The .Gov Defense and The Strange Alliance In Favor Of Warrantless Seizures

440px-Director_Robert_S._Mueller-_III-1280px-US-GeneralServicesAdministration-Logo.svgYesterday, the Hill posted a column discussing serious legal concerns raised the seizure of transition team emails by Special Counsel Robert Mueller. While the privacy dangers would seem obvious, many dismissed such concerns with a type of .gov defense. The arguement goes something like this: since the transition team used a government address and server (with a “ptt.gov” address), they had no expectation of privacy (or presumably privileges) in the contents of their communications. In another example of rage overcoming reason, this view is being espoused with little concern for its implications for the future.

The overwhelming desire of some to see the prosecution of President Trump has created a strange alliance of some liberals with prosecutors in supporting warrantless searches and heavy-handed tactics. There is palpable attitude that “no cost is too great” to remove Trump, even at the cost privacy or constitutional protections. This week, Minority Leader Charles Schumer went to the floor dismiss concerns raised about Mueller’s tactics as “nothing more than propaganda and disinformation to try and turn the public’s attention away from the real investigation.”

This however is a question of means not ends. I believe Mueller had a legitimate interest in some of these emails and could have likely obtained most them through a court. However, there is no indication that a court order was ever secured by Mueller or demanded by GSA.

Transition records do not constitute agency or presidential material. Commentators have avoided this threshold issue by adopting the secondary position that there was some form of waiver – either express or implied – in the use of the GSA and its computer system. Former federal prosecutor Jeffrey Cramer dismissed any legal or privacy concerns on this basis in declaring: “This is not a problem. The server owner, in this case GSA, properly has the emails and can turn them over if there was a subpoena or court order.” The problem is that there is no record of a subpoena or court order of any kind – only a demand letter following express objections from the transition team that the emails contained privilege and confidential information. Moreover, even if there were an order, there remain questions of whether it should have been issued without greater protection for claims of privileged material.

Express Waiver

The express waiver argument was made by GSA attorney, Lenny Loewentritt. Loewentritt told Buzzfeed that there are disclaimers in the memorandum of understanding signed with the GSA so that “no expectation of privacy can be assumed.” Specifically, he said that the transition team knew that such material could be audited and monitored. However, that does not mean that communications can be reviewed for their content or turned without a court order. The same MOU reinforces that the GSA would delete “all data on [computing] devices” used by the transition team. Indeed, the transition counsel noted that they were assured in the MOU with the Obama Administration that it would “protect the confidentiality of transition information made available to the Government.”

Loewentritt also stressed that the GSA’s Rules of Behavior for Handling Personally Identifiable Information state that “a system manager may disclose your record without your consent under the Privacy Act when the disclosure is to a US law enforcement agency or instrumentality for a civil or criminal law enforcement purpose.” Again, however, that only means that, as the custodian of records, GSA can be required to turn over material. The possible compelled release of information does not mean that citizens have no privacy interests or privileges. For example, the disclaimer mentions civil litigation. Is Loewentritt suggesting that the GSA is free to turn over transition documents when a private litigant simply sends a compelling letter of need?

Implied Waiver

Loewentritt and others have suggested that the use of a government email address should have been sufficient notice that were no protections under privacy or the Fourth Amendment – at least any protections requiring a court order. Under that standard, there is a virtually complete waiver of privacy and Fourth Amendment protections by individuals or organizations when using a .gov or other government address – a position that would be as daft as it would be dangerous. When I have represented government employees, my communications to them on government devices are still given protection.

Loewentritt and others seem willing to boldly go where even the United States Supreme Court feared to tread. In 2010, the Supreme Court considered whether public employees have an expectation of privacy in text messages sent on government devices in City of Ontario v. Quon, 560 U.S. 746 (2010). The lower courts found that employees did indeed have such an expectation even though they were barred from using the devices for anything other than incidental personal use. Note this case did not involve private parties (like transition officials) or constitutional privilege concerns (over confidential transition communications). Just personal text messages by employees. Nevertheless, the Court opted for a “prudent” and “cautious” approach in refusing to reject (as the government asked) the privacy claims of such employees. Instead, it found an exception to such privacy concerns due to the fact that the agency looked at the messages for a “noninvestigatory work-related purpose.” (It was trying to determine if the monthly character limit was sufficient for employees).

When courts have faced government searches of agency devices, even for actual agency employees, they have applied a multifactored test to determine if the search was “justified at its inception” and reasonable in scope. The common exception for a warrantless search is for a “noninvestigatory, work-related purpose” or for the “investigation of work-related misconduct.” O’Connor v. Ortega, 480 U.S. 709, 725–26 (1987). In other words, the assumption is the opposite of the one suggested by Loewentritt and the GSA.

