Career staff members at the agency “unlawfully produced TFA’s private materials, including privileged communications, to the Special Counsel’s Office,” according to the letter, a copy of which was seen by Reuters. It said the materials included “tens of thousands of emails.”
Trump’s transition team used facilities of the GSA, which helps manage the U.S. government bureaucracy, in the period between the Republican’s November presidential election victory and his inauguration in January.
The Trump team’s accusation adds to the growing friction between the president’s supporters and Mueller’s office as it investigates whether Russia interfered in the election and if Trump or anyone on his team colluded with Moscow.
“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,” said Peter Carr, spokesman for the special counsel’s office.
There are three possible explanations for the special counsel's claim.
- The first would be that they got the permission from the Trump transition team to take the emails. Obviously they didn't.
- The second was that they got some sort of warrant. But certainly the Trump team would have been served with or otherwise made aware of such a warrant.
- The third is that the Mueller team made the distinction that the emails were under the "ownership" of the GSA, rather than owned by the Trump transition team... and therefor requested and received all of the Trump transition emails without notifying the Trump team (or any of the Trump attorneys) that they had received them.
But it seems unlikely that it's legal to obtain electronic information behind the back of the person or people who wrote the electronic correspondences, especially if those emails would contain privileged information (attorney/client, etc). Mueller and team might try to argue that executive privilege does not extend to President elects, but unless there is already legal precedent, such an argument should have gone before a Judge.
Furthermore, if fourth amendment rights extend to what a person keeps in a rented apartment (and it does), then those same privileges would extent to communications that are housed on a rented (or contracted) server. Just as the police or investigator cannot simply ask the owner for permission to search a rented apartment, you cannot simply ask the person housing electronic communications to turn them over.
UPDATE: The issue is that Mueller went directly to the GSA (and ignored the PTT) in grabbing the information... and did so against the legal advice of the GSA General Counsel. GSA's own General Counsel made a determination that the emails belonged to Trump for American (transition team) and had notified Special Counsel of such. Here is a letter from attorney Korey Langhoffer to the Senate oversight committee:
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UPDATE: The issue is that Mueller went directly to the GSA (and ignored the PTT) in grabbing the information... and did so against the legal advice of the GSA General Counsel. GSA's own General Counsel made a determination that the emails belonged to Trump for American (transition team) and had notified Special Counsel of such. Here is a letter from attorney Korey Langhoffer to the Senate oversight committee:
In order to comply with congressional document production requests, TFA ordered from the GSA electronic copies of all PTT emails and other data. Career GSA staff initially expressed concern that providing copies of PTT emails to TFA might violate a document preservation request that the GSA had received from the Special Counsel’s Office. This issue was resolved decisively on June 15, 2017 after a series of emails and telephone calls between TFA’s legal counsel and Richard Beckler and Lenny Loewentritt, the newly appointed General Counsel for the GSA and the career Deputy General Counsel for the GSA, respectively. After discussion and consideration of the issue, Mr. Beckler acknowledged unequivocally to TFA’s legal counsel, in the presence of Mr. Loewentritt, that TFA owned and controlled the PTT emails and data pursuant to the Presidential Transition Act, and that the GSA had no right to access or control the records but was simply serving as TFA’s records custodian. Mr. Beckler assured legal counsel for TFA, again in the presence of Mr. Loewentritt, that any requests for the production of PTT records would therefore be routed to legal counsel for TFA. In the meantime, Mr. Beckler agreed to maintain all computer equipment in a secure, locked space within GSA facilities. There are multiple surviving witnesses to this conversation, including me.
Additionally, we understand that the following day, June 16, 2017, Mr. Beckler personally informed the Special Counsel’s Office that PTT records are not owned or controlled by the GSA, and that the Special Counsel’s Office should communicate with TFA if it desired to obtain PTT records.
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.
