On December 3, 2017, when it became clear from the plea of Michael Flynn that Robert Mueller was heavily focused on post-election political decision making of the Trump transition team, I asked, Why is Robert Mueller even investigating the presidential transition?
It is clear from the prosecution of Flynn that Mueller views the transition as within the scope of Mueller’s investigation, otherwise there would have been no reason for Mueller to prosecute Flynn…. The public documents regarding Flynn’s plea make clear that the transition is in focus.If news reports have any credibility (and they may not), then Mueller is investigating the political actions of the Trump transition team during the transition period.What authority, however, gives Mueller power to investigate the political strategies of the incoming Trump administration long after the election was over? It does not appear that Mueller has that power under the Order appointing him as Special Counsel….To the extent Mueller’s team is investigating the political decisions and strategies of the incoming Trump administration during the transition period, it amounts to an interference in the post-election political process and is beyond Mueller’s authority.
Earlier today, Mike Allen at Axios reported a scoop that made clear Mueller was focused on the transition, Scoop: Mueller obtains “tens of thousands” of Trump transition emails:
Special Counsel Robert Mueller has obtained “many tens of thousands” of Trump transition emails, including emails of Jared Kushner, transition team sources tell Axios.
- Trump officials discovered Mueller had the emails when his prosecutors used them as the basis for questions to witnesses, the sources said.
- The emails include 12 accounts, one of which contains about 7,000 emails, the sources said.
- The accounts include the team’s political leadership and the foreign-policy team, the sources said.
Why it matters: The transition emails are said to include sensitive exchanges on matters that include potential appointments, gossip about the views of particular senators involved in the confirmation process, speculation about vulnerabilities of Trump nominees, strategizing about press statements, and policy planning on everything from war to taxes.
- “Mueller is using the emails to confirm things, and get new leads,” a transition source told me.
How it happened: The sources say Mueller obtained the emails from the General Services Administration, the government agency that hosted the transition email system, which had addresses ending in “ptt.gov,” for Presidential Transition Team.
Now both Fox News and Axios are reporting that the lawyer for the Trump transition team is accusing Mueller of having improperly obtained the documents.
From Fox News:
A lawyer for the Trump presidential transition team is accusing Special Counsel Robert Mueller’s office of inappropriately obtaining transition documents as part of its Russia probe, including confidential attorney-client communications, privileged communications and thousands of emails.In a letter obtained by Fox News and sent to House and Senate committees on Saturday, the transition team’s attorney alleges “unlawful conduct” by the career staff at the General Services Administration in handing over transition documents to the special counsel’s office.The transition legal team argues it could be a violation of the 4th Amendment – which protects against unreasonable searches and seizures.Kory Langhofer, the counsel to Trump for America, wrote in Saturday’s letter that the GSA “did not own or control the records in question.”Langhofer said the special counsel’s office received “tens of thousands of emails” from the GSA as well as certain laptops and cell phones containing privileged materials.The transition attorney said they discovered the “unauthorized disclosures” by the GSA on December 12th and 13th and raised concerns with the special counsel’s office.“We understand that the special counsel’s office has subsequently made extensive use of the materials it obtained from the GSA, including materials that are susceptible to privilege claims,” Langhofer writes.Trump for America is the nonprofit organization that facilitated the transition between former President Barack Obama to President Trump.
Axios reports in an update:
Charging “unlawful conduct,” Kory Langhofer, counsel for the transition team, wrote in a letter to congressional committees Saturday that “career staff at the General Services Administration … have unlawfully produced [transition team] private materials, including privileged communications, to the Special Counsel’s Office.”
- The seven-page later, obtained by Axios, says: “We understand that the Special Counsel’s Office has subsequently made extensive use of the materials it obtained from the GSA, including materials that are susceptible to privilege claims.”
- The letter says this was a violation of Fourth Amendment protections against unreasonable search and seizure.
- “Additionally, certain portions of the [transition] materials the Special Counsel’s Office obtained from the GSA, including materials that are susceptible to privilege claims, have been leaked to the press by unknown persons.”
The Special Counsel’s office said: “We will decline to comment.”The transition sources said they were surprised about the emails because they have been in touch with Mueller’s team and have cooperated.The twist: The sources say that transition officials assumed that Mueller would come calling, and had sifted through the emails and separated the ones they considered privileged. But the sources said that was for naught, since Mueller has the complete cache from the dozen accounts.
This is sure to escalate the situation, and has all the appearances of impropriety by the Special Counsel’s office. We will update as more becomes known.
Once again, however, this shows how Mueller is going beyond his mandate and investigating post-election politics and political decisions of an incoming administration.
Perhaps this is why rumors started swirling on Capitol Hill that Mueller would be fired.
UPDATE: Letter from transaction team lawyer is here.
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