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. The article mentions J. Edgar Hoover at the outset but glosses over. The FBI has a horrible history.

    J. Edgar Hoover probably killed JFK and certainly MLK and probably Bobby Kennedy. His minions are all over.

    James Earl Ray’s brother has a book out which you can get on Amazon with the title The Truth At Last or somesuch name. It is very interesting. I read the hard copy and mailed it off to a friend.

  2. Great Britain, France, Canada, Germany, Australia, and the free world……If you’re listening please hack Donald Trump’s e-mails.

  3. “THE FBI ROUTINELY ABUSES ITS POWERS BUT THE TRUMP INVESTIGATION HAS BEEN BY THE BOOK”

    by Trevor Aaronson

    December 19 2017, 12:14 p.m.

    https://theintercept.com/2017/12/19/fbi-trump-russia-investigation-mueller/

    “A lawyer for Trump criticized Mueller for obtaining transition team emails that had been stored on servers administered by the General Services Administration. If Mueller requested the emails from the GSA, under one of the many legal authorities he possesses as special counsel, and GSA employees in turn provided those emails, this would appear to be a fairly benign and legal way for the FBI to obtain information.

    “Under FBI rules, Mueller and his team have much more invasive ways to obtain information. Let’s say Mueller’s investigators think a former Trump adviser would make a good informant. FBI agents can use a Type 5 assessment to surveil the former adviser and even root through the former adviser’s trash for 72 hours in order to find information they can use to leverage cooperation. Imagine the outcry if this had indeed been done. And understand that the FBI has done this many, many times in a variety of other investigations over the years — without a hint of protest from the right wing.

    “If the FBI’s tactics in the Mueller investigation seem overly aggressive or partisan, you just haven’t been paying attention to the FBI. America’s secret police has the legal authority to be much more intrusive.”

    1. Very unfortunate that The Intercept has been corrupted – or pulled back by the spooks? Unmasking Reality Winner was the first clue. Only reporters left there with journalistic integrity are Glenn Greenwald & Lee Fang imo

      1. Look at who writes their checks. I read everything online with a grain of salt–TI included.
        The title of the article is hysterical. Translation: “The FBI has been egregiously heavy-handed for years, but now you can trust them to do the right thing.”

      1. Additional “key points” from swarthmoremom’s link:

        “Republicans are suddenly upset about the FBI invading homes and surveilling citizens. Civil rights groups have complained about this for 50 years.”

        Coming up for a vote any day now:

        https://www.eff.org/702-spying

    1. when Assange comes to the USA, Mueller will eagerly send people to interview him

  4. Not having a court-ordered subpoena indicates Mueller is still fishing. You got to hand it to progressives and their ubiquitous abuse of power; they just never think that it will ever be used against them. Tick, Tick, Tick…

    all experience hath shewn that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.

    Don’t believe it will happen? What are the odds progressives are more intelligent than the framers that put this thing together? That’s why it will happen.

    1. At Alternet, there’s a 10 question quiz, “Who said It”. The choice is between a classic Christmas villain like Scrooge or a Repub.

    1. Da people that live here all day livelihoods depend on da spreading of da FoxPravda lies.

  5. so it’s ok for the FBI to seize the transition emails but the couldn’t be bothered with HRC’s – took Corowdstrike’s word – nothing to see here move along. Tried to block Judicial Watch from obtaining them using the reasoning that the public wasn’t interested. Well, there are plenty of people who are very interested and we would like to see a special investigation

  6. One unexpected benefit of Mueller’s approach is that it should help make the Obama transition records and documents available via public records requests. It would be interesting to see if there was any collusion on Obama’s part with Iran (it would certainly help explain the extraordinary actions taken, adverse to America’s interests, to swing the Iranian agreement) and with our old friend, Putin (“tell Vlad I’ll have more flexibility after the election” — easily the most traitorous statement since Benedict Arnold asked for payment from the Brits).

    1. Tom re “One unexpected benefit of Mueller’s approach is that it should help make the Obama transition records and documents available via public records requests”

      Dream on! Obama jailed more whistleblowers than any other president, Moved documents pertaining to Susan Rice’s unmasking to his library — unavailable for 5 years!!

  7. The first thought that comes to mind is Fruit Of The Poisoned Tree. Second thought is Do it and apologize later. Third thought is ‘the Supreme Court hasn’t visited that area yet. Fourth is Rogue lawyers should have their day in court as ‘defendents.’ Hillary’s missingf 40,000? If I remember correctly they were destroyed ….by Hillary.