The unauthorized production of PTT materials by career GSA staff violates (a) the GSA’s duties to TFA pursuant to the GSA’s previous acknowledgement concerning TFA’s rightful ownership and control of PTT materials; (b) the statute requiring the GSA to “ensure that any computers or communications services provided to an eligible candidate . . . are secure,” 3 U.S.C. § 102 note 3(h)(2)(B)(ii); and (c) the Fourth Amendment’s prohibition on a government actor (e.g., Mr. Loewentritt), or a private actor working at the request of a government official, failing to obtain a warrant for the search of seizure of private property in which the owner has a reasonable expectation of privacy, see Coolidge v. New Hampshire, 403 U.S. 443, 489 (1971).
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More to the point, with all the other questions that have been raised over the objectivity and problems with the Mueller probe, it would have been a bone head move to pull something like this today. It only provides the Administration and other Mueller critics with ammunition for their claims that his probe is biased, out of control, and basically an investigation in search of a crime.
Unless of course, Mueller lives in such a bubble, that he doesn't see it?
30 comments:
Or another possibility: the "Trump Team" is lying again. Which is what practically everyone who doesn't consider unsubstantiated allegations from "Trump's allies" to be credible "questions about Mueller's reputation and objectivity". Let's see, people who you already know are not objective, and are not very believable, are making accusations ...
Really, that's kind of dumb on the face of it. Even if true, it wouldn't bring into question his objectivity. Reputation, maybe, maybe not. It sounds like desperation to me.
obviously grounds for impeachment:
MOSCOW — President Vladimir V. Putin called President Trump on Sunday to thank him for the work of the Central Intelligence Agency in helping prevent an Islamic State attack in the northern Russian city of St. Petersburg.
[...]
During the call, Mr. Putin assured Mr. Trump that Russian intelligence agencies would similarly share information about terrorist threats to the United States, the Kremlin statement said.
https://www.nytimes.com/2017/12/17/world/europe/putin-trump-cia-terrorism.html
trump actually, get this, spoke to, get this, putin, get this, on the PHONE.
SEIZE HIM!!!11!
Now you have done it RRB. YOU proved the collusion the left has not.
Obama "told" Putin to " cut it out" when it came to Russian interference in US Elections and The One said US Elections were not tampered with, that was pre-Nov 8th,2016.
Why does the left not believe THE ONE?
Or another possibility: the "Trump Team" is lying again.
Mueller's team confirmed that they had the e-mail in their possession. So no, that's not a possibility.
Mueller's theory is that the federal government owns the emails in the same way an employer own the emails of employees using their email system.
That's a rather dicy argument to make considering the "owner" in both instances is Donald Trump as president-elect and later president of the United States.
There no reason why Mueller's could not have obtained a subpoena if this was a legitimate investigation.
considering the "owner" in both instances is Donald Trump as president-elect and later
So you are claiming Trump, owns the gvmt servers and has the exclusive rights to them....BTW, mueller has said they were obtained via permission or legally by proper channels. Who to believe, the constant lies of the trump side or Mueller who does things by the book and the only thing you got is yelling it is illegal. I really doubt mueller would do anything to jeopardize his work by circumventing the system like you would....
Mueller's theory is that the federal government owns the emails in the same way an employer own the emails of employees using their email system.
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well, if mueller would like to remain consistent, then the comey memo that comey wrote BEFORE trump fired his corrupt ass is also the property of the gov't. and giving a copy of it to his law school prof buddy? also illegal.
if mueller is interested in regaining a little credibility during this fiasco, then he might start by the equal application of the law.
gov't. and giving a copy of it to his law school prof buddy? also illegal.
No it is not illegal...idiot
Good morning oPie .
Yes Dennis, it is. The sharing a classified information with unauthorized personnel violated the espionage act.
Opie - the Government owns and pays for the phone system that the executive branch uses. But law enforcement still need to get a warrant to listen in on those conversations. Just as law enforcement has to get a warrant to listen in on conversations, or subpoena phone records of a private citizen from a provider.
Moreover..