Trump for America (which is the transition entity) is a private non-profit entity. During the Obama Administration, the National Archives assured Obama officials that transition records were private and not governmental records. Moreover, they were required to use the GSA system as part of the transition process.

In the end, none of this means that the emails taken by Mueller’s team will “taint” the investigation or doom any later prosecutions. Nor does it warrant the equally reckless calls for Mueller’s firing as Special Counsel. Rather, this is an area of ambiguity with significant privacy and constitutional concerns. If this was a warrantless seizure, it was a risk not worth taking for Mueller or the country.

35 thoughts on “The .Gov Defense and The Strange Alliance In Favor Of Warrantless Seizures”

  1. My concern is that if Muller is running a legitimate investigation, what was the problem with asking for a court to validate a subpoena request for the documents in question? Is Muller saying, by his admission of not going through proper legal channels, that everything he is doing is illegitimate?

    As for the overall commentariat positions taken by the press, most of them seem to be operating under the principle of, “by any means necessary.” This is a gross misunderstanding of how the United States legal system is supposed to function.

  2. My garbage cans were just picked up at the curbside. I had no expectation of privacy for anything hidden in plain sight in those garbage cans before their contents were picked up and hauled away by the trash truck. And Mueller didn’t send me a letter politely asking me to give him the contents of my trash cans, either.

    Turley is zealously representing his Congressional clients again.

  3. Shareblue’s article about the views of judicial analyst, Andrew Napolitano, summarize Fox coverage, “attacks on Mueller (183 by Hannity since May) only accelerated as the Russia probe gets closer to Trump’s inner circle”.

  4. The FBI and its sister intelligence agencies, are very covetous of their data and records. FBI records of long-closed cases and investigations are regularly denied to FOIA requesters. Federal judges are complicit in maintaining opacity of federal records in FOIA litigation. Why not have mandatory disclosure of all federal records that are not part of an active investigation?

  5. There seems to be a lot of assumptions that there were no subpoenas or warrants and interpretations that an express claim of no expectation of privacy means something else entirely. The howling from Fox News, some Republican House members, and Trump seem mostly sour grapes that they could get caught more easily in their lies. They are upset that they have no idea what Mueller knows and that he’s leaving no stone unturned.

  6. Store your email in encrypted form. Pgp, i.e., pretty good privacy, is freely available. My understanding is that it requires a court order for you to hand over the encryption keys.

    Most people will want to decrypt to read such. 🙂

  7. James Comey proved Hillary guilty then exonerated her.

    Professor Turley proved Mueller guilty then exonerated him.

    At a minimum, this “transition team e-mail” material which Mueller illegally obtained must not be allowed in or otherwise admissible in the Special Prosecutor’s findings and charges.

    At a maximum, Mueller must be investigated as he has conspired to engage in a massive abuse of power and national coup d’etat, as he has initiated this illegal Special Prosecution without a delineated crime to investigate, deliberately assembled a biased, subjective, ideologically opposed and corrupt staff, willfully “overreached” the “scope” of phantom “Russian Collusion,” seized “evidence” illegally and violated the constitutional rights of Americans.

    Tainted investigations and doomed prosecutions indeed.

    1. “Professor Turley proved Mueller guilty then exonerated him.”

      I don’t think that’s the case. I believe Turley’s statement — “In the end, none of this means that the emails taken by Mueller’s team will ‘taint’ the investigation or doom any later prosecutions” — is MEANT to mean “”In the end, none of this means that the emails taken by Mueller’s team will NECESSARILY ‘taint’ the investigation or doom any later prosecutions.”
      I think he’s still leaving open the possibility that there may be arguments or evidence that we haven’t yet heard, or that there’s nothing in the emails that has led to evidence that will be used in court. And I think he’s also leaving open the possibility that Mueller might well be culpable for his own unlawful conduct at some point, but that what we know so far isn’t enough, on its own, to assert that Mueller MUST be fired.
      Summary: I think Turley is being cautious and responsible — not wishing to make extreme statements in a world currently junked out on hyper hyperbole.

      1. Res ipsa loquitur.

        Mueller agreed to the contract.

        Mueller knew, when he accepted the appointment as Special Prosecutor, that Schiff and the liberals were creating vacuous, false political charges of “Russian Collusion” out of whole cloth – that they were conspiring to falsely incriminate as an extreme reaction to Hillary’s election drubbing. Mueller, the “deep state,” the “swamp” and the shadow government understood the implications on election night. The cat was out of the bag. They had no choice but to go on offense because their actions were and are indefensible as collusion in the most prodigious scandal in American political history. Liberal corruption went a bridge too far. Mueller’s investigation-of-nothing will be known to be as fraudulent and insidious as the Warren Report.

