The high-profile federal criminal investigation of Rudy Giuliani in recent days has zeroed in on evidence that in the spring of 2019 three Ukrainian government prosecutors agreed to award contracts, valued in the hundreds of thousands of dollars, to Giuliani and two other American attorneys as a way to gain political and personal influence with the Trump administration.
Federal investigators believe Giuliani and two attorneys who worked closely with him, Victoria Toensing and Joe DiGenova, probably violated federal transparency laws that require Americans working for foreign governments or interests to register as foreign agents with the US justice department and fully disclose details of each such action they undertook on behalf of the foreign interests.
Federal prosecutors in the southern district in New York have compiled a list of more than two dozen specific acts by Giuliani, Toesning and DiGenova as to how to advance the personal and political interests of a group of Ukrainian prosecutors and political factions in Ukraine with which they were aligned, the Guardian has learned.
Prosecutors consider each one of those acts to be crucial evidence of a potential violation of law, according to sources close to the investigation.
In a previously undisclosed episode, the Guardian has learned that federal investigators have uncovered extensive, detailed plans devised by one Ukrainian prosecutor, Yuriy Lutsenko, and approved by Giuliani, by which they would announce and promote an investigation of Joe Biden and his son Hunter, in Ukraine, to help boost Trump’s chances of re-election.
Investigators as early as last year obtained emails received and sent by Lutsenko describing various elements of the scheme, according to sources close to the investigation.
Trump and conservative news outlets from 2019 until the present day have made baseless allegations, since thoroughly debunked, that Joe Biden as vice-president pressured Ukraine to fire its prosecutor general for investigating a Ukrainian energy company, Burisma, upon whose board Hunter Biden sat. Trump claimed, without evidence, that Biden sought the firing of the prosecutor so his son would escape scrutiny. Trump hoped to make the allegations a centerpiece of his 2020 re-election campaign.
As part of that effort, Lutsenko, the then prosecutor general of Ukraine, analogous to the attorney general in the US, agreed to publicly announce a criminal investigation in Ukraine of Joe Biden and Hunter. Lutsenko simultaneously had been a driving force to award Giuliani, Toensing and DiGenova the hundreds of thousands of dollars in legal retainers and contracts, according to the same sources described above.
Only the unexpected election of a new president, Volodymyr Zelensky, with whom the plotting Ukrainian prosecutors had little or no influence, led them to abandon their plan – although only briefly. That’s because Trump was obsessed with getting it back on track as soon as possible.
To that end, in July 2019, Trump made his now infamous “perfect” phone call to Zelensky – at the time he was withholding almost $400m in military aid to Ukraine – to pressure the new Ukrainian president to announce he was investigating the Bidens. The disclosure of Giuliani’s shadow diplomacy and Trump’s phone call with Zelensky led directly to Trump becoming only the third US president to face impeachment.
Federal investigators have obtained documents and witness statements detailing how the three Ukrainian prosecutors would, at Giuliani’s behest, help Trump and Giuliani promote the Biden-Ukraine allegations, even if they had had no truth, according to people close to the investigation.
First, Lutsenko would publicly declare that he was reopening a long dormant investigation of Burisma, and that the Bidens were under investigation as part of the broader inquiry. A deputy of Lutsenko, Konstantin Kulyk, would take charge of the portion of the investigation that focused on the Bidens, and publicly verify any allegations of wrongdoing on their part. Finally, Viktor Shokin, a former prosecutor general of Ukraine, who had previously investigated Burisma, agreed to allege publicly that Biden had fired him to quash an investigation of Burisma he had conducted years earlier.
Lutsenko and the others were so eager to gain influence in the Trump White House, through Giuliani, that they decided they could garner even greater access if they arranged for Giuliani’s personal enrichment. Even though Giuliani was engaged by then president Trump as his personal attorney, Trump did not pay him, a frustration that Giuliani expressed to the Ukrainians.
Giuliani and Lutsenko reached a preliminary agreement in March 2019 between Giuliani and the Ukrainian ministry of justice and the Republic of Ukraine to assist Ukraine in recovering money in overseas bank accounts Lutsenko said was owed to his government. Various drafts of the contract called for Giuliani to receive either $300,000 or $500,000 for his work.
Then, acting on Giuliani’s strong recommendation, Lutsenko, Kulyk and Shokin agreed to pay two lawyers close to Giuliani, Toensing and DiGenova, at least $250,000 to represent them as a means to publicize their various allegations about Hunter Biden and Burisma.
The husband-wife legal team of Toensing and DiGenova are decades-long friends of Giuliani and ardent supporters of Donald Trump. Like Giuliani and Trump, they have espoused various conspiracy theories that an amorphous and malign “deep state” had plotted against Trump to destroy him and his presidency.
Along with Giuliani, Toensing and DiGenova are under federal criminal investigation by the United States attorney for the southern district of New York.
On 12 April 2019, Toensing and DiGenova sent a draft retainer agreement to Lutsenko and Kulyk, agreeing to represent both men and to help uncover “evidence of illegal conduct in Ukraine regarding the United States” – an apparent reference to the allegations about the Bidens. The contract called on Lutsenko and Kulyk to pay a $125,000 retainer.
