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Mueller tactics and staffing “have created the appearance that this is not an up-and-up investigation”

Mueller tactics and staffing “have created the appearance that this is not an up-and-up investigation”

My interview in light of Mueller obtaining transition documents on the sly: “the Special Counsel’s office has created a taint”

I appeared on the Tony Katz Show on December 19, 2017, to talk about the Robert Mueller investigation and the dust-up over Trump transition emails obtained surreptitiously by Mueller.

I covered the dispute in a prior post, Trump Transition Team Lawyer: Mueller improperly grabbed tens of thousands of transition docs.

The key document telling the story is the letter to Congress from the Trump transition team (Trump for America – TFA), a copy of which is here.

That document alleges in great detail that Mueller obtained from the General Services Administration (GSA) thousands of TFA documents, including emails. TFA was a legally distinct entity operating under statutes and regulations that have applied to prior transition teams. In the normal course, such transition records would be destroyed since they are not considered government records.

However, according to TFA, before that routine document destruction happened, the records were requested by a congressional committee, and the GSA was asked to preserve the records for review by TFA lawyers prior to being produced. TFA asserts that the GSA agreed to this procedure, but when the GSA transition person in charge was hospitalized, Mueller’s team approached GSA and requested the documents without any legal process (e.g. warrant or subpoena) and without anyone notifying the lawyers for TFA.

GSA complied with the Mueller request without telling the TFA lawyers, much less allowing them to conduct a review of the documents to determine if there were any privilege or other legal objections to assert.

From the TFA letter:

It is our understanding that Mr. Beckler was hospitalized and incapacitated in August 2017. Notwithstanding Mr. Beckler’s June 16, 2017 instruction to the Special Counsel’s Office concerning the ownership and control of PTT records, the Special Counsel’s Office, through the Federal Bureau of Investigation (“FBI”), sent to the GSA two requests for the production of PTT materials while Mr. Beckler was hospitalized and unable to supervise legal matters for the GSA. Specifically, on August 23, 2017, the FBI sent a letter (i.e., not a subpoena) to career GSA staff requesting copies of the emails, laptops, cell phones, and other materials associated with nine PTT members responsible for national security and policy matters. On August 30, 2017, the FBI sent a letter (again, not a subpoena) to career GSA staff requesting such materials for four additional senior PTT members.

Career GSA staff, working with Mr. Loewentritt and at the direction of the FBI, immediately produced all the materials requested by the Special Counsel’s Office – without notifying TFA or filtering or redacting privileged material. The materials produced by the GSA to the Special Counsel’s Office therefore included materials protected by the attorney-client privilege, the deliberative process privilege, and the presidential communications privilege. It is our understanding that Mr. Beckler passed away without returning to the GSA, and that career GSA staff (including Mr. Loewentritt) never consulted with or informed Mr. Beckler
or his successor of the unauthorized production of PTT materials.

TFA says it did not find out about the document production until very recently, when some of the documents were used in questioning witnesses. Hence the TFA letter to Congress complaining that the records were obtained improperly.

Mueller’s response , through a spokesman, was short:

“When we have obtained emails in the course of our ongoing criminal investigation, we have secured either the account owner’s consent or appropriate criminal process.”

Mueller appears to be arguing that the account owner was GSA, and since GSA consented, that’s the end of the legal story. In a Buzzfeed report, a senior lawyer at GSA also denied the agreement to allow RFA to review the documents, or that anything improper took place.

So was it “illegal” or improper to do what Mueller did?

Law Professor Jonathan Turley writes that it may be a gray area that comes back to haunt Mueller, Mueller makes reckless move with seizure of Trump transition emails:

Mueller did an end run around Trump transition officials and counsel by seizing tens of thousands of emails from the GSA despite claims of privilege. The move was legally unprecedented and strategically reckless. In a gratuitous muscle play, Mueller may have added a potential complication to the use of evidence that could contaminate much of his investigation in any later trial.

