With the presidential election fewer than 90 days away, federal prosecutors in New York face a narrowing window in which to take overt steps — including bring charges — in their investigation of Rudy Giuliani, President Donald Trump’s personal attorney, and his Soviet-born associates.
Since early last year, prosecutors with the US attorney’s office in Manhattan have been investigating Giuliani along with businessmen Lev Parnas and Igor Fruman in connection with their efforts to oust the then-US ambassador to Ukraine and initiate investigations by the country into Trump’s Democratic presidential rival Joe Biden and his son Hunter.
In October 2019, prosecutors brought charges against Parnas, Fruman and two other associates, indicting them in an alleged campaign-finance scheme involving donations to a pro-Trump super PAC. They have pleaded not guilty.
The investigation expanded into Giuliani. Prosecutors sent subpoenas to political donors and fundraisers asking about any business dealings they had with the former New York City mayor or his firm Giuliani Partners.
The sprawling investigation into all of the men, however, was upended by the coronavirus pandemic, limiting prosecutors’ ability to interview witnesses, collect further evidence, and meet with the grand jury. Now, with the presidential election approaching, prosecutors must decide, if they believe there is evidence of a crime, to bring charges or wait until after the election to avoid a so-called October surprise.
While prosecutors privately indicated as recently as April that they intended to bring additional charges against Parnas and Fruman by the end of July, which CNN has reported, that timeline expired last week. And in recent discussions with at least one defense counsel, prosecutors provided no update on the timing of additional charges, according to a person familiar with the matter.
The investigation received renewed attention in late June when Geoffrey Berman, the former US attorney for Manhattan, was ousted from his post, and public scrutiny centered on whether his dismissal was linked to his office’s pursuit of those close to Trump.
Meanwhile, Justice Department guidelines and longstanding practices discourage prosecutors from bringing a politically sensitive case — such as any that might involve a sitting President’s personal attorney — in close proximity to an election. In New York in recent years, federal prosecutors have charged similarly politically sensitive cases no later than August of an election year.
In Giuliani’s case, while he has been under scrutiny for months, he has not had any contact with prosecutors, according to his attorney. That is not uncommon for a target of an investigation but, for a prospective defendant like Giuliani, a former Manhattan US attorney himself, it is likely he would be informed of possible charges and given a chance to make his case to prosecutors before they make a final decision.
“We have had no contact at all, nor do I suspect we’ll have any contact with federal prosecutors,” Robert Costello, an attorney for Giuliani, told CNN. “We don’t have any reason to believe that anybody is really actively looking at Rudolph Giuliani for having done anything wrong, because he hasn’t done anything wrong.”
A spokesman for the US attorney’s office in Manhattan declined to comment.
Covid caused delays
Still, the inquiry involving Giuliani, Parnas, Fruman and their associates appears to have remained active in recent months, following some delays due to the coronavirus pandemic.
Prosecutors and FBI agents interviewed multiple witnesses in February and March as the pandemic was taking hold in New York. By April, however, prosecutors asked the judge overseeing the case to postpone the October trial date for Parnas and Fruman until next year. The trial is now set for February 1.
They noted their timeline on bringing charges had been pushed back by the pandemic’s impact on their ability to interview witnesses and convene a grand jury. At the time, they privately told lawyers for the men that they anticipated they would bring new charges by the end of July.
By June, according to two people familiar with the matter, the investigation picked up again, with prosecutors and FBI agents actively interviewing witnesses as part of their investigation concerning Giuliani, Parnas and Fruman. The people familiar with the matter said prosecutors’ questions appeared to relate more to the conduct of Parnas and Fruman and matters that were charged in their original indictment — including a marijuana business venture and donations the two made to Republican candidates and a pro-Trump super PAC as an alleged effort to spread their influence — than they did to Giuliani.
And in recent weeks, grand juries have reconvened in New York, including in White Plains, which is part of the Manhattan US Attorney’s office jurisdiction. For example, earlier this month, a White Plains grand jury issued an indictment charging Ghislaine Maxwell, a former girlfriend and associate of Jeffrey Epstein, with recruiting, grooming and ultimately sexually abusing girls, some as young as 14. She has pleaded not guilty.
