Did Mueller illegally obtain emails sent by Trump's transition team?

A leftover from the weekend that deserves some attention, if only because I’m confused about it and hoping legal eagles will read this and set me straight. News broke on Saturday that Bob Mueller had obtained tens of thousands of emails sent by Trump’s transition team during the months between election day and the inauguration. Nothing unusual about that, right? That’s what discovery is for. But there’s a catch — Mueller got the emails from the General Services Administration, the government agency responsible for facilitating presidential transitions, not from Team Trump’s lawyers. It was GSA that hosted the transition email system, notes Axios, replete with a government email address (ptt.gov). Why would Mueller go to a third party for copies of the emails instead of going to Team Trump itself? Can he do that?

No, claimed a lawyer for the transition team, or at least not without a warrant. At some point GSA handed over the emails to Mueller with no notice to Team Trump; apparently Trump and his allies figured out that Mueller had the emails only when his staff started bringing them up during interviews. What’s more, the lawyer for the transition team suggested that some emails might be covered by attorney-client privilege. If Mueller had followed usual procedure, by demanding copies of the emails from Team Trump instead, Trump’s lawyers could have withheld or redacted the privileged ones and turned the rest over. As it is, by going through GSA, Mueller apparently has *everything.* Mueller’s office would say only in its defense that whenever it obtains emails, “we have secured either the account owner’s consent or appropriate criminal process.” Hmmmm.

Who’s right? Did Mueller get a warrant for the emails from GSA or did GSA just hand them over to Mueller, violating Team Trump’s privacy? A GSA lawyer, Lenny Loewentritt, told BuzzFeed that everything was on the up and up here for a simple reason: Team Trump was told explicitly that it had no privacy interest in any transition materials.

The letter [from Trump’s transition team] also makes a specific claim about communication between the government and the campaign — that Richard Beckler, then the general counsel of the GSA, “acknowledged unequivocally to [the Trump campaign’s] legal counsel” in a June 15 discussion that the Trump campaign “owned and controlled” emails, and that “any requests for the production of PTT [Presidential Transition Team] records would therefore be routed to legal counsel for [the Trump campaign].”…

“Beckler never made that commitment,” [Loewentritt] said of the claim that any requests for transition records would be routed to the Trump campaign’s counsel…

Loewentritt read to BuzzFeed News a series of agreements that anyone had to agree to when using GSA materials during the transition, including that there could be monitoring and auditing of devices and that, “Therefore, no expectation of privacy can be assumed.”

Anything on the ptt.gov server would, presumably, be government property and available in the national archives, including the ostensibly privileged material. If Team Trump knew all along that their communications wouldn’t be private then no warrant is needed. There’s no privilege because there’s no expectation of confidentiality. The communications are basically public information.

But wait. That’s not how GSA rules typically work, argues Jonathan Turley:

Indeed, there are a host of special rules reaffirming the special status of transition teams and their work product. While the GSA is tasked with supplying space and equipment for transition officials, the National Archives has expressly maintained that the “materials that [presidential transition team] members create or receive are not federal or presidential records, but are considered private materials.” For this reason, under agreements with transition teams, the GSA has agreed to delete “all data on [computing] devices” used by transition officials and staff.

When Mueller’s people found out that the transition records were not yet deleted, they demanded their surrender despite the fact that Trump officials claimed that the material held privileged information that belonged to the transition team and is subject to protection from discovery.

Transition teams are strange creatures legally since they’re sorta public, sorta private. Their job is to help the president-elect prepare to take power smoothly, giving them a quasi-governmental function, but until Trump is sworn in everyone on the team is still a private citizen. If Turley is right that the rules of the national archives categorize transition materials as private then the argument that the privileged emails are public information and therefore disclosable without a warrant collapses. It’s possible, I suppose, that Loewentritt is right and that Team Trump agreed to deviate from those rules by having all transition materials treated as publicly accessible instead, but that would be a weird thing for them to agree to. Why let the public, not to mention prosecutors, rummage through your communications without a warrant when the default rule, per the archives, is to treat the material as private?

Who’s right and who’s wrong? Was Mueller entitled to obtain the emails, including the allegedly privileged ones, without a warrant? Former federal prosecutor Renato Mariotti says yes. He allows that it’s odd that Mueller would go to GSA for the emails when he could have gotten them from Trump’s own lawyers. But there may be a reason for that:

Mueller may have two copies of the emails, the complete set from GSA and the redacted set given to him by Team Trump with privileged communications withheld. Maybe he has reason to believe that Team Trump is claiming privilege to hide emails that aren’t actually privileged, which would be a major clusterfark for the president and his allies. But what if some emails really are privileged and they’re now in Mueller’s possession? Doesn’t that violate a potential defendant’s privacy rights, creating a Fourth Amendment problem? Sure, says Mariotti, potentially — but prosecutors deals with that issue all the time and have a solution for it.

Huh. Excluding a privileged email at trial that made it past the “taint team” is fine but it still would have ended up in Team Mueller’s hands and potentially informed key lines of questioning during interviews with Trump’s deputies. That’s what Turley’s concerned about: If Mueller’s basing any part of the investigation on evidence that turns out to have been obtained in violation of the Fourth Amendment, all sorts of derivative evidence might need to be thrown out too as “fruit of the poisonous tree.” There could be a cascade effect in which some suspects go free because evidence against them that was produced via questioning based on privileged emails needs to be excluded.

It’s hard to believe Mueller and his team of experts would take that chance. Which means either (a) they feel confident for whatever reason that it was legal for GSA to hand over the emails without a warrant or … (b) they actually got a warrant. And if they got a warrant, uh oh:

A warrant would mean probable cause exists. For which crime? By whom? Note that Mike Flynn was apparently one of the people whose emails were part of the batch obtained by Mueller.

What do you think, legal eagles? On which side is the balance of legal authority here? Mariotti believes the letter from the Trump transition lawyer is less a legal argument than a political one, aimed at Trump fans to convince them that Mueller is playing increasingly dirty pool in his “witch hunt.”

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