  8. so how bout Mueller and his crack team instead of spending time and money on nebulous witch hunts investigate a real pressing national security issue: all the Dim house members who used the Paki spies to handle their IT needs?? The Awan brothers are getting 0 coverage in the MSM

    How about collecting all emails, texts and financial transactions — after all we the taxpayer paid over 5 mil for their “work” –also when is Rep Yvette Clark going to reimburse us for the computer she wrote of?.

    Can we please have former Rep now CA AG Xavier Becerr be supeoned to discuss why he chose to use the Awan brothers?

    Can we have a hearing and explanation from all those Reps?

    Can we have a special investigation into Debbie Wasserman Schulz’s activities

  9. Logical conclusion: The government, in designating my postal address, owns the address and can conduct warrantless searches of my property.

    Also: Are the feds claiming to have ownership of content held within state and tribal .gov addresses? That would raise even more issues.

  10. Clearly the Trump Transition Team should have been aware the only sure way to maintain secure communications is via a private server managed by some nefarious Pakistani family. Then if it is discovered and ordered to be turned over by subpoena, then bleach bit it. And then send the Pakistanis away on holiday. Chances are the FBI would never be able to prove intent; at least based on recent investigations.

    1. The transition team was appraised of the fact that they have no expectation of privacy when they used the PTT email system. Have you ever logged into a fedgov email system? It tells you right up front that you can not have any expectation of privacy. Period.

      1. Wrong. The transition team was apprised (not appraised) of the fact that the email could or would be “monitored” — that doesn’t mean read or inspected. Try rereading what Turley tried (and apparently failed) to explain to you. There’s a difference between checking a system to make sure it’s operating properly or not being abused and reviewing the confidential communications of lawyers. Plus, the transition team was REQUIRED to use the government system and it’s assumed that lawyers are working on the transition team. Therefore the mandatory requirement to use the government system can NOT be construed as license by the GSA or anyone else to examine the contents of confidential communications.

      2. Marco, you’re right on the mark. The GSA is like a public storage locker operated by the federal government–rather than a private company renting storage space to private customers under the terms a contract.

        If Mueller wanted to seize private records from a privately owned and operated public storage locker, then Mueller would need a warrant. But since the GSA is like a government owned and operated public storage locker for the public records of public officials, Mueller didn’t need a warrant to seize those public records of those public officials.

        Turley is just zealously representing his Congressional clients–as he is ethically obligated to do. You see, ethics is also an adversarial process. Mueller is still sharp as a tack, Marco.

  11. It is evident the sandard practice of the former administration and it’s staybehinds and it’s supporters such as Meuller and company have long iand publicly ignored the Constitution from the President on down. Obama set the standards for violation of a number of the provisions of the Constitution specifically those that sttate that powers not granted are denied. His view that ‘the supreme court hadn’t visited that paricular part of the Constitutioni yet’ was his standard in direct violation of the oath of office.

    Others followed such as unillaterally attempting to conclude agreements and treaties without the Advise and Consent of Congress and a number of others. not the least in my personal opinion was using the approval and later maligned War Powers Act of the previous administratioin without getting a subsequent approval after eight years of war. the Act has now been set aside using the device that we shall call this ifrom 9/11 on The War on Terrorisim and it needs no other approval. Yet the left does not hold this view as the present President attempts to conclude sixteen years of non stop war.

    Therefore I am compelled to agree with Professor that these latest actions have far reaching possibilities not in keeping with our representative Constitutional Republic

    I also support the position the President took in statinig “he would not fire Meuller’ thus not only defusinng the left’s radical and violent plans but also allowing them to keep exposing themselves publically.

    There is not doubt we made the right choice in bringing an outsider and ensuring the ouster and rejectioin of what has become a one single party system under one man rule.

    1. Nott only defusing..one ‘n’

      Doing well until the last lines. ouster and rejection of what had become a single party system under one man rule.

      1. Sure is it means they had no reason to be concerned on the legal side but saw great opportunity to once more ambush and expose the left. Who else would they go to? it’s the only main stream media left.

      2. Fox News is stagin a coup. I did not vote for them did you? T rump wants them to own more of da media so they can be da official arm of da T rump government with no checks or balances.

    1. That would have been settled had a subpoena or warrant issued. Since there iwas an issue of expectation of privacy that previously was offered and accepted threfore a ‘letter’ was insuffiicient. The fact they were compelled to not only ask but demand indicates there was sufficent doubt. Using the circuiitous and evasive route was another indicator. Were it violation of attorney client privilege alone that would have been sufficient and there was no attempt to destroy or erase as in the Clinton matter.

      But after the previous bombshell as Clinton her self said, “At this ipoint does it really matter?” Yes it does. Unlawful precedents gave us a string of imperial presidencies for one example.

      To answer your question the issue will now have to be settled in court doubtless a nother layer of swamp creatures will emerge and in the end it will be as ineffective as ‘collusion’

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