“Our enemies are innovative and resourceful, and so are we. They never stop thinking about new ways to harm our country and our people, and neither do we.” - George W. Bush

Monday, December 18, 2017

The troubling controversy over a massive seizure of emails by special counsel Robert Mueller from the General Services Administration (GSA)


Mueller makes reckless move with seizure of Trump transition emails

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.

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.

The 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.

51 comments:

  1. Hillary Clinton's emails were the property of the State Department. As the notes of Comey were the property of the FBI and DOJ.

    The central point of that investigation was that those emails and notes should have never been kept outside of the government's control in the first place.

    Requesting those emails from a third source that might have acquired them wasn't illegal or even inappropriate, even if that third source acquired them illegally, though it would bring into question their authenticity. For example, WikiLeaks dropped daily installments of Hillary Clinton campaign manager John Podesta’s hacked emails, exposing the inner workings of the Clinton campaign and its allies.

    The emails of the Trump transition team are not the property of the government, so the government needed to get a warrant to access them. Arguments about probable cause and privilege need to happen before a judge before the private documents are seized.

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    1. Just get a Federal Judge to agree.

      To do that, the aggrieved would have to petition a Federal Judge. The Trump Transition Team is not doing that.

      No Harm - No Foul

      Delete
  2. A leftover from the weekend that deserves some attention, if only because I’m confused about it and hoping legal eagles will read this and set me straight. News broke on Saturday that Bob Mueller had obtained tens of thousands of emails sent by Trump’s transition team during the months between election day and the inauguration.

    ...

    A GSA lawyer, Lenny Loewentritt, told BuzzFeed that everything was on the up and up here for a simple reason: Team Trump was told explicitly that it had no privacy interest in any transition materials.

    The letter [from Trump’s transition team] also makes a specific claim about communication between the government and the campaign — that Richard Beckler, then the general counsel of the GSA, “acknowledged unequivocally to [the Trump campaign’s] legal counsel” in a June 15 discussion that the Trump campaign “owned and controlled” emails, and that “any requests for the production of PTT [Presidential Transition Team] records would therefore be routed to legal counsel for [the Trump campaign].”…

    ...

    Was Mueller entitled to obtain the emails, including the allegedly privileged ones, without a warrant? Former federal prosecutor Renato Mariotti says yes. He allows that it’s odd that Mueller would go to GSA for the emails when he could have gotten them from Trump’s own lawyers. But there may be a reason for that:

    9/ One reason comes to mind. Mueller was concerned that he wouldn’t receive all of the emails if he obtained them from the Trump team. That’s surprising and suggests that he has reason to distrust Trump’s team.

    — Renato Mariotti (@renato_mariotti) December 16, 2017


    Transition Team

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  3. .

    Just a few observations...

    1. Just how seriously Trump's lawyers take their accusations is seen in the fact that they presented their complaints to Congress (a political body) rather than to the Courts (for legal relief).

    2. I haven't checked out the law or the details but I have heard that '.gov' documents have no privilege claim and those are the ones Mueller got from GSA.

    3. Likewise, as noted above, the Trump team seems to have disregarded the GSA warning concerning the documents not being privileged communication.

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  4. What horse shit. I want Hillarys bleach bited emails, that what I want. Mueller seems itching to be fired.

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    1. .

      :o)

      Sorry, no can do.

      It's an immutable law of the universe. Once it be bleached and it be bited it be gone.

      .

      Delete
    2. Well why didn't Trump do that then, the dummie.

      Delete
  5. Your #2 above is excellent. I heard just the opposite, from Joe at the Casino. Who'd you hear from, Mario at The Mafia Barbershop ?

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  6. I heard just the opposite, from Joe at the Casino. Who'd you hear from, Mario at The Older Mafia Barbershop?

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  7. I think if the Democrats get to bleach bit the Republicans should get to do so too along with Jill Stein and Gary Johnson and anyone else. I don't care what the rules are I just demand they apply to everyone !!!

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  8. Go to American Thinker and read "McCabe and Mr. Mueller". The criminal conspiracy of the century.....

    ReplyDelete
  9. .

