according to the New York Times.
DOJ spokeswoman Kerri Kupec said DOJ was exploring the extent to which “a number of countries” played a role in the Trump-Russia investigation, and Barr and Durham reached out to the United Kingdom, Italy, and Australia. DOJ has taken efforts to distance itself from the actions of Trump lawyer Rudy Giuliani, whose endeavors in Ukraine are a central focus of the House Democrats’ impeachment inquiry and whose associates, Lev Parnas and Igor Fruman, were arrested in New York.