Just as legal precedent suggests that the apartment renter still has fourth amendment rights even though someone else owns the building, those individuals would have fourth amendment rights (as it pertains to conversations and correspondences) even though someone else owns the hardware and storage that is used to house the data.
The FBI can certain police their own "employees" by looking at their phone records, and email chains that were done on work property, just as a private company could do the same thing.
But neither the FBI or the CIA or any other law enforcement branch has the absolute power to spy on or simply take information from other agencies and parts of the Government, by simply offering that everything being used to communicate is under Government ownership.
We don't have a Gestapo Opie, and I am pretty certain nobody wants one.
But law enforcement still need to get a warrant to listen in on those conversations. Just as law enforcement has to get a warrant to listen in on conversations, or subpoena phone records of a private citizen from a provider.
Are you saying that a government server is a phone system? Again, nice try... My company phones were monitored and all were recorded. I am sure the white house is the same. If there was an investigation where I worked, a subpoena would be required. IOW's your premise is again just BS.....I had no rights other than not use the company phone. LOL at you again... The only precianet is your naive attempt to rationalize a computer server......LOL
What kind of child uses 《《lol😮》》
Opie -
There is technically no difference.
But if you are looking for precedent specific to GSA computer and telephone system... it's very simple. The PTT (Presidential Transition Team) has exclusive rights to the data and the GSA (General Services Administration) is required (as they did in 2008) to reset the the computing devises to the original settings and not preserve anything in the archives.
In 2016 there was some questions, because there had been requests had been made (by Special Counsel) to preserve those records. The issue was apparently decided:
This is from a Transition lawyer familiar
This issue was resolved decisively on June 15, 2017 after a series of emails and telephone calls between TFA’s legal counsel and Richard Beckler and Lenny Loewentritt, the newly appointed General Counsel for the GSA and the career Deputy General Counsel for the GSA, respectively. After discussion and consideration of the issue, Mr. Beckler acknowledged unequivocally to TFA’s legal counsel, in the presence of Mr. Loewentritt, that TFA owned and controlled the PTT emails and data pursuant to the Presidential Transition Act, and that the GSA had no right to access or control the records but was simply serving as TFA’s records custodian. Mr. Beckler assured legal counsel for TFA, again in the presence of Mr. Loewentritt, that any requests for the production of PTT records would therefore be routed to legal counsel for TFA.
There are multiple surviving witnesses to this conversation, including me. Additionally, we understand that the following day, June 16, 2017, Mr. Beckler personally informed the Special Counsel’s Office that PTT records are not owned or controlled by the GSA, and that the Special Counsel’s Office should communicate with TFA if it desired to obtain PTT records.
However, after Beckler was hospitalized....
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.
The argument is whether or not this information belongs to the PTT or the GSA.
When Obama was transitioning, they belonged to the Obama PTT.
The legal decision communicated from the GSA to the PTT and Special Counsel was that it belonged to the Trump PTT.
Mueller went around those who made and communicated the decision and basically ordered lower level employees to turn everything over, without any chance of the PTT to even go through and sort out what was and what was not privileged.
There is technically no difference.
Again, that is your opinion. LOLOLOL
This is from a Transition lawyer familiar
Again, not germane to anything but your opinion..... Remember the purloined DNC e mails.......a hammer that trump is still using....
by simply offering that everything being used to communicate is under Government ownership.
Another opinion based incorrect post.....Every thing written and saved on a govmt system belongs to them regardless of your opinion....and can be used in any manner by the government including prosecutions.....
Opie..
It was actually the opinion of the General Counsel of the GSA.
Because you are probably not familiar...
The General Counsel is the person responsible for making legal recommendations.
It's also the precedent. The Obama Transition team was provided complete control of their own emails, and the GSA preserved nothing.
Lying about the "illegally" part, obviously. Good lord, cs.
So you are claiming Trump, owns the gvmt servers and has the exclusive rights to them....BTW,
Apparently he is claiming that, but it sounds like an argument he came to on his own. I doubt that anyone in general has tried that one, since as you note it's a little ridiculous.
