Mueller, emails, presidential transition team, general services administration, PTT, GSA, Trump

But, But, Their Emails!

By Grace Lidia Suarez

The latest kerfuffle involving emails (electronic communications will be the death of us) involves the General Services Administration (GSA), Special Counsel Robert Mueller III, and the Presidential Transition Team (PTT, TFA). It seems PTT was storing its emails on a GSA server. This was perfectly aboveboard.

Mueller requested the emails from GSA and GSA turned over thousands. His team apparently used the contents of those emails to question various members of the Trump team. Several months later, Mueller requested the same emails from TFA. TFA gave Mueller a portion of those emails.

TFA eventually discovered Mueller had them all and, to use legal terminology, went bananas. Counsel for TFA Kory Langhofer wrote a letter to Congress complaining bitterly about the “unauthorized” review of the emails by Mueller.

The first thing that struck me is that he wrote to Congress. If in fact the review was unauthorized, it seems the logical thing to do is file a motion for return of property in federal court. What can Congress do? Also interesting is that what Langhofer is asking for is prospective relief on behalf of future presidents. What a nice guy.

This seems a strange tactic, almost as if he knew he doesn’t have a legal leg to stand on.

Paul Rosenzweig agrees.

General Counsel is dead. Deputy General Counsel denies this. Apparently no record exists of this very important conversation.

Leaving that alleged dispensation aside, there is the interesting question whether the emails were protected under some provision of law.

Could TFA invoke executive privilege?

One court has said no.

Defendant’s argument for withholding the photographed document under the executive privilege is unpersuasive. First, Secretary Kobach’s communication was made to a president-elect, not to a sitting president. Although a president-elect by statute and policy may be accorded security briefings and other transitional prerogatives, he or she has no constitutional power to make any decisions on behalf of the Executive Branch. No court has recognized the applicability of the executive privilege to communications made before a president takes office. If that were the law, it would mean that potentially almost everything communicated to a president-elect by the hundreds of persons seeking appointments in the new administration would be shielded by privilege. Fish v. Kobach.

In any event, only the holder, Donald Trump, could do so.

Are the emails protected by the attorney-client privilege?

Maybe some are communications seeking advice, made to a lawyer. But all of them? Highly unlikely.

As the Fish court put it

Because this litigation arises out of a federal statutory scheme, federal law governs the application of the attorney-client privilege. Under federal common law, the essential elements of the attorney-client privilege are: (1) where legal advice of any kind is sought (2) from a professional legal advisor in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal advisor, (8) except if the protection is waived. Although this description suggests that the privilege only operates to protect a client’s communications to a lawyer, the Tenth Circuit recognizes that a lawyer’s communication to a client is also protected if it is “related to the rendition of legal services and advice.” “A party claiming the attorney-client privilege must prove its applicability, which is narrowly construed.”

Was the receipt of the emails unlawful under the Fourth Amendment?

Generally speaking, a person does not have a reasonable expectation of privacy in records stored with a third party absent a specific agreement, and therefore has no standing to complain if the third party voluntarily turns them over to law enforcement.

Here’s a typical warning when accessing a government computer system:

 

The bottom line is that the Presidential Transition Team does not appear to have grounds to demand the return of the emails. Which is probably why counsel is complaining to Congress, which can’t help Trump retroactively, and not racing to the courthouse.

Perhaps politicians should heed the words of Martin Michael Lomasney:

“Don’t write when you can talk; don’t talk when you can nod your head.”

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