As part of their investigation, prosecutors have continued to inquire about Parnas’s Florida-based company Fraud Guarantee, which paid Giuliani $500,000 in 2018, these people said, and while CNN has reported that prosecutors have weighed additional charges in conjunction with the company, it isn’t clear that those charges would be filed against Giuliani.
Giuliani is more directly under scrutiny for his efforts to remove the US ambassador to Ukraine, according to people familiar with the investigation, who say a charge could be brought as a violation of foreign lobbying laws. Any charges under that statute, known as the Foreign Agents Registration Act, or FARA, would require the approval of the national security division in Washington, operating under Attorney General William Barr.
In July, following his dismissal, Berman told lawmakers he was concerned that his removal — and an initial decision by Barr to replace him with an attorney from outside the office with no prosecutorial experience — was an effort to disrupt or delay investigations. Berman, who didn’t cite specific investigations of concern, was ultimately replaced by his deputy Audrey Strauss, a well-respected attorney. There is no indication that investigations have been impacted.
During a hearing before the House Judiciary Committee last week, Barr was quizzed on Berman’s firing and whether he interfered in any investigations in the office.
“Number one, anyone familiar with the Department of Justice would say that removing a component head is not going to have an impact on a pending investigation,” Barr said in defending the move.
He added, “I have not interfered in any investigation. I’ve raised questions on occasion about certain matters, but as far as I’m aware, the office was satisfied with the resolution.”
Impact of the election
Even with prosecutors’ continued scrutiny of Giuliani, Parnas and Fruman, however, the clock is ticking toward the presidential election period, when prosecutors are less likely to bring charges.
Justice Department memorandums advise prosecutors against bringing any cases or taking any overt investigative steps with the purpose of impacting an election or providing an advantage or disadvantage to either candidate.
Current and former Justice Department officials say there is an unwritten rule that extends that policy to within 60 days of an election.
In Giuliani’s case, some observers say there is no rush for the US attorney’s office in Manhattan to bring a case before the election. If prosecutors believe they have evidence of a crime, they will have remaining time under the statute of limitations after the election cycle.
Other lawyers have suggested the outcome of the election could influence the timing of any case. If prosecutors believe they have evidence of a crime and Trump loses re-election, they could delay announcing charges until January, after Trump leaves office, removing the possibility that he might pardon an ally.
If prosecutors were to move toward charging Giuliani, protocol dictates that they would brief senior Justice Department officials, likely including Barr, in advance of making such an announcement. Prosecutors with the US Attorney’s office in Manhattan initially briefed Barr on the investigation concerning Parnas, Fruman and Giuliani early last year, shortly after Barr was sworn in.
The sensitivity of charging decisions and investigative steps with respect to elections has been a source of tension for the Justice Department, particularly in recent years.
Days before the 2016 presidential election, then-FBI Director James Comey sent a letter to Congress concerning the reopening of an investigation involving Democratic nominee Hilary Clinton’s emails.
The Justice Department’s Inspector General later criticized Comey’s decision, saying his “description of his choice as being between ‘two doors,’ one labeled ‘speak’ and one labeled ‘conceal,’ was a false dichotomy. The two doors were actually labeled ‘follow policy/practice’ and ‘depart from policy/practice.'”
Prosecutors in the Manhattan office have recently been faced with similar issues concerning charging decisions in advance of elections.
In 2018, the year of the congressional midterm elections, the office charged two politically sensitive cases in August: one against Michael Cohen, Trump’s former personal attorney, and another against Chris Collins, then a Republican congressman and early Trump supporter who was up for reelection that year.
In both cases, prosecutors made their charging decisions with the elections in mind.
Cohen pleaded guilty that August and is serving a prison sentence in home confinement. Collins, who won his reelection while under indictment, initially pleaded not guilty, but later changed his plea and resigned his seat. Collins was sentenced to 26 months in prison, but has yet to report because of the pandemic.