President Donald Trump’s transition organization is arguing that a government agency improperly turned over a cache of emails to special counsel Robert Mueller as part of his investigation into contacts between Trump associates and Russia.
The complaint by the transition team is the latest attempt to undermine Mueller’s investigation in the public sphere. It also raises a number of complicated questions about who owns presidential transition records and whether there are any legal bars for federal prosecutors to obtain documents maintained by another government agency — in this case, the General Services Administration.
Here are some key questions and answers:
Q: What materials did Mueller obtain from the General Services Administration?
A: According to the transition, GSA provided prosecutors with tens of thousands of transition emails as well as laptops, cellphones, at least one iPad and other documents related to 13 transition officials. The transition did not name the officials. The transition says it believes that Mueller’s team has “made extensive use of the materials,” though it doesn’t provide specifics.
Q: Why does GSA have these records in the first place?
A: The transition asked them to preserve them. Like previous presidential transitions, the GSA provided office space and other aid to Trump’s team. That included use of computer systems and email. According to a written agreement between the transition team and GSA, materials on the computers were supposed to be deleted after the transition wound up its activities. But the transition asked GSA to preserve the records after receiving document requests from Congress last spring.
Q: What is the presidential transition team arguing?
A: The transition is arguing that GSA wasn’t authorized to disclose these records and that a portion of the records are covered by various privileges including attorney-client privilege.
Kory Langhofer, general counsel of Trump’s still-existing transition group, Trump for America, wrote in a letter to congressional committees that the transition team didn’t learn until this month that the GSA in September had provided the emails to Mueller’s team.
He said that the transition team does not consider the documents to be government property and that a GSA official who was appointed by Trump in May — and who has since died — had assured the transition that any request for records from Mueller’s office would be referred to the transition’s attorneys.
Q: What does GSA say?
A: GSA deputy counsel Lenny Loewentritt told BuzzFeed News that transition officials signed agreements that warn them that materials kept on the government servers are subject to monitoring and auditing and that there was no expectation of privacy. He also disputed that GSA made a verbal commitment to the transition team that requests from law enforcement for materials would be routed through transition lawyers.
On Monday, GSA spokeswoman Pamela Dixon declined to comment on the dispute over transition materials.
Q: What does Mueller say?
A: In a rare public statement, a spokesman for Mueller responded to the allegations by saying that the special counsel’s office has followed the law when it has obtained documents during its investigation.
“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 the spokesman, Peter Carr.
Q: Has Mueller done anything wrong by asking GSA for these records?
A: The short answer is no, said Stanford law professor David Sklansky.
“In general, there’s absolutely nothing wrong with prosecutors and FBI agents asking agencies to give them information that they can use in an investigation, and this letter, as I read it, doesn’t suggest that there was anything wrong in Mueller making that request,” he said.
The transition is arguing that Mueller has accessed records that are covered by three privileges: attorney-client, deliberative process and executive. Sklansky said it’s possible that some material could be covered by attorney-client privilege, but he’s skeptical of the other arguments.
The transition appears to be trying to have it both ways, he said, saying on one hand that the records are private and not government records, while on the other hand saying that the records are protected by two privileges —deliberative process and executive — that only apply to government records.
“I think the suggestion that there’s a privilege claim here is a stretch,” he said.
Q: Could this taint any evidence Mueller obtained from the transition emails or pose problems for a prosecution down the road?
A: That seems highly unlikely based on what is publicly known from the transition team’s letter to Congress, said Kelly Kramer, a white-collar criminal defense lawyer in Washington. That letter doesn’t cite any binding agreement by GSA that it would consult with the transition team before responding to a government demand for documents, and since the emails were stored on a government server in the first place, they are “presumptively fair game,” Kramer said.
“You’re hosting emails on government servers — kind of absent an agreement, it means the government has control of those emails,” he said, noting that document requests apply to materials “in your custody and control.”
He said he considered the letter to be a public relations effort versus a substantive legal move to try to get the information suppressed.
“The question here is whether they make a motion, whether they seek exclusion in court,” he said.
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