WP...
I think it's the other way around. Mueller is obviously claiming because the PTT documents were housed by the GSA, that the GSA has exclusive rights to turn over that information to special counsel without even notifying the PTT.
I think that is a dubious argument. So did the General Counsel of the GSA - who suggested that the information itself was controlled by the Trump transition team, and that the GSA was only housing it.
Furthermore, what I think you will see, is the left (once again) arguing a straw man. They will try too argue that Mueller had a right to look at those emails. Nobody from the Trump side is arguing differently.
In fact, if you look at the facts, it was the Trump transition team that asked the GSA to keep the archives and produce copies of everything for them, so that they could sort through what was privileged and what wasn't - so they could be turned over in case there was a request or subpoena.
But having the right to those emails is not at issue. At issue is that Mueller (according to precedent and the General Counsel) should have requested it from the transition team. But rather he simply ordered minions over at the GSA to provide him with everything (without telling the transition team).
Clearly Mueller is desperate. A man in control of events would have gone through the proper channels and asked the PTT for what he wanted (at least at first) and then gone to a judge to get a subpoena if he felt they withheld things.
The fact that he did what he did, as he did it... suggests strongly that he didn't otherwise think he could garner the information though legal channels. That should be obvious.
That's reminiscent of the Clinton email servers isn't it? Like the Clintons who didn't understand the ramifications of government email servers, and wanted to keep their correspondence illegally hidden, the Trump Transition Team didn't understand the ramifications of government email servers and want to keep their correspondence hidden. For both of them, their only argument arises from claiming ignorance.
Mueller didn't "go through legal channels" (sic) because he obviously didn't consider it necessary; the GSA provided those emails under existing legal authority. They are government emails. If Trump wanted to keep his transition emails private, he should have used private facilities, and there would have been nothing legally nor ethically wrong with doing so. But he didn't, at least for the emails in question, and therefore he accepted the terms under which he could use them, which is transparency to authorized Government inspection.
There is desperation here, but it's not on Mueller's part. Trump's people are trying to preemptively impugn potential evidence that is being gathered. That kind of thing is always a measure of desperation.
Actually WP...
You are simply wrong on several facts.
Again, it was the GSA's own General Counsel who notified the both the transition team and the Special counsel that the ownership of the emails belonged to the transition team and that the GSA was simply housing them. That is not a Trump team argument. That was the legal finding of the GSA legal counsel.
Is your argument that the GSA legal counsel was wrong?
The Obama transition team emails were not kept by the GSA for the same reasons. Because the GSA has never been legally considered the owner of the emails. Technically a transition team is not yet part of the Government, and the GSA is only there to provide them with the facilities to conduct business.
Are you arguing that the GSA was wrong to not archive the PTT emails from the Obama team, which they would have been, had they been considered Government emails?
Lastly, the FBI, CIA, or whoever... STILL NEEDS A WARRANT to listen in on conversations, to take control of documents, or garner any of that sort of information in any investigation. The FBI doesn't just get to "take what they want" simply because it is housed on a government server... or listen to whatever conversations that they want, simply because they take place with Government facilities. They have to sit a grand jury, and produce a warrant to
Are you arguing that Mueller has authority to just take whatever information he wants without a warrant?
Also, WP...
The Trump team has already given their intention of turning over the emails had they been asked for them. That was why they asked for (and got) all of the emails sent to them as well, so that they could go through them and sort out what they considered privileged.
As far as the Trump team was aware. The GSA itself had already told them and special counsel that requests for the emails would have to come to the transition team, not the GSA.
So considering that Trump and his team had already made their intentions clear to turn over the emails. Given that the Special Counsel already knew that the GSA had all of the emails archived....
Had Mueller made the request to the Trump team and felt he didn't get everything... he still had the option of garnering a subpoena to gather what he wanted (knowing it was housed by the GSA and that Trump couldn't destroy it).
What was his incentive... (if he believed he would be able to garner a subpoena) to simply grab the documents without warrant and without telling the Transition team?
