Over last weekend, we learned that goons working for the special counsel obtained from the General Services Administration some tens of thousands of emails belonging to the Trump transition team. Some number of those emails would have been considered privileged had the special counsel gotten them the old-fashioned way: by requesting them from the general counsel of the Trump transition team.
There are two parts to this equation. What Mueller did and what he didn’t do.
What he didn’t do was break the law. That was the first line of the screeching anti-Trump harpies as if lack of illegality makes an action proper. If you think that is a fact, tell your spouse that you just slept with someone else. It the never Trumpers are right, your spouse won’t care because you didn’t break the law. Here is a rundown of the legal issues. In a nutshell, court decisions are pretty much uniform in protecting attorney client privilege and the idea that you lose expectation of privacy by using a federal email server is so bizarre as to defy reason.
This problem is compounded because the Transition team emails are, by law, private correspondence.
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.
Once Mueller had the emails he had an obligation to protect privileged conversations from investigators. He didn’t.
This brings us to what Mueller did. Andy McCarthy at National Review has a very good take on this. Mueller’s Scorched-Earth Tactics . . . Again.
The main issue here is not whether Mueller had the legal power to request that GSA, the third-party custodian, voluntarily turn over all the PTT records to the special-counsel investigation. It is also not whether GSA had the authority to comply with the request. The real question is why did Mueller choose to proceed in this sneaky manner?
Mueller’s staff could easily have contacted President Trump’s legal team and/or TFA and explained what categories of documents it wanted to examine. In all probability, Trump and TFA lawyers would have conceded that there were documents Mueller was entitled to review, but would have held back a great deal of material as arguably privileged. Then, as in the normal course, if the prosecutor wanted to press the issue, Mueller could have issued a grand-jury subpoena and the two sides could have hashed out their differences, with the intervention of the judge supervising the grand jury — a judge who, as we’ve previously pointed out, seems highly sympathetic to the investigation of Trump’s campaign.
…Yet here again we see Mueller’s team, rather than working out a careful legal arrangement with lawyers for the witnesses to guard against tainting their investigation, using the bully approach — because, they reckon, they can. Consequently, we have a mess where we shouldn’t even have an issue. The Trump camp is now claiming Mueller, in addition to refraining from giving the Trump lawyers a heads-up about the request for transition materials, failed to set up rudimentary guard rails — such as a “taint team” to pre-screen the materials and make certain Mueller’s investigators were walled off from anything privileged that they should not have examined (a lapse that could eventually lead to defense motions to suppress evidence and dismiss charges).
Second, I often think that in their disdain for Trump, Democrats and some members of Mueller’s staff have convinced themselves that this situation is sui generis — i.e., because there’s never been any phenomenon like Trump, there is no need for worry that their aggressive tactics will have any precedential effect on future presidencies or presidential transitions. But they are wrong. The less it appears there is any criminal “there” there, the more this investigation becomes a criminalizing of politics. Why would the kind of solid people you’d like to see in government agree to serve if the price is crushing lawyer’s fees and the stigma of criminal suspicion — based, so far as I can tell, on precious little evidence of crime.
What we’re seeing with Mueller’s actions is an exercise of raw power. He does things for the same reason a dog licks its privates: because it can. He is acting the role of thug and bully because he knows he can’t be fired and that Rod Rosenstein is too weak to rein him in. He’s acting this way because you don’t hire a majority of your staff from the universe of rabid Democrat operatives because you want a fair proceeding.
In the end, this is going to play into Trump’s hands. Right now it is better than even money that Mike Flynn is pardoned. If Flynn is pardoned, Manafort will more likely than not be pardoned also. And Mueller’s thuggery and overreach will have justified that action for a large plurality, if not a majority, of the nation.