For those familiar with Mueller, the blunt-force approach taken toward the GSA is something of a signature of Mueller and his heavy-handed associates like Andrew Weissmann….

It is important to note that Mueller’s move takes his investigation into uncertain legal territory and may ultimately create some new law in his favor. Then again it might not. The question is why Mueller would take the risk. At issue are records held on computers and devices like mobile phones and iPads from the Trump transition team. Transition teams have long held an ambiguous position in our government. They are necessary to ensure the smooth transfer of power in the selection of new appointees and the development of policies. However, since they work before the inauguration for a president-elect, they are not considered an “agency” for the purposes of federal law.

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….

This could ultimately fall into the category of being careful what you ask for. Once again, the Mueller team showed little hesitation or circumspection in plowing into this controversial area. It is the same attitude that led to the reversals of Weissmann at the cost of millions (and ruined lives) in failed prosecutions. If the evidence was improperly seized, it could contaminate later evidence derived from it in a “fruit of the poisonous tree” theory. Mueller would not be the first to face such a cascading problem of contamination.

Alan Dershowitz agrees with this assessment:

Trey Gowdy, a former prosecutor, says let the Courts sort it out:

Gowdy told CNN he’s not interested in weighing in on the Trump transition team’s complaint that Mueller “unlawfully” obtained its emails.

But Gowdy, a former federal prosecutor, said he’s generally inclined to side with prosecutors trying to obtain information. And he argued that it’s a court matter, unless Congress wants to pass a law to deal with presidential transitions.

“My bias is what you’d expect of a prosecutor who has spent most of his life trying to get information,” Gowdy said. “Ultimately, there’s only really one opinion that matters, and that’s the trial judge who hears the motion.”

I agree with Gowdy that a court should have sorted it out — BEFORE the records were turned over.

The TFA lawyers should have been put on notice, and they could have sought court intervention if they felt it was warranted, to permit them to review and contest the production of records. Or Mueller could have sought a court-ordered warrant or subpoena, which does not appear to have happened in the case of the TFA documents held by GSA; at least a judge would have performed some level of review, or decided to let TFA be heard.

I explained my view of how this has contributed to the taint surrounding the Mueller investigation in my interview with Tony.

Here are some excerpts (audio at bottom of post):

“[GSA] just gave them to Mueller. Really quite astounding, turned over these records that have long been recognized as private to the Special [Counsel]. Whether that was a violation of the law is where we get into the gray area, because the General Services Administration is disputing that there was a promise to let the Trump transition team lawyers review them, etcetera. Whether there’s a 4th Amendment issue, Mueller’s position presumably is going to be, we didn’t seize anything, we just asked somebody for them, and they gave them to us.”

* * *

“This just goes to the bad faith of it. Why wouldn’t you notify the transition team that you’re requesting their records? Why didn’t General Services Administration at least let them know, hey, we have this request from Robert Mueller, we know we’re supposed to clear things with you, what do you want us to do, maybe we need to get a court to decide this. That would have been the appropriate way of going about it so that the transition team’s expectations of confidentiality — a lot of people are talking about “privacy,” I’m not sure that’s the right term — but certainly these are supposed to be confidential records, private records.

It’s as if Mueller went to a bank, and not using legal process, not getting a judicial search warrant, not serving a subpoena on notice to the other party, just went to your bank and said, “Hey, we would like all of [your] bank records, would you please give them to us,” and your bank said “sure, why not,” and we’re not even going to tell [you].

That is just such bad faith, and it gets to what I think is the bigger issue here. These are the sort of tactics that the lawyers who are staffing the Mueller [team] are notorious for. They’re notorious for pushing the limit, they’ve had convictions, high profile convictions overturned because of their tactics ….

This is just another cloud on the Mueller investigation. He has staffed his team with anti-Trump people, he has staffed his team with Clinton donors, Hillary Clinton donors, and now we’re finding out he’s using tactics, whether or not they’re illegal, certainly are underhanded and not the sort of thing you would expect from someone who truly is interested in getting to the truth, as opposed to someone who just wants a conviction.”

