Mueller’s Reckless Gamble: Why The GSA Email Seizure Was Both Unprecedented and Unnecessary

440px-Director_Robert_S._Mueller-_III-1280px-US-GeneralServicesAdministration-Logo.svgBelow is my column in The Hill Newspaper on the email seizure by Special Counsel Robert Mueller from the General Services Administration. As discussed yesterday, many supporters of Mueller are not contesting that this material did not constitute agency records or property, but rather that there was some type of express or implied waiver of privacy and confidentiality.  While I consider this an ambiguous area, I obviously disagree with such dismissive positions.

Here is the column:

220px-Hoover-JEdgar-LOCJ. Edgar Hoover used to say that “justice is just incidental to law and order.” It was a telling quote from someone who routinely abused his power in seeking what he viewed as enemies of law and order. Hoover is now a pariah at the FBI and the Justice Department, but his attitude toward the use of federal power lingers like a dormant virus. Too often investigators interpret uncertain legal questions as a license for action.

That seems to be the case with a new and troubling controversy over a massive seizure of emails by special counsel Robert Mueller from the General Services Administration (GSA). 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.

download-1For 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. As I have previously written, Mueller has a controversial record in attacking attorney-client privilege as well as harsh tactics against targets. As a U.S. attorney, he was accused of bugging an attorney-client conversation, and as special counsel he forced (with the approval of a federal judge) the attorney of Paul Manafort to become a witness against her own client. Weissmann’s record is even more controversial, including major reversals in past prosecutions for exceeding the scope of the criminal code or questionable ethical conduct.

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.

When Mueller’s people found out that the transition records were not yet deleted, they demanded their surrender despite the fact that Trump officials claimed that the material held privileged information that belonged to the transition team and is subject to protection from discovery. The transition lawyers insist that Richard Beckler, general counsel for the GSA, reportedly agreed with transition officials that this information belonged to the transition team and that GSA had no right to access or control the records, but GSA denies the comment. The Trump lawyers argue that, when Beckler was hospitalized, Mueller’s people moved on the seizure and acquired the thousands of messages.

According to the Trump counsel in a letter sent to Congress, the special counsel’s office told them that they did not pull emails from the equipment. However, it was later revealed this might not have been necessary because “the special counsel’s office had simultaneously received from the GSA tens of thousands of emails, including a very significant volume of privileged material.” Moreover, the special counsel later reportedly confirmed that it did not create “firewalls” or “taint teams” to confine the access and use of such material.

Mueller’s office insists that it followed correct procedures, and the GSA has said that the transition team was told that any records were subject to auditing and thus were not entirely private. Yet, this does not explain why the GSA believed it had authority to give the emails to a third party. Moreover, unlike Mueller’s use of Manafort’s own attorney as a witness (which many of us view as improper but a judge allowed), this demand does not appear to have been made in the form of a court-approved subpoena.

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.

Oliver_North_mug_shotThe independent counsel in the Iran-Contra affair, Lawrence Walsh, saw his conviction of Oliver North tossed out due to the fact that the court believed that his investigation was “tainted” by evidence derived from North’s immunized testimony before Congress. Walsh was unable to show that key evidence was not derived in some way from the protective testimony given by North.

Mueller could have simply sought the preservation and judicial review of the material, but elected (again) the blunt tool over the surgical device. In the end, if Mueller does not charge on any type of “collusion” claim, this may all prove harmless. However, if he proceeds to an indictment, he may have created a poison pill factor where indictments could be brought but prove unprosecutable. That actually might satisfy some as compromise like the practice of some Plains Indians to prove their bravery by touching enemies with “coup sticks.” Of course, they were generally then shot by settlers.

If Mueller wants more than a coup stick prosecution, the move against the GSA was one door he should have opened rather than kicked down in his investigation. Only time will tell, of course, but this is a legal complication that was as unnecessary as it was unprecedented.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can follow him on Twitter @JonathanTurley.

