Team Mueller appears to be a gift that never stops giving..... to President Trump.
Never have we seen a "special counsel" team become so embroiled in scandal, corruption, political bias and now, 'improper" activities, with the recent accusation by the top lawyer of the Trump presidential transition team, that Robert Mueller's team illegally obtained thousands of transition documents, including attorney-client communications and other privileged communications.
First lets go over the acronyms we will be using in this article: GSA - General Services Administration - An independent agency declared by congressional act to help "promote the orderly transfer of the executive power in connection with the expiration of the term of office of the President and the inauguration of a new President." TFA - Trump for America also known as the PTT: Presidential Transition Team or PETT for President-elect Transition Team.
THE BACK-STORY: MUELLER 'IMPROPERLY' OBTAINS EMAILS FROM GSA
The attorney said they discovered the “unauthorized disclosures” by the GSA on Dec. 12 and 13 and raised concerns with the special counsel’s office. The Associated Press reported that the GSA turned over a flash drive containing tens of thousands of records on Sept. 1 after receiving requests from Mueller's office in late August.
Those records included emails sent and received by 13 senior Trump transition officials. Among the officials who used transition email accounts was former national security adviser Michael Flynn, who pleaded guilty to a count of making false statements to FBI agents in January and is now cooperating with Mueller's investigation.
“We understand that the special counsel’s office has subsequently made extensive use of the materials it obtained from the GSA, including materials that are susceptible to privilege claims," Langhofer wrote. He added that some of the records obtained by the special counsel’s office from the GSA “have been leaked to the press by unknown persons.”
The special counsel team, led by Robert Mueller, requested, without a subpoena, emails sent and received by Trump transition officials. GSA handed over said transition documents, said to include thousands of emails, to the special counsel, in an act that Kory Langhofer, the counsel to (TFA) calls "unlawful conduct," in a letter sent to the U.S. Senate Committee on Homeland Security & Governmental Affairs and U.S. House Committee on Oversight & Government Reform.
1. To inform the Committees of unlawful conduct that undermines the Presidential Transition Act of 1963, as amended, and will impair the ability of future presidential transition teams to candidly discuss policy and internal matters that benefit the country as a whole. More specifically, we write to inform you that (a) career staff at the General Services Administration (“GSA”) have unlawfully produced TFA’s private materials, including privileged communications, to the Special Counsel’s Office; and (b) although the Special Counsel’s Office was aware that the GSA did not own or control the records in question, the Special Counsel’s Office has extensively used the materials in question, including portions that are susceptible to claims of privilege, and without notifying TFA or taking customary precautions to protect TFA’s rights and privileges; and
2. To request that Congress act immediately to protect future presidential transitions from having their private records misappropriated by government agencies, particularly in the context of sensitive investigations intersecting with political motives.
Team Mueller denies the illegality of receiving the documents from the GSA, versus having to go directly to the TFA, who is claiming they legally owned the documents, stating "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."
Mueller's team has not addressed how some of the information contained in those documents ended up being leaked to the press. Nor have they issued a statement on why they approached the GSA rather than TFA.
Mike Allen over at Axios explains the nature of what those emails included as part of the transition process: "The transition emails are said to include sensitive exchanges on matters such as potential appointments, gossip about the views of particular senators involved in the confirmation process, speculation about vulnerabilities of Trump nominees, strategizing about press statements, and policy planning on everything from war to taxes."
The fact that Michael Flynn was part of the transition team makes the issue of whether GSA had a legal right to hand over transition activity extremely important, if any of that information was used to force Flynn's compliance, and the information was provided illegally to Mueller, that taints any potential cases against any of the transition team, including Flynn.
This was highlighted by well known and respected law professor, Jonathan Turley, who states "Trump lawyers claim Mueller obtained privileged email through GSA. If so, it would be a uniquely stupid mistake that could taint the SC investigation." Turley continues on to say "The privilege issue is a novel one but it was clearly inappropriate to use the GSA as an avenue to obtain emails that should be reviewed by counsel first."
I specifically use Turley as the expert to quote because in a case like this we have liberal leaning lawyers favoring Mueller's actions, while conservative leaning lawyers will make a different argument, but Turley has a self-proclaimed "socially liberal agenda" for the most part, while favoring the rule of law and is highly respected and the second most cited law professor in the country.
WHO 'OWNED' THE DOCUMENTS?
Bottom line up front: If TFA legally owned the documents than the GSA illegally handed them to Mueller's team, something a team of career prosecutors and investigators would have been fully aware of. Kory Langhofer, TFA's attorney, states in the letter to congress that "GSA had no right to access or control the records but was simply serving as TFA’s records custodian."
The question is whether Langhofer is correct, and the citations he offers, directly from the Department of Justice and the government's own archive sites, provides a very persuasive argument.