* * *

Q: 30 seconds or less … Would you fire Robert Mueller?

A: I don’t think I can give you a 30-second [answer]. I think that he never should have been appointed, I don’t think they met the statutory standards. I think he has a personal conflict of interest because one of the key witnesses is James Comey, his longtime and close friend. I don’t think you should be investigating cases in which your friend is a witness. So I don’t know what I would do.

All I do know is that I think the Special Counsel’s office has created a taint. Whether it’s a taint which ends up actually damaging the investigation or whether it’s just the appearance of a taint, they certainly have created the appearance that this is not an up-and-up investigation.”

(If player doesn’t load, click here)

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Comments

Mueller’s performance is unflattering, to say the least.

Jacobson your legal analysis is good, but I think you’re missing the reason this is, for Mueller, a great move.

It’s a great move if you approach it from the perspective that Mueller’s goal IS NOT actual legal prosecution of Trump that will result in a conviction. His goal is to simply find anything that reflects badly enough on Trump to serve as cover for the Democrats to impeach him.

Mueller’s goal is to find information that he can leak to the press to provide Democrats political cover to impeach Trump. He DOESN’T CARE if he can actually successfully prosecute him.

    tom_swift in reply to Olinser. | December 19, 2017 at 8:49 pm

    Mueller’s goal is to find information that he can leak to the press to provide Democrats political cover to impeach Trump.

    If that’s the plan, why bother hunting for something? Just make something up. The press will be happy with it, no matter how ridiculous.

    They could get Gloria Allred on it. Not too good on results, but makes a lot of noise.

      Olinser in reply to tom_swift. | December 19, 2017 at 9:25 pm

      Were you asleep this past year? They (Democrats, not Mueller himself) ALREADY TRIED to just make stuff up by releasing that ludicrous pissgate document. The problem is they failed so spectacularly that they created the impression that anything they come up with has to be proven true or will be disregarded.

      Enter Mueller. These documents are REAL, they were just obtained illegally. Mueller doesn’t care if he can’t use them at trial. There’s never going to be any trial. He’ll just leak them to Schumer and they’re going to try and impeach him in mid-2018.

    iconotastic in reply to Olinser. | December 19, 2017 at 8:55 pm

    Impeachment would be the ideal outcome. But there are other desirable outcomes: crippling the Trump presidency for the next 3 years, making Trump effectively a lame duck; smearing the administration sufficiently to swing a million voters so another socialist swamp creature can be elected in 2020; or frightening all Trump cabinet members and staff sufficiently to paralyze the administration.

    I am certain you can think of more desirable (from a leftist perspective) outcomes from another 2 years of witch hunting by Mueller.

      mailman in reply to iconotastic. | December 20, 2017 at 7:24 am

      I think all of these are in play for Democrats. The pity for them is that in spite of all their work to undermine the Trump Presidency he is actually not only doing extremely well BUT exceeding all expectations and levels set by previous Presidents.

    Write your own blog. While I agree, Mueller’s job seems to be “Anything that harms Trump”, why denigrate your “Host” on his own website? Make your comment without the dismissive comment towards Jacobsen. Good grief….

DouglasJBender | December 19, 2017 at 8:38 pm

Ye olde horse-face hath opened the wrong barn-door, it seems.

minor nit: IMNSHO, Muller and the rest of his cabal of rabidly partisan hacks ARE “taints”… 😉

the only reason i’m not calling for this scumbag to be fired is that almost every day, another tidbit comes out that discredits the whole thing more and more, and, with every leak from it, or from Congress, it gets more likely that the only people getting prosecuted out of this will be the taints or the Demonrat scum involved in the circus, whether other Fed ‘crats breaking the law and releasing documents they shouldn’t, or Congress critters releasing classified info to the press.

    Matt_SE in reply to redc1c4. | December 19, 2017 at 10:54 pm

    Playing games with the law makes me very uncomfortable. If Mueller needs to be fired, don’t play some cutesy game with it that might backfire, just fire the man.
    If it comes back to bite you in the ass, it’ll already be too late.