111 thoughts on “Mueller’s Reckless Gamble: Why The GSA Email Seizure Was Both Unprecedented and Unnecessary

  1. I like the double standard. If Mueller can just take Republican emails from the GSA, why couldn’t federal prosecutors and FBI agents do the same with the Hillary emails? Hillary treated with kid gloves, given a pass, while a military hero, veteran, General Flynn, was trapped with lying. Then, we have Louise Lerner at the IRS running interference against the Tea Party and she gets a walk, while Trump is being anally investigated for collusion. See there are two types of justice, one for Republicans and another for Democrats. America is a failed state. Civil war is coming. The reprobateness of the Democratic party is now being realized and the character of democrats are turning many people’s stomachs. I’m sick and tired of Democrats. They are Marxist pigs.

    • Not sick and tired of Republican Rep. Kristi Noam who told a tall tale about her family farm in order to get the “giveaway to the rich” tax bill written? She blathers about government overreach while her family cashes substantial checks the government gave out as farm subsidies.(USA Today)
      Not sick and tired of a President who blathers about the horrors brought on the nation by illegal immigrants, while commuting the sentence of a guy whose plant was found with 389 illegal immigrants working?

        • It was at a meatpacking plant in Iowa and even Fox covered it within the past few days. The guy’s family members are political contributors.
          Paul, learn to internet search then, you’ll have access to different perspectives on a story.

          • Linda – he commuted his sentence. The internet is your friend. Use is sometimes. Big difference between commute and pardon.

            • Paul-
              You used the word “pardon”. I used the word “commute”. The difference, in terms of Trump protecting those who hire almost 400 “illegal immigrants” – NONE. The difference, in terms of Trump overriding a decision based on a court decision- NONE.
              If you were convicted for hiring 400 “illegal immigrants” and, weren’t a political donor, do you think your sentence would be commuted? The Trump difference in a swamp filled and a swamp drained- NONE.

    • Not sick of Paul Ryan whose mother cashed Social Security survivor checks to feed the family? And then, with typical right wing hypocrisy Ryan works to deny those benefits to others.

      Not sick of family values rhetoric from right wing debauching politicians?

  2. 6000 lobbyists worked the GOP tax bill through Congress and the Koch’s got what they wanted. The poster boy for the tax bill (which only 24% of Americans support) is a Koch son, Wyatt, who will benefit from the pass through provision. He sells shirts, one called, the Money Bag shirt, which he promotes as good to wear to places like “disco’s”.

  3. If Mueller’s past history is as you described, then why is he still employed? Why hasn’t he been disbarred? Past predicts future, and he appears to behave as he always has.

    Why do lawyers get away with bad behavior?

  4. Mueller voluntarily agreed to a supreme loyalty oath – oath of office – as a condition of employment and authority. He promised to protect the constitutional rights of every person on U.S. soil including the 14th Amendment rights of non-citizens. He promised to follow the warrant requirement of the 4th Amendment.

    The U.S. Constitution is a wartime charter designed to be followed during wartime. Maybe Mueller has good intentions but he should have fidelity to his supreme loyalty oath!

  5. Reblogged this on The Inquiring Mind and commented:
    Professor Turley takes a balanced view of some recent developments in the Mueller probe of allegations regarding Trump and Russia. This view is somewhat different from that taken by other commentators. More on this in other posts, but this one provides some excellent food for thought.

  6. I’m looking for the expressions of concern by Turley and posters on this blog regarding the possible gross violations of privacy of the FBI agents whose emails about Trump were made public even before the FBI’s internal investigation has been completed.

    I’m not going to hold my breath.

  7. Mueller’s Reckless “Deep-State” Gambles

    Mueller was FBI Director under Bush and Obama. Mueller left the FBI in 2013 when Hillary completed her pay-for-play at State. The Clinton Foundation’s value rose from nothing to $2 billion from 1997 through the end of Mueller’s term as FBI Director and until Hillary lost the 2016 election.
    ________________________

    The Uranium One Treason (excerpts)

    “The short version is that in 2010, when Mueller was FBI director, members of an interagency committee working under the Obama administration facilitated a highly-suspicious business deal that had grave public implication. The result of it was that Barack Obama and Hillary Clinton effectively handed Russia and Vladimir Putin control over as much as 20 percent of the uranium production capacity of the United States.”

