Mueller makes reckless move with seizure of Trump transition emails

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J. 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.

For 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.

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