GSA staff stumbled over one another in a mad rush to comply with Mueller’s dodgy request. I guess federal bureaucrats really can be efficient little worker bees when given the opportunity.

Oh, and it’s always the case that all of these laws and regulations proscribing fed agency behaviour are loaded with zero day backdoor ‘grey’ area hacks. One might be led to think that lawyers willfully write lousy law-code. Nahhhhh!

That’s just stupid!

/bonk stupid me!!!!
/bonk stupid me!:!?
/bonk stupid, stupid me?!?!:!,;?

DouglasJBender | December 19, 2017 at 8:56 pm

At this rate (over a year of essentially fruitless “investigation” of Trump and associates), they should just create a new government agency, and call it, “The Department of Perpetual Trumpian Investigations”.

I seem to be an extreme minority in thinking Trump anticipated Mueller and could not possibly have failed to anticipate that Mueller would grab the emails.

I also see parallels between the demands of the left to fire Comey, and the defense of Mueller being made by the democrats. I think Trump is in charge. I just don’t know exactly what his game is.

Ummm … Was anyone under the illusion that the investigation really was “on the up and up?” Are there really people that oblivious?

Timing is all important tin these things. The timing on the acquisition of the transition materials from the GSA was timed to allow the GSA to give this material to the SC and still be able to deny that they knew of the existing agreement between the GSA and transition team attorneys to notify the transition team before releasing any of this material.

Look, according to the Trump attorneys, a senior GSA legal official had notified the SC, in June, 2017 of the private nature of the transition documents and property. On August 23, just days after that official is hospitalized, the FBI sends a letter to the GSA requesting that this material be turned over. Apparently no one at the GSA contacted the GSA official who was in the hospital about this matter. Nor did they contact the transition team concerning the release of this material. If they had done either of those two things, then they would not be able to claim that they acted in good faith and did not know of the existing agreement between the GSA and the transition team and the notification of the SC’s office bny the GSA. This was designed to allow the GSA personnel release materials, which they reasonably believed did not belong to them or the government, to the SC. It was all designed for CYA.

Now there are two equally likely reasons for the snatching of these records by the SC. They are not mutually exclusive. The first is the likelihood of a great deal of frustration that no evidence of any type of collusion had surfaced. The second was the desire to find ANYTHING which could be used to embarrass Trump, whether it was related to Russian Collusion or not.

Any objective jurist is going to take one look at the timeline here and find that this was a stark violation of law, with intent. What that means in terms of real penalties is unknown. There is also the problem of finding an objective jurist in the heavily politicized, liberal activist federal court system.

I’ve found the best way to argue with friends and relatives who are sold on the Dem line of inquiry is simply to start out:

“So what if we were to hold this up to a mirror. Imagine a Trump administration special prosecutor who only hired investigators with Trump campaign donations, investigators who worked for the RNC, and with long histories of anti-Hillary vitriol, who then managed to get several of Hillary’s flunkies prosecuted for things they had done more than eight years ago while trying to get Hillary. Would that be fair?”

They normally splutter a little and switch topics, which I wanted to do in the first place. (otherwise, they yammer about it for hours)

rags, you’re simply adorable….Schumer, probably.

Mueller is pretty clearly no longer investigating a crime- he went the route he did simply because it was the only way to get the material without Trump’s lawyers knowing he had it. He doesn’t intend to use the material to prosecute a crime, but to set up perjury traps for the people being interviewed. I am guessing that this didn’t work out anyway since Mueller’s investigators seemed to have been too obvious in their use of the material. Trump’s lawyers have probably known since at least September that Mueller had this material, and have been simply letting Mueller and his team waste time with their little game of gotcha.

Lownentritt, when he gets called to the Senate will change his story and say he doesn’t recall what Beckler said during that meeting. Count on it.

I hear it said that Ratpierre and Yellow Snake is one and the same Demokrapp.

