Over the weekend, reports surfaced that Special Counsel Robert Mueller may have inappropriately taken possession of “many tens of thousands” of emails from the Trump transition team, obtained through the General Services Administration – the government agency responsible for hosting the transition email system which used a “ptt.gov” address, without getting the necessary search warrants and/or subpoenas.
The trove of documents, which, according to Axios, included sensitive emails to and from Trump son-in-law and top advisor Jared Kushner, comprise 12 email accounts – one of which reportedly contains around 7,000 emails.
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.
Not surprisingly, Trump transition team lawyer Kory Langhofer said the Special Counsel obtained the documents through “unlawful conduct” by career staff at the General Services Administration…whom one can only imagine had their own personal axe to grind.
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.
Kory Langhofer, the counsel to Trump for America, wrote in the letter that the special counsel’s office is aware that the GSA “did not own or control the records in question.”
But, Langhofer says, Mueller’s team has “extensively used the materials in question, including portions that are susceptible to claims of privilege.”
The Trump transition team lawyer argued the actions “impair the ability of future presidential transition teams to candidly discuss policy and internal matters that benefit the country as a whole.”
Of course, we can certainly understand that Trump’s attorney may not be the most trustworthy fact witness on this particular topic, so perhaps you should consider the opinion of Robert Barnes, a California-based trial attorney whose practice focuses on Constitutional, criminal and civil rights law. According to a legal analysis by Barnes published to Law & Crime, Mueller’s mass seizure of Trump emails violated a number of well established laws and precedents.
In my opinion, a mass seizure – as is alleged here against Mueller – cannot conform to either Fourth Amendment standards or attorney-client privilege protections. The questions boils down to this: was there a reason for the individuals communicating by email, including with their lawyers, to believe their communications were private or privileged? Or, did the individuals forever waive or “implicitly consent” to any future search or seizure of their emails?
Courts typically employ a four-factor test, that tends to be very fact-intensive, email-specific, and individual-specific. (In re Reserve Fund Securities and Derivative Litigation, 275 F.R.D. 154 (S.D.N.Y. 2011). First, whether the government or company maintains a policy banning personal use. Second, whether the government or employer monitors the use of the email. Third, whether third parties have a right of access to the emails beyond technical audits and maintenance. Fourth, whether the government or employer notifies the individual of the limits on privacy in the emails, whether the individual was aware of those policies, the use of those policies, and the monitoring of those policies. It boils down to whether a person in the individual’s shoes would have had no reasonable expectation of privacy in their email communications.
The Mueller search runs afoul of many of these established court precedents and Fourth Amendment privacy and privilege principles. First, it appears Mueller searched and seized every email, without any kind of categorical or keyword search. This is exactly the kind of search the Supreme Court made clear was not allowed under the Fourth Amendment. This means Mueller can only prevail if he didn’t seize a single email of a single individual that the individual could have any expectation of either personal privacy or attorney client privilege in.
As Barnes further notes, the primary defense proffered by Mueller’s team is the faulty assumption that the use of a government server automatically waived all privacy and all privilege of every email ever sent over that server. But, as argued above, that has never been the law. The security and efficacy of government-owned servers for transition employees are not intended as a trap for the unwary to forever forfeit their privacy and privilege rights in their communications.
Meanwhile, it’s not difficult for even the layperson, like us, to understand that such an interpretation of privacy laws would completely undermine the use of secure government servers and “invite Hillary Clinton type bathroom closet email servers for everybody.”
So, how does Barnes expect this illegal seizure to play out? Apparently there will be some ‘regret’ involved…
It appears to me, Mueller deliberately skipped the court, the grand jury, and the government-imposed limits on investigative inquiries into worker conduct under Supreme Court precedent; he might have done so because he wanted a tactical edge, and was walling to ignore the Fourth Amendment restrictions on him to do so. Mueller may come to regret his choice.