    “As this deal was coming to fruition, after years of nefarious Clintonian machinations urging it along, Mueller’s FBI was investigating — and may have uncovered clear evidence of — Russian bribery and fraud to the detriment of U.S. uranium contractors, as part of a larger Russian (Putin) racketeering scheme to gain control of global uranium resources, namely by purchasing the power and influence being peddled by the Clintons to anyone who would meet their terms.”

    “The FBI appears to have been investigating a Moscow-compromised uranium trucking company called Tenex As early as 2009. Tenex was allegedly engaged in racketeering through a pattern of bribes and kickbacks in violation of the Foreign Corrupt Practices Act.”

    “Tenex was operating out of Bethesda, Maryland through a subsidiary named “Tenam USA.” The company was run by a Russian official named Vadim Mikerin. As the FBI was investigating Tenam’s alleged extortion and bribery scheme, Russia was seeking permission from the Obama administration and the Clinton State Department to acquire ownership in Uranium One. Despite evidence of Tenex’s and Mikerim’s alleged corruption as early as 2009, the Obama administration rubber-stamped a U.S. work visa twice for Mikerim, as late as 2014.”

    “And what did our intrepid paragon of justice Robert Swan Mueller III do to thwart this alleged scheme and arrest its perpetrators?

    The answer is absolutely – NOTHING.”

    “Robert Mueller ensured that his own FBI investigators were effectively walled off from exposing the real players in our own government who were complicit in this epic influence-peddling scam founded on the Clintons’ ruthless greed and epic criminality.”
    _____________________________

    Russo-Clinton Treason: Phase II

    “Once Uranium One was set up with the Kazakhstani uranium holdings firmly in the control of Clinton cronies, the stage was set for the next step in the Clintons’ treasonous plot: handing over Uranium One and its holdings to the Russians, or more accurately to Vladimir Putin.”

    “To be clear, Hillary Clinton did not have the authority to push such a potentially-controversial deal through by herself. Such power ultimately resides with the president, in this case Barack Obama.”

    “If you think all of these connections and occurrences are too mind-boggling to accept as mere coincidence, hold onto your seat for this next one. Remember how the alleged Tenam/Rosatom racketeering activities were centered in Bethesda, Maryland at the Tenex U.S. offices? As rank-and-file FBI agents were assiduously investigating these Russian schemes to obtain U.S. uranium resources through corruption of public officials, Robert Mueller handed his longtime legal crony the Uranium One case to be buried and forgotten, clearing the way for approval of the Rosatom deal by the Obama administration and Hillary Clinton.

    The crony’s name was Rod Rosenstein.”
    ________________________________

    http://dailycaller.com/2017/12/20/the-uranium-one-treason-why-robert-mueller-must-be-removed-and-his-partisan-hit-squad-dismantled/

  8. (Music- to tune of Camp Town Races)

    Muller stole my e e mails…
    Do da! Do Da!
    Muller stole my emails…
    Oh da doo da day!

    Time to cry all night!
    Time to cry all day!
    Camp town racers sing this song…
    All the do da day!

  9. With the multiple legal blunders made by Mueller, Comey, Lynch, and other high ranking DOJ lawyers, the question arises of whether it is due to imperial, bureaucratic hubris, or, the organization’s tendency to reward, and promote to the top, incompetent cronies demonstrating absolute fealty.

  10. The Trump Transition Team should have taken a page from the Borg Queen and handled all email communications on their own server kept in Melania’s shoe closet.

      • You totally missed the joke. And apparently the Colin Powell defense only works for the Borg Queen.

        Let’s look at key quotes from the article you cited (for everyone’s edification):
        “But it is not illegal for White House officials to use private email accounts as long as they forward work-related messages to their work accounts so they can be preserved.”

