In the end, Mueller would have gotten whatever files he was entitled to review, and Trump’s counsel would have been permitted to withhold anything that was truly privileged. My sense is that the privilege claims posited this weekend by TFA’s lawyer are extravagant. Trump was not president yet, so the suggestion that the transition files are covered by some extension of executive privilege is dubious. Even if GSA did violate an understanding with TFA to alert TFA to any requests for PTT records rather than surrendering them, that would be of little moment with respect to any records Mueller was lawfully entitled to demand.
The Washington Post’s report seeks to debunk the TFA privilege claims by relying on the analysis of Randall Eliason, a law professor and former prosecutor. Professor Eliason contends that the Trump transition people had no expectation of privacy because they were using government communication facilities and their email addresses ended in “.gov.” Respectfully, I don’t see how that bears on whether there were emails subject to attorney-client and deliberative-process privileges, which the government itself claims all the time in refusing to disclose information. Still, I doubt these privileges, to the extent they obtain at all, cover the PTT materials as extensively as the TFA lawyer suggests. My beef with Mueller’s request is less technical than practical: Most of the thousands of files he has obtained and is poring over have utterly nothing to do with his investigation. To grab thousands of electronic records was overkill, just as the investigation, for the most part, is overkill.