Come to think of it, they do sound alike.

    Ragspierre in reply to frankiefrank. | December 20, 2017 at 8:40 am

    Only to a complete idiot, PussyPusS.

    I read Mac45’s gassy, didactic declarations and find them remarkably stupid and dishonest.

    He’s frequently wrong. He frequently hasn’t a clue about what he’s telling people in “from Mt. Olympus” terms. As above.

    I find him tedious.

      Curiously, R-agspierre, many of us find you tedious as well.

      Opinions are like a**holes, every one has one. And you are entitled to yours.

      What you call gassy, I call informative. By the way, as didactic means “meant to inform or teach” I have to agree that my posts ARE didactic.Unlike some people here, I actually TAKE THE TIME to present a reasoned explanation for my position. This allows people to come to their own conclusions on whether my position is tenable or not. Now, I invite all who desire to do so to present their own reasons why my position may be wrong.

      You on the other hand, simply revert to attacking the poster, in this case me, without ever addressing the content of my post. If I am wrong, please explain in what way. Barring any attempt at discussion, your post is nothing more than a gassy declaration from “Mt. Olympus”. “This post is wrong. No more need be said. So proclaimeth Zeus [Ragspierre]”.

      Unless you are willing to actually engage in a reasoned discussion, then I suggest that you avert YOUR eyes and quite wasting bandwidth. Or just cut and past the phrase, “Oh, yeah?” into the post and save what limited brain power you have.

        Ragspierre in reply to Mac45. | December 20, 2017 at 11:07 am

        “By the way, as didactic means “meant to inform or teach” I have to agree that my posts ARE didactic.”

        You conveniently left off the part of the definition about “condescending”.

        Typical.

        But, no. I like what I do, and how I do it. I haven’t the time to fisk your bullshit properly, not being a retired civil servant.

        You’ll just have to deal with it. Lamely.

          Oh, yeah? LOL. I’m sorry, but I couldn’t help myself.

          Just to be DIDACTIC here, this is the definition of didactic from Dictionary. com”


          adjective
          1.
          intended for instruction; instructive:
          didactic poetry.
          2.
          inclined to teach or lecture others too much:
          a boring, didactic speaker.
          3.
          teaching or intending to teach a moral lesson.
          4.
          didactics, (used with a singular verb) the art or science of teaching.”

          You can choose any of those definitions that you choose. But, the rest of us will make our own choices. And they all involve teaching.

          Thanks for your input. LOL

          “condescending”

          The progs have always had their own dictionary. Ragspee is true to form.

          Ragspierre in reply to Ragspierre. | December 20, 2017 at 9:32 pm

          https://en.oxforddictionaries.com/definition/didactic

          Definition of didactic in English:

          didactic
          adjective

          1Intended to teach, particularly in having moral instruction as an ulterior motive.
          ‘a didactic novel that set out to expose social injustice’

          1.1 In the manner of a teacher, particularly so as to appear patronizing.

          LOL, and kiss my ass…

          Arminius in reply to Ragspierre. | December 23, 2017 at 3:35 pm

          Mac, what did you do in the service? I was intel myself. Which makes me the weak sister, maybe. But I was trained as a Ship’s security reaction team force member, an auxiliary security force member, and qualified on the M-16, M-14, M-590, M-9, M1911 (somewhere I have my permit so I could bring my own personal Colt Combat Elite onboard Naval Air Station North Island and use the range when it was available). And probable a few other weapons, not the least of which was the AWG-9 and the mighty, mighty AIM-54 Pheonix.

          The point of me giving you a brief review of my pedigree is not that I’m a bad @$$. I have been beaten by so many guys who were better than me I can’t even recall.

          The point I am trying to make is that I was in fact in the military. The no $h!t roll up your sleeves and get to work, oil that .50 cal military.