        And this (buried in the middle of the article, natch):
        “While the private email accounts spurred accusations of hypocrisy from Democrats, there are differences. Mrs. Clinton stored classified information on a private server, and she exclusively used a private account for her government work, sending or receiving tens of thousands of emails. The content and frequency of the Trump advisers’ emails remain unknown, but Trump administration officials described the use of personal accounts as sporadic. The emails have not been made public.”

        What is also very interesting is the article’s description of Congressional response to the issue. Trey Gowdy and Elijah Cummings have both reached out to the WH asking for all the emails to be preserved. Gee, did any Democrat put the screws to Hillary to make sure all her private emails were turned over and looked at post-haste, pre-Bleach Bit? I can find none via a quick online search. Do you really not see the difference in actions and political party response?

        Allegations of “Obstruction of Justice” leveled at Trump Admin officials, both past and present, are laughable, given the actions of Mills, Abedin, Clinton, Samuelson, Lynch, Combetta, etc. ad nauseum enabled by FBI bootlickers who essentially gave the whole Clinton criminal cabal a free pass.

        • Da T rumpers prefer Putin’s KGB to the FBI but they sure did like da FBI when they mentioned Tony Weiner’s computer a week before da election. Now that their crook is in da hot seat they don’t like em anymore. They think their Orange king is above da laws of da USA.

          • You’re barking up the wrong tree. As recent history has clearly shown, the only people above the law are the Clintons and their sycophants.

            • CCS, we obviously have contributors here that not only offer nothing of substance, they do so in a way that would make a 3rd grade English teacher cringe. At a minimum, anyone that cannot manage to form the word the in their sentences should have no expectation to be taken seriously on anything.

              • I don’t know about you, Olly, but writing in that cultural-familial dialect of Ken’s would have become boring after the first comment. I can’t imagine why he continues it.

                • Because he can? Because he knows that it gets under the skin of some who post here.

                  I doubt that he cares if he’s “taken seriously” by the likes of Olly and others.

                  Scroll. Ignore. Laugh. Get a life.

                  • “Gets under the skin…”? Nah. More like it fills up the blog with huge sections of gobbledygook that have to be passed over so that we can read clearly reasoned, cogent responses. This may be news to you, but all of us have lives outside of this blog. Ignoring the TDS so many express here is just one more thing we’ve adjusted to as we continue to give thanks the Borg Queen doesn’t occupy the Oval Office and the Dims on the coasts continue to eat their own. May 2018 continue to be as richly rewarding in that regard as 2017!

                    • Those coastal elites in Virginia and Alabama gave the democrats some big wins. Both states have coastlines. 🙂

                    • Hmmm, OK, I’ll bite. VA–you talking Gov.-elect Northam as a huge win for Dems? Have you looked at the history of the VA governorship? They’ve only had 6 (R) governors since 1874. The state has historically been ruled by northern Democrats. And the majority of NoVA residents were on the govt payroll when I lived there, and that’s only gotten worse with time, so their voting patterns are hardly surprising. As for state legislature being a huge Dem win, the balance of power in the House of Delegates remains to be seen, apparently. I wouldn’t consider drawing straws to see who gets the seat to be a huge cause for celebration.

                      And the Moore loss? Let’s see, a remarkably flawed candidate in a non-swing state comes within 1.5% of the total votes of his opposition after a huge national attack campaign and no support from his own party leaders. That’s a big win to you? Well, that is certainly the Dem party line, but, it’s all weak tea. AL voters will have 6 years of dealing with Jones’ high tax, pro-Obama Care, pro-big government approach. We’ll see what happens then.

                    • “…clearly reasoned, cogent responses.” (CCS)

                      LOL. Ken’s responses trump many — if not most — of the comments here.

                      “More like it fills up the blog with huge sections of gobbledygook that have to be passed over so that we can read clearly reasoned, cogent responses.” (CCS)

                      Too bad, so sad. (Scroll. Ignore. That his comments bother anyone is amusing.)

                      And while you may “have a life” CCS — it’s pretty clear that some who post here are married to this blog.

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