Three days later, on 15 April, Toensing and DiGenova sent a similar retainer agreement to Shokin, agreeing to represent him “for the purpose of collecting evidence regarding his March 2016 firing as prosecutor general of Ukraine and the role of then vice-president Joe Biden in such firing, and presenting such evidence to US and foreign authorities”. That contract called for Shokin to pay the lawyers a $125,000 retainer.
But a week later, their plans were suddenly upended: on 21 April, Ukraine overwhelmingly elected Zelensky as president.
Lutsenko had been appointed prosecutor general by the outgoing Ukrainian president Petro Poroshenko. It was unclear whether Lutsenko would remain as prosecutor general under Zelensky.
Moreover, it was unlikely that a Zelensky regime would allow for a contract between Giuliani and the Ukrainian ministry of justice to move ahead. Giuliani has since claimed that he decided not to proceed with the contract because he began to have ethical qualms about representing Trump and the Ukrainians at the same time. In reality, Lutsenko probably did not have the influence or authority to award Giuliani the contracts.
Meanwhile, Toensing and DiGenova had additional reservations about signing retainer agreements with the three Ukrainian prosecutors.
Toensing and DiGenova feared that if they moved forward with their representation, they would have to abide by a federal transparency law known as the Foreign Agents Registration Act, or Fara, which requires Americans who provide legal, political or public relations advice to foreign governments or foreign political interests to register with the US justice department as foreign agents, and to disclose to the public in great detail everything they do on behalf of their foreign clients.
The draft retainer agreements between Toensing and DiGenova and the Ukrainians demonstrate that compliance with Fara was clearly on their mind.
The draft contracts for all three stated: “Client acknowledges that he has been advised that the firm’s services may entail services subject to the mandatory disclosure under United States law. In particular, the Foreign Agents Registration Act … requires the firm to register [as a foreign agent] and report some of its activities on behalf of particular political parties or entities.”
Toensing and DiGenova did not want to register as foreign agents, investigators believe. After all, if the two high-powered attorneys officially acknowledged they were acting as agents of Ukrainian political interests, they would find it harder to appear on Fox News and other media venues, thereby making it more difficult to promote Trump’s various conspiracy theories regarding Ukraine.
Federal investigators also have reviewed records and questioned witnesses regarding an instance in which Toensing had registered as a foreign agent: Toensing previously represented the Kurdistan Democratic party, the largest political party in Iraqi Kurdistan, and the party’s representatives in the United States and Canada. That 2017 representation might prove to be powerful evidence for prosecutors if they were to charge Toensing, because it demonstrates both her familiarity and experience with Fara.
Another incentive for Toensing, DiGenova and Giuliani to avoid registering as foreign agents was that their work required greater secrecy. Although Poroshenko, the outgoing president, was willing to go along with backing an investigation of the Bidens, the new Zelensky regime, knowing there was no factual basis which might serve as a foundation for such an investigation, was refusing to proceed.
That’s when Trump and Giuliani engaged in their campaign to force Zelensky to announce such an investigation by withholding the $400m in military aid.
Still wanting to aid Trump and Giuliani, but not wanting to have to publicly disclose details of their activities, Toensing and DiGenova moved forward with providing much the same services to the three Ukrainians, but now without a formal retainer letter and no longer seeking to be paid for their services, witnesses have told federal investigators.
Tessa Capeloto, a Washington-based attorney who has counseled clients on Fara matters for more than a decade, says that providing services to a foreign client for free or not executing a formal contract does not excuse lawyers from registering as a foreign agent and disclosing their activities to the public, in almost all such instances.
“Even if services are provided on a pro-bono basis, a Fara registration requirement can still result,” Capeloto said in an interview. “Nor is it the case that a formal contract or other formal relationship with a foreign principal is needed to satisfy agency under the statute.”
Federal prosecutors have identified more than two dozen specific acts by Giuliani, Toensing and DiGenova, the non-disclosure of which they believe constitutes evidence of Fara violations.
These include everything from attempting to obtain a visa for Shokin to visit the United States when it was being held up at the state department, to having Trump fire a US ambassador to Ukraine who the Ukrainian prosecutors considered an adversary, to DiGenova amplifying their story on Fox News.
Giuliani, through his attorney, Bob Costello, declined to comment for this story.
But Giuliani has previously said that he could not have violated the federal agents registration law because he was acting on behalf of Trump in his dealings with the Ukrainians, telling the New York Times: “It would be kind of ridiculous to say that I was doing [anything] on Lutsenko’s behalf when I was representing the president of the United States.”
Underscoring the seriousness of the criminal investigation, during the early morning hours of 29 April, FBI agents executed search warrants at Giuliani’s Madison Avenue apartment and his Park Avenue office in Manhattan, confiscating his cellphones and other electronic devices. Almost simultaneously, FBI agents executed a second search warrant at Toensing’s suburban Washington home.
Papers unsealed in federal court in the southern district of New York on 28 September shed further light on the investigation. They described materials federal prosecutors have sought, including “retainer agreements with any Ukrainian national including former prosecutor general Yuriy Lutsenko” and “evidence of knowledge of Fara laws”.
A source who has seen the search warrant for Giuliani says it also listed some 12 people investigators were seeking information on. Those include all three of the Ukrainian prosecutors: Lutsenko, Shokin and Kulyk. The search warrant also sought any records in Giuliani’s possession relevant to his communications with Toensing and DiGenova.