    8 Winners and 5 Losers With the Trump Tax Plan

    https://www.msn.com/en-us/money/taxes/the-republican-tax-bill-got-worse-now-the-top-1percent-get-83percent-of-the-gains/ar-BBH0aay?li=BBmkt5R&ocid=spartandhp

    Although the Republican tax bill will likely pass this week, it will take months for experts to wade through the 503-page document to fully understand the implications of the many breaks and loopholes buried in the legislation. Here are some of the clear winners and losers so far:
    8 Winners

    1. Big business…
    2. Real estate investors…
    3. Pass-throughs…
    4. Individual taxpayers —until 2026
    5. Wealthy heirs…
    6. Wall Street…
    7. Tax planners…
    8. Supply-side conservatives…

    5 Losers

    1. Most individual taxpayers after 2025…
    2. Top earners in high-tax states…
    3. Workers on payroll…
    4. Doctors and lawyers…
    5. Deficit hawks…

    .

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    1. .

      Trump, Real Estate Investors Get Late-Added Perk in Tax Bill

      Lawmakers scrambling to lock up Republican support for the tax reform bill added a complicated provision late in the process -- one that would provide a multimillion-dollar windfall to real estate investors such as President Donald Trump.

      The change, which would allow real estate businesses to take advantage of a new tax break that’s planned for partnerships, limited liability companies and other so-called “pass-through” businesses, combined elements of House and Senate legislation in a new way. Its beneficiaries are clear, tax experts say, and they include a president who’s said that the tax legislation wouldn’t help him financially.

      “This last-minute provision will significantly benefit the ultra-wealthy real estate investor, including the president and lawmakers on both sides of the aisle, resulting in a timely tax-reduction gift for the holidays,” said Harvey Bezozi, a certified public accountant and the founder of YourFinancialWizard.com...

      =========================

      The revision might also bring tax benefits to several members of Congress, according to financial disclosures they’ve filed that reflect ownership of pass-through firms with real estate holdings. One such lawmaker, Republican Senator Bob Corker of Tennessee, who’d voted against an earlier version of the legislation, said on Friday that he would support the revised legislation.

      Corker said in an interview on Saturday that his change of heart had nothing to do with the added benefit for real estate investors...

      =====================

      Hatch also said he was “disgusted by press reports” that he said had distorted the provision. Senate Majority Whip John Cornyn called initial press reports about the change “completely false and invented” and criticized follow-up coverage...

      =====================

      ‘Cost Me a Fortune’

      Last month, during a speech in St. Charles, Missouri, Trump took pains to tell his audience that the tax-overhaul bill would hurt him personally. “This is going to cost me a fortune, this thing,” he said. “Believe me.”
      [He said.]

      =======================

      I think Trump must be biting his tongue right now given his fondness for hyperbolic superlatives. I mean it must be killing him not being able to publicly claim that he is responsible for the 'The Greatest Ever in US History Reverse-Robin Hood Robbery of the Poor to Further Enrich the Wealthy' that the world has ever seen.

      It remains how long he will be able to hold it in. Perhaps, he is already being honest about it in private with his fellow co-conspirators in the GOP.

      .

      Delete
  10. .

    The Republican tax bill got worse: now the top 1% get 83% of the gains

    https://www.msn.com/en-us/money/taxes/the-republican-tax-bill-got-worse-now-the-top-1percent-get-83percent-of-the-gains/ar-BBH0aay?li=BBmkt5R&ocid=spartandhp


    .

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  11. .

    China Unveils an Ambitious Plan to Curb Climate Change Emissions


    When not denying climate change, Trump ignores it and brags about that fact. China makes money off of it.

    .

    ReplyDelete
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    1. Global Warming is the problem.

      Not 8 billion people shitting up the ecosphere.

      Moron

      Delete
    2. .



      Doug, you sound like a simpleton.

      You should she if you can get on the brain transplant list.

      Moron?

      Anymore, when it comes from you, it's hard to tell if that is a comment or a pen name.

      .

      Delete
    3. .

      You should also see if you can get on that list.


      (Given, your androgynous nature, sometimes it's hard to tell which pronoun to use.)


      :o)

      .

