Behind the new faux controversy over Mueller getting Trump transition emails is a key and probably too little discussed aspect of the Russia story: Mueller’s team has some of the most accomplished and aggressive prosecutors and legal minds of their generation. They’re facing off against a team of has-beens, 3rd or 4th rate lawyers and in some cases simple incompetents. Why? Because Trump values sycophancy above competence and because none of the top lawyers were willing to work for him.
I can’t say that I would have known on my own what the status of these emails in question was. But given what we know about Trump’s lawyers, it’s all but impossible to think they’re in the right on this. Why? Simply because they’ve shown again and again that they don’t know key elements of the law or investigative procedure. If the Trump team had a solid legal team defending them, I have little doubt they would have understood the legal status of these emails in advance. If they had some case, they would have marshaled their arguments in advance. If nothing else, I suspect there are ways, either formal or informal, that they could have known Mueller had gotten these emails, whether they thought he had a right to them or not.
The simple fact is that they were caught off guard, something that has happened numerous times through this saga. Criminal investigation is in a way like a war. Within the law, it is part of the process that you want to keep the other side guessing as much as possible. But if you’ve watched the investigation closely, there have been numerous occasions when the Trump team appears to have been caught totally off guard by developments they likely should have had at least some inkling of. They’re upset because they didn’t do their homework on the legal status of those emails. As my friend Garance Franke-Ruta archly puts it, always read the terms of service!
One might speculate that Trump’s lawyers know they have no legal case here but are playing this up as part of a “Mueller’s out of control/breaking the law” narrative. It’s certainly being played that way on Fox. Certainly there’s some of that. But my guess is that they’re genuinely surprised. And since they’re surprised they assume Mueller cheated. (Is it possible Mueller did something wrong? Sure. Who knows? If so, I’m sure we’ll find out soon enough. But I doubt it. And none of the legal commentary I’ve seen suggests he did.) Beyond that, however, I suspect they now fear (no doubt rightly) that Trump officials lied during their interviews with the Special Counsel’s office and the investigators already had the emails that proved they were lying. That’s a real sinking feeling for everyone involved.