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.”

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