      Delete
    4. .

      Not 8 billion people shitting up the ecosphere.


      Remember, if there is a concern, anyone at anytime can voluntarily help out.

      .

      Delete


    5. When not denying climate change, Trump ignores it and brags about that fact. China makes money off of it.

      .


      The US, by buying Chinese products, manufactured with a high energy input, has been financing Chinese pollution for thirty years. A week in and southern Chinese city

      FYI:

      A list of the most polluted world cities by particulates. Guess where the first US city appears?

      Delete
    6. The US, by buying Chinese products, manufactured with a high energy input, has been financing Chinese pollution for thirty years. A week in and southern Chinese city

      Try a week in any southern Chinese city.

      Delete
    7. Everyone talk about what an eco- paradise Costa Rica is. The facts are quite different from the hype. The virtual nonexistence of wastewater treatment in Costa Rica’s urban areas, especially San Jose means rivers carry contaminated water through densely populated urban areas and end up on the beaches and in the ocean. it is next to impossible to find a Costa Rican beach not covered in plastics washed there by the toxic rivers.

      New Jersey and New York beaches and rivers are far cleaner. Trump is right.

      Delete
    8. .

      FYI?

      Been there. Done that.

      Go to Beijing, you can see the pollution. Walk in Shanghai, you are immediately affected by it. Visit the small towns (there are a few) in rural China and you see its not just air pollution affecting the population there.

      However, the point is, where Trump sees a talking point, China sees a commercial opportunity. For years, China has dominated the solar equipment manufacturing business. China has a policy to lead the world in solar and alternate fuel vehicles. It's becoming increasingly hard there for any new manufacturing to be done using fossil fuels.

      Climate change is another area where another country is seeking to take a leadership role in the world while Trump surrenders the field and withdraws the US from that leadership role.

      Trump is leading the US to a diminishing role in the world. We are at 4% unemployment. Employers are complaining they can't get enough 'qualified' workers for millions of positions. Trump's budget and tax plan cuts education funds, cuts skills training, cuts business investment for training, cuts H1B visas for technical people, cuts R&D funding, cuts science grants, heck, the man is trying in his Luddite frenzy to even eliminate the term 'science-based'.

      It's one thing to reduce (or eliminate) US military intervention in other countries, it is an entirely different thing to willingly give up our position of world leadership across the board.

      .

      Delete
    9. .

      Good heavens, now we are comparing Costa Rica, a developing country, with one of the richest nations in the world?


      New Jersey and New York beaches and rivers are far cleaner. Trump is right.

      You When I was growing up Lake Erie was a dead sea. A river in Ohio actually caught on fire. The fish is the great lakes were grotesque and deformed because of pollution. Pregnant women couldn't eat the fish due to mercury poisoning.

      It took decades and a combined effort and agreement (Great Lakes Restoration Initiative - GLRI) between the federal (15 agencies) and state (those surrounding the Great Lakes) governments and Canada Provinces. The GLRI was extended in 2016. Funding for this initiative is questionable in 2017. Trump has gutted the EPA, cutting funding by 30% and implementing corresponding cuts in personnel. In addition, the GOP will be looking for additional cuts where they can get them to pay for their tax cuts for the rich. GLRI is one of the targeted programs.

      Trump's ill-advised campaign promised to save jobs in a dying industry. His cure? To cut clean water regulations associated with coal and air pollution regulations associated with power plants.

      New York and New Jersey rivers and beaches? Let's talk about them once Trump has done his thing. Remember, New York is part of GLRI.

      .

      Delete
    10. .

      Nature abhors a vacuum.

      As the US withdraws its leadership on the world stage others will replace it, Russia in the ME and China in the rest of the world.

      .

      Delete
    11. And you favor this ?

      Delete
    12. .

      Why would you even think that?

      Get a clue, son.

      .

      Delete
  12. .

    Russia on Monday said it was ready to become “an honest mediator” between the Israelis and Palestinians, a role the United States has played for years, after a vote at the UN Security Council showed the depth of global opposition to US recognition of Jerusalem.


    https://www.timesofisrael.com/after-unsc-vote-russia-offers-to-replace-us-as-honest-mideast-mediator/

    .