  8. Why is it that Democrats (and now Mueller) believe that their (fantasy) Ends justify ANY Means?

    I was appalled at the treatment of Paul Manafort, a cooperating witness, and continue to be appalled at the ridiculous and in my point, unconsitutional, requirements of his absurd bail treatment.

    And then to essentially coerce Gen. Flynn into false testimony for something that WAS NOT A CRIME and then charge him with no crime but lying under oath.

    Of course, now compare the wily and devious Dems Hilary, Cheryl Mills, Huma who were allowed to destroy documents and devices, give testimony NOT under oath (and lie over and over) and even be given an NDA. What the heck is going on???

    There is no blind lady justice while the Dems are around and while the Press acts as Monkey No See, No Hear and No Say.

  9. This investigation is falling apart over heavy-handedness, partisanship, leaks, and plain sloppiness. It should since it was founded on a lie (the Steele dossier), promoted by a discredited FBI chief (Comey), and used a weapon to overturn a democratic election. In pace requiescat.

      1. No, we’ll some cracker crumb indictments to save face like lying to the FBI, FARA violations and spitting in a parking circle at the VA Hospital. That kind of money justifying stuff.

        1. It’s my opinion, and time will tell, that Flynn was charged lightly because of the testimony he’s offering. We’ll see if Kushner and Don, Jr. fare as well or are willing to trade in somebody higher up the food chain?

          1. The witnesses/defendants don’t have anything to trade. If they did, the feds would overcharge them and then let them plead to lesser crimes with an offer of sentencing recommendation. That’s how they handled the mob prosecutions and Mueller isn’t particularly creative.

            1. We will see. Or we won’t see and it will happen behind closed doors. I hope whatever comes, happens in public as there are those predisposed to disbelieve anything.

  10. Another panel to investigate Mueller and his team is now in order. Who (and others) that signed off authorizing the group;where is the funding coming from;who is specifically paying for their space,computers,telephone service,utilities;under what government regulation/authority allowed the formation of the group;names of those in the group already receiving some type/s of government funds;have they been sworn in as government employees; have they (the entire group) been given a background check;etc.

  11. Think of the Trump Transition Team’s records as garbage left at the curb for curbside pick-up. No expectation of privacy for private records left in plain sight equals no executive privilege for public records left in plain sight. Besides, Mueller sent a letter to the GSA politely asking for the materials at issue. Might Turley be zealously representing his Congressional clients again? Can you say billable hours?

    But what was Mueller looking for? Well . . . They say that Presidential Transitions operate like Job Fairs. Don’t they?

    1. You are one smart lady. Most here spout da Kremlin anti Mueller propaganda but you look at da facts.

      1. Ken, as I’m sure you know, the very word “facts” is a registered trademark of The MAGA cult. We’re not allowed to use the word “facts” without paying a licensing and branding fee to The Lecher-In-Chief, Don Juan di Mar-A-Lago. They’ll sic Michael D. Cohen on us if we do, ya know. Shhhhh. Ixnay on da actsfay.

    2. They weren’t left at the curbside nor were they destroyed. and from some sources the letter was not polite but a demand. Where did we get all these Seig Heilers from and that’s the best that could be found? Been cheaper just to use a drumhead kangaroo court.

      1. Natalia Veselnitskaya offered Trump Jr., Kushner and Manafort a list of charges to be brought against four US citizens for crimes against the United States based upon evidence fabricated by the Kremlin. That’s Vladimir Putin of The Russian Federation telling Trump to throw US citizens in jail the same way Vlad would do in his own[ed] country. And that’s the Sovereignty of The United States of America being negotiated over at a meeting between Trump campaign officials and Kremlin apparatchiks.

        Your allegiance to our beloved Constitutional Republic is suspect, Closed Parentheses.

  12. Could all this be “smoke and mirrors?” Could this, in fact, be a masterstroke on the part of Mueller to appear to have overacted by introducing a “poison pill” to assure that the process continues to its end with the culprit or someone ultimately brought to trial, only to have the conviction nullified for the reason stated by the professor, a la Oliver North’s case? In the end, the process has been served, the letter of the law has been upheld, the vocal audience has been appeased, and nobody got ‘hurt?” We all go home and praise ‘justice,’ and the culprit writes a best-seller and goes on tour?

    1. I’ve heard the concern by several authors in their own way of saying, “evidence that could contaminate much of his investigation in any later trial.” If the goal is to convict Trump, the trial will take place in Congress. And none of those a-holes care about how the evidence was collected.

  13. Here’s a musing music video to bring one’s thoughts to center. There’s still a world out there folks.

  14. I don’t think that Mueller has any intention to bring a legal case. Considering the fact that collusion is not a crime in itself, and seeing how memebers of his team have acted, it is clear to me that this is part of a silent coup.
    It is sad that politics have come to this. If it is not nipped i the bud, we are on the road to an extended period of instability.