Turned out that WP was making the ridiculous argument.
The answer is clear....
Mueller requested the emails from the GSA. The minions at the GSA turned them over without a warrant.
Mueller then attempted to use those emails to "trap" more Trump associates in "process crimes" - by using the information in the emails to ask questions that they already knew the answer to.
This is similar to what the did with Flynn. They had listened into his conversations in transition (based apparently on a FISA warrant) - then asked him questions about those conversations. When his answers didn't match what the taped conversations stated... they charged him.
It's not a real criminal investigation at this point. It's a desperate and frustrated law enforcement agent attempting to set up a "speed trap" and see if he can't write some traffic tickets.
Blogger Commonsense said...
Turned out that WP was making the ridiculous argument.
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yeah, he's been on a roll lately.
TDS is serious shit. once you find yourself in its grip you're in trouble. look at the alky. he's an emotional and intellectual dumpster fire.
The GSA legal counsel DID NOT make your argument. In fact, although the GSA initially suggested a warrant the Counsel subsequently said that it was NOT necessary. You have it exactly backwards.
I repeat, in the GSA's legal opinion the emails are not privileged. So in your argument the GSA legal authority is wrong.
"Lastly, the FBI, CIA, or whoever... STILL NEEDS A WARRANT to listen in on conversations," - that is correct.
to take control of documents, or garner any of that sort of information in any investigation. - that is incorrect. And rather ridiculous if you think about it. How could it possibly require a warrant to "garner any of that sort of information"? Police investigations are built on "that sort of information" - some requires warrants, some obviously do not. These emails, according to Meuller (who would know of course) AND the GSA legal counsel, opined that these do not require warrants.
How could it possibly require a warrant to "garner any of that sort of information"?
It's called the fourth amendment.
It requires that law enforcement have due cause to search or seize any materials. The fourth Amendment doesn't simply go away because garnering at warrant would be inconvenient, or because they have a manner in gathering the information without asking the owner.
and I did find the official legal status of the transition material from the Chief Records officer from the Government... who sent out a memo long before Mueller was appointed. It states officially that some of the information from the transition team (because they are not a Federal agency) is considered private materials. Some is considered part of the Federal records. Meaning, that at the very least, the information considered "private materials" would have required a warrant (at least by the standards of record keeping).
There is a new post on the subject.
Do you think it requires a warrant to obtain such "private information" as one's residence history, criminal history, credit report, or any government document? To name a few. CH, some information is private and confidential and hence protected. You seem to have an idea that calling information "private" means that it is protected by the fourth amendment, but that is a legally misguided notion.
OK, a primer.
Data protection laws governed by the fourth amendment apply to information about and concerning an individual. Period. Your company emails do not require a warrant if your employers are cooperating, even though you may have sent "private emails" on those systems. The same, for government emails systems. There is no 4th Amendment argument in this respect.
If you wanted instead to argue from a constitutionally guaranteed privacy basis, then you would need to show a reasonable "expectation of privacy". This is why credible legal experts have pointed out that Trump Transition were informed that using government email allowed Law Enforcement to examine the communications. Not for any 4th reasons, but because they have no reasonable expectation of privacy.
Clear enough?
The minions at the GSA turned them over without a warrant.
Again, you do not need one. How long are you going to perpetuate your opinion rather than fact??????
It requires that law enforcement have due cause to search or seize any materials
Materials e-mailed on gubmint equipment on gubmint networks belongs to the gubmint!!!!! There is no getting around that fact....If it is a classified network and classified information, that is a whole other kettle of fish...ask hillary......The same goes with industry networks....all information contained on it belong to the company and if the company is cooperating with an agency, there is no privileged info ... I was involved with a QA issue of falsified tests that the auditors had free rein of every document including procedures. It was a very uncomfortable experience for all those involved. Maybe CH with his ersatz expertise in both law and statistics open his eyes and listen to those who have experienced the wrath of investigation instead of projecting his false opinions that only have merit in his world.......
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