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  13. .

    Trump Judicial Nominees


    Why a Louisiana GOP senator keeps bringing down Trump judicial nominees

    Sen. John Neely Kennedy complained that the White House was ignoring his concerns about the subpar quality of President Trump’s picks. Now that he has helped torpedo three of those would-be judges in just the past week, they’re paying attention...


    .

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  14. Doug Tue Dec 19, 02:15:00 AM EST

    The unsecured server was there, the law was there, the FBI was there, and nothing happened.

    ...but I repeat myself.

    No proof of corruption there, in QuirkWorld.

    ReplyDelete
    Replies
    1. Actually, a lot happened. She ended up getting a slap on the wrist for running classified stuff through the personal server.

      Delete
    2. This comment has been removed by the author.

      Delete
    3. In dougo world running a personal email server is equivalent to colluding with a hostile foreign power to commit illegal acts.

      Delete

    4. When all there is sucks ...

      One would think President Hoover's back in the White House.

      Delete
    5. .

      Doug doesn't care what Trump does. He simply cares when others point out what Trump does.


      .

      Delete
    6. Ash, that is exactly what the witch did I think you must be suffering from Canadian Frozen Brain.

      Delete
  15. .

    UFOs

    Given the recent stories on the Pentagon's UFO study, if Trump really wanted to be unique among presidents, he could start out small and release the info the government has on UFO's.


    .

    ReplyDelete
    Replies
    1. Good idea. Home run ! Art Bell approves and so do George Noory and my wife and I.

      Delete
  16. .

    An Observation


    Tonight, the Senate will likely pass the GOP tax plan on a straight partisan vote. Tomorrow, the House will re-vote the final bill and pass it on a straight partisan vote. Trump will likely sign it into law by Friday.

    The GOP proves once again that they consider their base including the evangelicals exactly like the Dems consider their base, the blacks and the poor. With disdain.

    They are all dicks.

    .

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  17. What is this I read about Quirk getting a brain transplant ? Will it be a same species transfer or is the idea to try something new like a fourth of an elephant brain perhaps ? Maybe ten crow brains linked together ? Crows are smart. I'd have Dr Ben Carson do the work, if I could make the recommendation, as I am always looking out for Quick.

    ReplyDelete
    Replies
    1. I could ask Wayne to donate a cow brain. He would probably chip that in if I asked, so there's some money saved right there.

      Delete
    2. Crows use tools ! Dr Carson wedges in 29 crow brains and my friend wires up the information flows and Quirks noggin will be set to make eggnogs and spirits for Christmas !! He might even be able to change his own oil in his truck!! Talk about a Merry Christmas !!!

      Delete
  18. The Las Vegas shooter was a terrorist. Confirmed on Coast To Coast radio show last night my better half informs me. This explains the news black out too, she says.

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  19. Quirk I've talked with both Dr Carson and friend. Since I supported him in the campaign Dr Carson is to do his part for free and my friend cause she likes me is willing to wire your flows for free too !! You have to provide the crow brains and I'm giving you my Christmas Special of 5K arrangements fee !! Merry Christmas !!!+9

    ReplyDelete
  20. South Carolina's capital on Tuesday could become the first U.S. city to ban the use of bump stocks, a gun accessory that has drawn national scrutiny after being found among the Las Vegas mass shooter's arsenal of weapons in the October rampage.

    ...

    The mayor, who has a background in law enforcement and said he owns guns, said the measure had drawn support from local police and council members who support the Second Amendment to the U.S. Constitution protecting gun ownership rights.

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  21. There's a lot more to that UFO story than was published in the NYT Read the article at HOT AIR

    ReplyDelete
  22. Politics On A Grecian Urn.....
    at American Thinker is good. Quirk hasn't learned much from aging. He is so Never Trump if he doesn't watch himself he might turn Antifa and make an even larger fool of himself It's a good thing I have arthritis in my middle finger.

    ReplyDelete
  23. Whistleblowers Line Up To Accuse Mueller of Lying to the. Senate and Surveiling Trump.....see Big League Politics

    ReplyDelete