Those looking to discredit the special counsel’s Russia investigation got an assist this weekend from one of President Donald Trump’s attorneys, who alleged Saturday that Robert Mueller’s team inappropriately obtained a trove of presidential transition team documents.
“It’s not looking good,” Trump, who denied that he has any intention of firing Mueller, told reporters. “It’s quite sad to see that. My people were very upset.”
But the General Services Administration (GSA), which turned over thousands of emails exchanged during the transition, the special counsel’s office, and legal experts pushed back on transition lawyer Kory Langhofer’s claims, insisting that nothing about the process was unusual.
Langhofer’s laments about the violation of privacy and privileged attorney-client communications were rendered moot, experts and officials said, by the fact that the transition emails were housed on government servers and sent by people who were then private citizens. Communications exchanged by these individuals between Election Day 2016 and Inauguration Day 2017 are pertinent to Mueller’s probe into Russia’s interference in the presidential election and any coordination that may have occurred between the Kremlin and Trump campaign.
According to a letter Langhofer sent to congressional committee leaders, the “emails, laptops, cell phones, and other materials” for nine transition team members working on “national security and policy matters” as well as four other “senior” transition team members are now in Mueller’s team’s possession. They’ve been “extensively used” in interviews with witnesses, Langhofer alleged.
Here’s why this latest pseudo-scandal matters.
Trump team alleges violation of law, Constitution
In a seven-page letter to the heads of the Senate Homeland Security and House Oversight Committees, Langhofer alleged that GSA’s production of transition materials violated both the Fourth Amendment and a Presidential Transition Act requirement that “computers or communications services” used by transition staffers be “secure.”
Mueller’s team requested the documents in a pair of late August letters and received a flash drive containing them from the GSA on Sept. 1, according to the Associated Press. Langhofer blamed “career GSA staff” working with GSA Deputy Counsel Lenny Loewentritt for carrying out this process “without notifying TFA [Trump for America] or filtering or redacting privileged material.” He said the transition team did not learn of these “unauthorized disclosures” until Dec. 12.
GSA, Special Counsel say there’s nothing weird here
Both the GSA and special counsel said they carried out the process as required by law.
In a Saturday interview with BuzzFeed, Loewentritt, a career GSA employee, explained that all transition staff using GSA devices had to sign agreements asserting that “no expectation of privacy can be assumed.” They were explicitly warned, Loewentritt said, that information “would not be held back in any law enforcement” investigation.
Loewentritt also denied Langhofer’s claim that former GSA general counsel Richard Beckler, who died in September, promised the Trump transition’s legal team that they would be told of any requests made to the agency for document production.
Special counsel spokesman Peter Carr said in a statement that Mueller did not require a subpoena or warrant to obtain the documents.
“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,” Carr said.
Legal experts swat down claims of impropriety
Legal experts and former government attorneys bolstered claims that nothing improper or illegal transpired in obtaining the emails.
Former federal prosecutor Randall Eliason told the Washington Post that it “would be almost prosecutorial misconduct” for Mueller’s team not to sort through the transition messages, and that Langhofer’s decision to go to Congress rather than the judge overseeing the federal grand jury was suspect.
“You go to the judge and complain,” Eliason told the Post. “You don’t issue a press release or go to Congress. It appears from the outside that this is part of a pattern of trying to undermine Mueller’s investigation.”
John Bies, a Justice Department lawyer during the Obama administration, told Politico that presidential privilege did not apply to messages sent before Trump was sworn-in because “there is only one president at a time.”
Congress doesn’t seem interested in taking up the issue
In an interview with Business Insider, Langhofer said he took the issue to Congress rather than Mueller and the GSA because lawmakers “need to make sure this never happens again.”
Lawmakers don’t seem particularly eager to get in the middle of this fight, however.
“These are issues to be briefed by the parties (or others with cognizable legal claims and standing) and decided by the court — not Congress,” a spokesperson for House Oversight Committee Chairman Trey Gowdy (R-SC) told Politico in a statement.
Rep. Elijah Cummings (D-MD), the top Democrat on the committee, said in a statement that the Presidential Transition Act “simply does not support withholding transition team emails from criminal investigators.”
Why the emails could be so important
White House attorney Ty Cobb announced last week that Mueller’s team has completed all interviews with White House staff requested to date, meaning senior Trump advisers have already given investigators their accounts of communications with or about foreign officials.
Those interviews occurred before the transition team knew that Mueller had access to physical copies of their transition emails, and, as Langhofer pointed out, Mueller’s prosecutors have “extensively used the materials” obtained from GSA in his interviews with witnesses.
“Mueller is using the emails to confirm things, and get new leads,” a transition source told Axios.
Mueller’s team can now cross-check the comments of any interviewee to ensure that they did not lie to federal agents—a crime to which both former national security adviser Mike Flynn and former campaign aide George Papadopoulos already pleaded guilty.