    1. If wishes were candy and nuts, it would be Christmas every day. I’m willing to bet that Manafort, Papadopoulos and especially Flynn fervently desire that your wishes were true. Alas, facts…

      This is to “I’ll just click my heels and mean ole mueller will just go away” ti317

      1. Marky Mark Mark – If I were Flynn, I would be hanging on the hope that the President has not ruled out a pardon for him. If he rolls on someone, that hope probably no longer exists. Are you sure you went to law school?

        As for Mueller, he has no right to those records and as such would never to able to prove that he did not find something there illegally that he relied on later. At this point, even Flynn’s guilty plea is at risk for him. The GSA had no right to turn over those records without authorization. The Deep State at work again.

        1. Paul, it’s funny that you should mention “hope.” Hope Hicks remains a common thread running through The Trump Organization, The Trump Transition Team and The Trump Adminstration’s White House Communications Office. If it’s true that Presidential transitions operate in the manner of Job Fairs, then Mueller might be hoping that Ms. Hicks left a few emails in the transition records on the general subjects of Carter Page and George Papadopoulos et al. .

        2. If I were Flynn, I’d wish any pardon from Trump would cover State prosecutions and that Mueller wasn’t working hand in hand with the New York Attorney General (whose jurisdiction covers most financial crimes of the type Flynn is speculated to have engaged in) and ready to turn over all he’s got for immediate prosecution of Flynn and his son.

          1. enigma – all Trump can do it pardon federal crimes or potential crimes. Flynn will just have to move someplace that doesn’t extradite to NY.

            1. Rick Scott in Florida might protect him. His Attorney General Pam Biondi has already taken $25,000 from Trump to drop the Trump University case. In for a penny…

    2. wow, but that is a wild and patently ridiculous bit of oddball speculation, ti.

      why on Earth wouldn’t there be criminal prosecutions brought, especially given that the office has already gotten guilty pleas and plea agreements?

      1. The tax bill serves as the Kremlin’s icing. They’re laughing at the stupidity of half of American voters who elected Trump.
        6000 lobbyists worked the tax bill through Congress and the Koch’s got what they wanted- an American oligarchy to rival the Russian oligarchy.

        1. Da Russian people live poorly as Putin and da oligarchs have taken the country’s wealth. Money in da USA will flow from da bottom to the top in da same manner.

    1. enigma – until push comes to shove, it is all speculation. What do you do with 40,000 records? What do you do when you have violated attorney-client privilege? How do you prove you are relying on illegally gotten goods for your information? Can you prove you didn’t violate attorney-client privilege? Do you actually have the rights to those records?

      You don’t suppose they would like to seize the missing 40,000 Hillary emails and release them do you? State Dept is really slow.

      1. Two different areas, what Turley wrote about was to assume that subpoenas and warrants weren’t used, he injected names like Andrew Weissmann and went on to suggest what he may have done. He assumed no controls whatsoever and went on to extrapolate on his hypothesis and suggest illegalities and tainted evidence.
        What I believe Mueller would have done is to get a legal opinion on how to obtain the evidence, established rules to keep from violating attorney-client privilege (which probably wouldn’t cover conversations between two non-attorneys like Trump and Junior like Junior claimed in his testimony to a House subcommittee). That could start by removing e-mails between an attorney and his client and no third party in the heading. Watching Perry Mason and Law & Order assures me that if a third party was included, it voids the privilege.
        You seem not to trust the ability of the Justice Department to properly handle materials as opposed to the Trump administration which has demonstrably lied about every contact with Russia for example since Day 1.
        You suggested Hillary’s e-mails be released which is much different than them being reviewed but I’m all for it. Of course, I’d like to see the Trump Administration’s e-mails released along with Donald’s tax returns (like every other modern day President) but that’s just wishful thinking.

            1. enigma – you seem to have thrown Perry Mason and Law & Order in as your call to authority about your knowledge of criminal law. 😉

    2. Why speculate when facts are plentiful. Collusion isn’t a crime. Intent is not an element of 18 798. Mewler will collect another million in fees as will his croneys. And then: “Are conclusion is under the law Collusion is not a crime. 18-798 does not have the element of intent. so it was not pursued.”

      1. Conspiracy is a crime, I’m satisfied based on what we already know that there’s plenty of that. Throw in a little Obstruction of Justice, Money Laundering, Fraud, violations of the Hatch and Logan acts, other financial crimes and Treason, we just might start getting into serious crimes. Of course, I’m forgetting Perjury and Lying to the FBI.

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