Yesterday, 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.