On Saturday evening, we learned that Robert Mueller is in possession of “tens of thousands” of e-mails from the Trump transition.
As Axios first reported, Mueller “obtained the emails from the General Services Administration, the government agency that hosted the transition email system, which had addresses ending in ‘ptt.gov,’ for Presidential Transition Team.”
About an hour later, Fox News reported that Kory Langhofer, an attorney for Trump for America, Inc. wrote a letter to congressional committees insisting that the special counsel had improperly obtained the correspondence.
As soon as the Fox story hit, we noted that it wasn’t at all clear whether Langhofer had a leg to stand on.
Well sure enough, Peter Carr, a spokesman for the Mueller investigation, has responded and the bottom line is this:
When we have obtained emails in the course of our ongoing criminal investigation, we have secured either the account owner’s consent or appropriate criminal process.
There you go. I’m going to go out on a limb here and say Mueller knows what he can and can’t do when it comes to obtaining documents for a criminal investigation. Or, if you want to take a cynical approach, he knows what he can and can’t get away with.
According to the letter to Congress (which you can find embedded below), then-general counsel to the GSA Richard Beckler assured the Trump team that the “campaign owned and controlled” the correspondence. Further, “any requests for the production of PTT records would therefore be routed to [the campaign’s] legal counsel.” Lenny Loewentritt, Deputy Counsel, allegedly heard that assurance.
Ok, so why doesn’t someone ask Beckler? Well, because he is apparently dead. Here are some excerpts from the letter:
It is our understanding that Mr. Beckler was hospitalized and incapacitated in August 2017. Notwithstanding Mr. Beckler’s June 16, 2017 instruction to the Special Counsel’s Office concerning the ownership and control of PTT records, the Special Counsel’s Office, through the Federal Bureau of Investigation (“FBI”), sent to the GSA two requests for the production of PTT materials while Mr. Beckler was hospitalized and unable to supervise legal matters for the GSA. Specifically, on August 23, 2017, the FBI sent a letter (i.e., not a subpoena) to career GSA staff requesting copies of the emails, laptops, cell phones, and other materials associated with nine PTT members responsible for national security and policy matters.
On August 30, 2017, the FBI sent a letter (again, not a subpoena) to career GSA staff requesting such materials for four additional senior PTT members. Career GSA staff, working with Mr. Loewentritt and at the direction of the FBI, immediately produced all the materials requested by the Special Counsel’s Office – without notifying TFA or filtering or redacting privileged material. The materials produced by the GSA to the Special Counsel’s Office therefore included materials protected by the attorney-client privilege, the deliberative process privilege, and the presidential communications privilege. It is our understanding that Mr. Beckler passed away without returning to the GSA, and that career GSA staff (including Mr. Loewentritt) never consulted with or informed Mr. Beckler or his successor of the unauthorized production of PTT materials.
Meanwhile, the GSA itself is disputing Langhofer’s assertions and as it turns out, BuzzFeed interviewed Loewentritt last night. To wit, from their piece:
“Beckler never made that commitment,” he said of the claim that any requests for transition records would be routed to the Trump campaign’s counsel.
Specifically, Loewentritt said, “in using our devices,” transition team members were informed that materials “would not be held back in any law enforcement” actions.
Loewentritt read to BuzzFeed News a series of agreements that anyone had to agree to when using GSA materials during the transition, including that there could be monitoring and auditing of devices and that, “Therefore, no expectation of privacy can be assumed.”
Loewentritt told BuzzFeed News that the GSA initially “suggested a warrant or subpoena” for the materials, but that the Special Counsel’s Office determined the letter route was sufficient.
As to whether the Trump campaign should have been informed of the request, Loewentritt said, “That’s between the Special Counsel and the transition team.”
Ok, so again, it seems pretty clear that this is just another excuse for someone to posture politically in an effort to pile more pressure on Mueller. That is, if you’re looking for some kind of legally viable excuse to shut down the investigation, this ain’t it.
If Mueller didn’t follow the law, a court would suppress the evidence so it couldn’t be used. The reason Trump’s lawyers are writing letters to Congress instead of Mueller or a court is because their legal arguments have no merit. https://t.co/6Vy7jwKcY4
— Renato Mariotti (@renato_mariotti) December 17, 2017
Executive privilege does not apply until you are the executive; these documents are from the transition, before Trump became the executive; QED no executive privilege. Grasping at straws here. https://t.co/7jeRSzzUQZ
— Norm Eisen (@NormEisen) December 17, 2017
I was the Deputy GC of a Transition (Obama-Biden 08). I warned everyone: there is NO expectation of privacy in your transition emails. The clue: emails are "email@example.com." The whining letter from the Trump Transition tacitly admits this: it ends by asking for a legislative fix https://t.co/RfBJPSMmlt
— Norm Eisen (@NormEisen) December 17, 2017
But again, the point here may not be to actually present anything that’s legally valid. Rather, the point here is probably just to inflame tensions with sympathetic GOP lawmakers and in that regard, you can bet it will work.
Here is the full letter from the TFA lawyer…