Southern District Judge Richard Berman, in the second Curcio hearing on Thursday, continued to discuss potential conflicts of interest presented by Turkish gold-trader Reza Zarrab’s retention of former New York City Mayor Rudolph Giuliani and former U.S. Attorney General Michael Mukasey. 74 year old federal judge, at the end, could not conclude which way to go and asked for additional information from the defense.
Giuliani and Mukasey met with Turkey’s president, Recep Tayyip Erdogan earlier this year, and in their affidavits said they intend to find a diplomatic solution to the case outside court.
Judge Berman opened session mentioning that in reviewing the transcripts of the last meeting, he noticed some inconsistencies that go to the “heart of the case.” In particular, Judge Berman focused on three big issues: if the Greenberg Traurig’s representation of the Government of Turkey is an actual waivable conflict, whether or not Giuliani and Mukasey’s discussions with US officials could be privileged, and who they were representing during the deliberations with the US officials, Turkish Government or Mr. Zarrab.
During the court session, Judge Berman said that the issue of who is looking for Mr. Zarrab’s interest during formal meetings is not resolved and needs to be explained. Mr. Giuliani’s firm, Greenberg Traurig, is a registered agent of Turkey. Mr. Mukasey is not lobbying for Turkey, but his affidavit states that despite being retained by Mr. Zarrab he does not intend to appear before the court on his behalf.
Reza Zarrab’s attorney Mr. Brafman, referring to this fact said that “Mr. Mukasey is not an agent and Mr. Giuliani has never represented Turkey anywhere before.” Brafman explained that Messrs Giuliani and Mukasey were only retained to find a “diplomatic solution” to the matter that is “beneficial to” Mr.Zarrab. To which, the judge questioned Guiliani and Mukasey’s affidavit which said they were looking for a solution beneficial to US interests as well. Brafman, unfazed said there is no conflict since the resolution they seek will be beneficial to US and Turkey as well as help Zarrab too.
Defense: Giuliani’s role is unique, no comparison in the history
Brafman also added that they could not find a similar case or rule and this situation is unique to this case, which the judge concurred.
The other question that the judge posed was related to attorney-client privilege, Assistant U.S. Attorney Sidhardha Kamaraju answered saying Giuliani and Mukasey cannot claim attorney-client privilege over their negotiations because they are not representing Zarrab in court for the criminal charges. Mr. Brafman opined that their relation to Zarrab exceeds their relation to the Republic of Turkey because Mr. Zarrab has an actual criminal case pending, adding that Mr. Zarrab is unlikely to raise the issue post-hearing because “he is the one who created those relations.”
Zarrab’s courtroom lawyer, Brafman said the lawyers could claim a work-product privilege that gives them a measure of secrecy which Judge Berman acknowledged, but questioned who represented the Republic of Turkey and US to claim a ‘work-product privilege.’ Brafman suggested a hypothetical that the work-product privilege could be cited if the lawyers speak with “the president of the United States or the president of Turkey.”
The Turkish President, Recep Tayyip Erdogan and President Donald Trump is set to meet next week in Washington.
Confused? Even Judge Berman was. He asked for further documents and additional information to figure out this unprecedented Curcio hearing.