          Arminius in reply to Ragspierre. | December 23, 2017 at 3:49 pm

          “Ragspierre | December 20, 2017 at 9:32 pm

          LOL, and kiss my ass…”

          It’s dangerous to run your mouth that way. I’m not saying I could do it, or even that I would want to. But I went through SERE school with a few Marines and SEALs who could.

          As an aside whenever I meet a “SEAL” in Texas who isn’t named Marcus or Morgan Luttrell I know it’s safe for me to laugh at them. And give them all kinds of hell. Because they’re frauds. And I can be sure I’m tougher than they are. Because tough guys don’t impersonate SEALs.

Richard Beckler, the General Counsel for the GSA had clearly stated to all, including his subordinate Lenny Lowentritt, that the records in question were private communications and were being held by the GSA and clearly not owned by the GSA as well as that they were not government records. Mr. Beckler also committed to obtaining the permission of Trump’s people should any request for the records arise.
>
It should speak volumes that Mueller sought these records during the very short period when Mr. Beckler was hospitalized and that Mr. Lowentritt made no effort to communicate with Mr. Beckler or follow Mr. Beckler’s instructions.

I think it all hinges on Rosenstien. He got Sessions to recuse, hired Mueller and a hand picked slew of agents to defend Hillary and target Trump.

It’s as if Mueller…just went to your bank and said, “Hey, we would like all of [your] bank records, would you please give them to us,” and your bank said “sure, why not,” and we’re not even going to tell [you].

Well,that’s pretty much what Google, Facebook, Experian, etc. do. Our personal information, financial records, and all are collected behind our backs and there is little that we can do about it.

It is obvious that Mueller wanted all of these private e-mails to use in more process crimes. He probably already knows that there was no Russian collusion, which BTW, is not a crime, so he is going for leverage to make some lower person talk about insider things from the Trump campaign. This is getting to be really ludicrous and very un-American. If we allow this to become common practice then no future president will be free from an administration witch hunt. Of course, the Demorats love every minute of it and would love even more underhandedness by Mueller.

    The practical outcome of this BS is that the next Republican transition team is going to outright refuse to use the GSA during the transition, and simply use their own servers.

Let the investigator investigate. Partisan bickering with regards to this Republican, combat veteran, civil servant only chips away at our justice system and the consequences May be much worse than we think.

    So, we should fund unlimited, open ended investigations into anything, whether it is a potential crime or not, and allow government investigators to ignore the law and basic rights. And, you feel that this will NOT chip away at our justice system? I find it interesting that you failed to mention Mike Flynn in the Republican, combat veteran, civil servant category along with Mueller.

    Mueller isn’t an investigator.

    He’s a corrupt tool. Mueller and his employers care nothing about the USA, justice, or law.

    They all know there was no russian collusion by Trump. They all know there is collusion by Clinton.

    Just a witch hunt.

I understand Trump not firing Mueller. If he does, the low-info dems will be told and will believe (mercy!) that Trump did it because of guilt. Which the MSM will use to caturwaul for ages about how dangerous Trump is.

It’s also interesting how completely unprofessional and unproductive the “investigation” has been. For those with eyes to see, Mueller has been clear as glass that he’s on a vendetta and doesn’t care who is harmed.

Don’t forget that Mueller brought in staff that had been on the Clinton “investigation”. A new team would have invariably uncovered the malfeasance of the old team. So one goal of this investigation is to shield the investigators who whitewashed Hillary Clinton’s crimes.

    OldNuc in reply to Fen. | December 20, 2017 at 7:43 pm

    There is enough information coming out regarding the actions of the prior administration that whitewash futures are going through the roof and the general public is beginning to notice that something is actually wrong here. Too much happened that is going to be very hard to hide. For example the latest exposure of the cocaine trafficking directly resulted in the deaths of American service men, this will not play well in Peoria.

“[GSA] just gave them to Mueller.”

This statement is only half true.
Apparently, the person in charge of handling the PTT was out with a medical problem, so the FBI went over with a request for documents and the idiots at GSA just turned them over.

Frankly, this is a sophomoric jackassery by Robert Mueller and/or his staff.

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