Garland’s Partisan War on Civil Liberties

With approximately every third breath he takes, Attorney General Merrick Garland tells us he cares, really cares, about civil liberties. But this professedly staunch defender of the Constitution has blown a very big hole in its protections for anyone within several degrees of separation from a certain former president. 

Garland’s latest depredation is his approval of unethical searches of respected, reputable, and experienced D.C. criminal defense lawyer Victoria Toensing. Toensing is a 79-year-old former federal prosecutor, whose law partner and husband is Joseph diGenova, the D.C. United States Attorney under Ronald Reagan. The two have represented an enviable client list of D.C.’s most prominent political and public figures. 

Due to their sterling reputations, President Trump was set to hire them for his “Russiagate” defense, but Mueller’s weak assertion of a “conflict” led them to go overboard to hew to ethics, even those tenuously claimed. Toensing, in short, has never been close to unethical. 

She has won professional accolades too numerous to mention, along with a reputation and prosperity she would not risk. She has never been sanctioned or disciplined in her long, successful, highly ethical career. Yet Garland, through his aggressive Southern District of New York U.S. attorney, has treated her in a manner befitting a criminal enemy terrorist. 

No one has accused her of a crime, but she did have confidential talks about representing certain Ukrainian citizens, who, it may be inferred, had information about Biden-centric Ukrainian corruption. Garland’s motive? He hopes to nail Rudy Giuliani on a tendentious charge under the Foreign Agents Registration Act before Giuliani and allies nail a Biden. 

To understand how Garland is not just chilling, but freezing, Toensing’s and her clients’ civil liberties in the process, let us provide background. 

The Justice Department is investigating Giuliani for the vague, ethereal crime of violating FARA, even though he represented no foreign government or official. Rather, he learned from Ukraine prosecutors about a partisan, perhaps ethically compromised, U.S. Ambassador to Ukraine, Marie Yovanovitch.

Before Trump was elected in 2016, Ukraine “point man” Vice President Biden recommended Yovanovitch for the Ukraine post, with strong support from Democratic moneyman George Soros. Hunter Biden’s corrupt client Igor Kolomoisky was fleeing the country in 2016 after fleecing foreign aid, which had been backed by the elder Biden, for around $5.6 billion, and, amazingly, left unprosecuted for years prior to Trump’s election. 

Yovanovitch had protected $4.4 million in foreign aid that was diverted from the prosecutor general’s office to a private “anti-corruption” organization, AntAc, supported by Soros, a heavy investor in Ukraine. Then she issued an oral “do not prosecute” list which included officials of AntAc and Burisma, Hunter Biden’s corrupt oligarchic client. She then refused visas to the present and former Prosecutors General to travel to the United States to complain of Biden-centric corruption.

After Giuliani uncovered all of this as he defended the president on Russiagate, Trump removed Yovanovitch as ambassador. That is Giuliani’s supposed FARA crime, suggesting an action primarily to help America, not to lobby for Ukraine citizens who may want the same action.

By way of comparison, James Comey earlier had gained information from foreign officials, including five Russian intelligence agents or Kremlin higher-ups, as well as an ex-British spy, whose patron was a Russian oligarch, in order to destroy his boss, President Trump. It would seem that Giuliani’s helping Trump through his foreign contacts, unlike Comey’s spying and sabotage through his, would not be a crime. But not according to Garland.

Now to Toensing. With several Ukrainians seeking her services to report corruption to the Justice Department, the Biden officials likely wanted confidential, privileged information she had gained, hopefully to use against Giuliani. 

The problem for Garland was that most, or perhaps all, of what Toensing would have learned would be likely privileged. Communications with potential clients, their agents, and parties with joint legal interests are all privileged, precisely why Garland did not follow the written Justice Department guidelines which he is in charge of enforcing. If he were ethical, he would have received none of the privileged information Toensing had received from prosecutors with whom she had been conferring to represent.

The Justice Department’s Justice Manual Sec. 9-13.420 (A) recognizes the civil liberties encroachment when information is sought from a lawyer, and therefore requires that the “least intrusive” method be used. This means prosecutors should seek the information from “other sources,” or “through the issuance of a subpoena” encouraging “the participation of the attorney-subject” in the “document review process,” when an attorney-client privilege is raised. See Sec. 9-13.420 (F). But Garland ignored his own guidelines and approved a search warrant, raided her home, took her iPhone and downloaded all of it. 

The government obtained this information without her prior review for potentially privileged information, instead using its own prosecutors without knowledge of who was a client, to review the documents for privilege. Yes, the wolf was assigned to guard the henhouse. It did not seem to bother Garland that the Southern District had already abusively obtained much privileged communication from 2019 covert searches of Toensing’s Google and Apple iCloud information, without her knowledge or opportunity to review, even after seizure.

The normal and ethical process would have been to subpoena Toensing, listing the categories of documents sought, then allowing Toensing to object to irrelevant requests, to provide a log of privileged communications (“privilege log”), and to produce what she believes to have been relevant, non-privileged materials. Then a special master or judge would examine any disputed communications in camera and rule as to whether Toensing had validly claimed a privilege. This is the Justice Department’s required, ethical, and Constitutional procedure, designed to protect the rights of clients to privileged communications with counsel, a basic civil liberty. 

The government of course did not do that. Instead, it obtained search warrants based on a still-sealed affidavit Toensing has not been allowed to see, gaining information before she had a chance to object. In order to get such warrants, the government customarily must prove that a non-target like Toensing is likely to tamper with evidence or manipulate witnesses, or is a flight risk likely to flee the country. 

It therefore must be inferred that in its covert affidavits, the government averred through someone testifying under penalty of perjury, that Toensing was a “flight risk” and would be inclined to “tamper” with evidence or “manipulate” witnesses. Without these averments under penalty of perjury, no court would have approved these covert search warrants. 

Of course, there is not the slightest hint that Toensing is a flight risk. She is 79, not 29, and she has a husband in D.C., not a boyfriend in Belarus. She has a home in D.C. and a vacation home in Maryland, and is unlikely to abandon those to the government in order to illegally help a potential client who never retained her. 

Is there any slight indication that this highly ethical lawyer would “tamper” with evidence? Perhaps an unethical prosecutor might consider asserting attorney-client privilege to be “tampering,” but honest prosecutors do not. Moreover, such an objection does not destroy evidence, but merely maintains it for the court to review. 

The warrant affidavits remain covert, but other government filings suggest that both of these averments—tampering or manipulation and “flight risk”—were actually made. Any of these assertions would be what ordinary people without law degrees would call “a lie.” So in seeking a fictitious FARA violation on Giuliani, did the government lie in order to spy on Toensing’s confidential, privileged information to which it otherwise had no right?

We do not know for certain. But if it quacks like a duck, waddles like a duck and flies like a duck, just maybe it’s a duck. And just maybe the attorney general and his partisan prosecutors are violating Toensing’s and her clients’ constitutional rights—all, of course, to deny Giuliani his.

Yes, American citizens should rest assured that Merrick Garland, who approved all of this, will protect their civil liberties. So long, of course, as they have nothing to do with investigating Biden corruption in Ukraine.

About John D. O'Connor

John D. O’Connor is a former federal prosecutor and the San Francisco attorney who represented W. Mark Felt during his revelation as Deep Throat in 2005. O’Connor is the author of Postgate: How the Washington Post Betrayed Deep Throat, Covered Up Watergate, and Began Today’s Partisan Advocacy Journalism.

Photo: Andrew Harnik, Pool/via Getty Images

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