Page two of Langhofer's letter to the Senate and the House:
The U.S. Department of Justice has for nearly 30 years maintained that presidential transition entities are not “agencies” within the meaning of the Freedom of Information Act. This interpretation was most recently affirmed during the Obama Administration. See U.S. Dep’t of Justice, FOIA Counselor: Transition Team FOIA Issues, FOIA Update, Vol. IX, No. 4 (Jan. 1, 1988, rev. Sept. 1, 2016), available at https://www.justice.gov/oip/foia-update-foia-counselor-transition-teamfoia-issues.
While the link provided by Langhofer to the DOJ website cited as supporting his assertion that transition records are not considered GSA "agency records," is for the purposes of any Freedom Of Information Act requests, it does support his claim that a transition team holds a "nonagency status," and transitional team records are indeed considered "personal records."
VIA the DOJ website:
A complication can arise, however, when a member of a transition team brings copies of transition team documents with him to a federal agency when appointed as an agency official. In both of the FOIA cases in which requesters have sought such documents, the courts held that they were not "agency records" under the Act but rather were the "personal records" of the former transition employees. See Wolfe v. HHS, 711 F.2d 1077, 1080 (D.C. Cir. 1983) (document did not lose "its private character simply upon arrival within the agency building"); Illinois Inst. for Continuing Legal Educ. v. Department of Labor, 545 F. Supp. at 1234 ("To be 'agency records,' something more than mere possession of the records by an agency official must be shown.").
An element in each of those cases, though, was that the documents had never been integrated into the agency's files and were not formally used by the official who possessed it or by anyone else in conducting official agency business. See Wolfe v. HHS, 711 F.2d at 1081 ("no one [else] in the agency ever read or relied upon these documents"); Illinois Inst. for Continuing Legal Educ. v. Department of Labor, 545 F. Supp. at 1235 (document never was "actually used by an agency official"). The dicta statements in these cases suggest that had the documents been used not merely for personal reference, but rather to conduct agency business, they might have been found to be "agency records." See also FOIA Update, Fall 1984, at 4.
Applicability of Exemption 5
The fact that a transition team is not a part of the executive branch presents an interesting issue with respect to the applicability of Exemption 5 to deliberative materials drafted by agency personnel for a transition team's use. (In this context, it is essential to distinguish between agency employees who continue to work for their federal agency and those who, under Section 3 of the Transition Act, are detailed to a transition team and who therefore are not generally regarded as agency employees. For the purpose of this discussion, detailees are not considered to be agency employees.) The concern here results from Exemption 5's awkward threshold language (covering "inter-agency or intra-agency memorandums or letters"), a requirement which might at first seem to preclude the exemption's applicability to communications between agencies and transition teams.
This appears to support both Langhofer and Turley's argument that while these are in regards to FOIA, it sets a legal precedent that unless the documents in question were drafted by the "agency," meaning GSA, they belonged to the transition team and the GSA had no legal standing to provide them to Mueller's team.
The next citation by Langhofer in his letters to Congress, is directly from the National Archives, last updated November 16, 2016. A memorandum to federal records agency officers as "Guidance Relating to President-Elect Transition Team Materials," which states the following:
The President-elect’s Transition Team (PETT) represents the President-elect during the 2016-2017 Presidential transition. The materials that PETT members create or receive are not Federal or Presidential records, but are considered private materials. However, transition briefing materials created by a Federal agency and agency communications with the PETT are Federal records and must be managed in accordance with an approved agency records schedule.
If a PETT member is appointed to an agency position as part of the new Administration, the status of PETT materials that the individual brings to the agency may change at that time. If PETT materials are incorporated as agency working files, they become records under either the Federal Records Act (FRA), for individuals working at Federal agencies, or the Presidential Records Act (PRA), for individuals working in PRA creating entities of the Executive Office of the President. If the PETT materials are kept separate from Federal agency files or from files of a PRA entity, then they remain private materials.
On page six of Laghofer's letter to Congress, he specifically accuses not only the GSA, but the special counsel itself of "misconduct," stating "As discussed above, the GSA’s unlawful production of TFA’s internal records was exacerbated by the Special Counsel’s Office failure to preserve and respect the legal privileges that attach to a large number of those documents. More generally, however, the GSA’s and the Special Counsel’s Office’s misconduct in this matter demonstrates why investigators and government attorneys, who in many cases are not entirely neutral, should not be trusted to decide without proper oversight which records belonging to private parties are privileged. "
MUELLER'S TEAM HAS HISTORY OF QUESTIONABLE TACTICS
While Robert Mueller has come under heavy criticism for he team he chose, the majority of which were Hillary Clinton and/or Barack Obama donors and supporters, and the most recent scandals that have engulfed at least a half dozen members of his team over the last three weeks, from plotting against President Trump before the election, to questionable ties with Fusion GPS and the Kremlin sourced Trump dossier, to members of Mueller's team talking about an "insurance policy" if Trump won the election, Mueller has also personally been criticized by fellow attorneys for his and members of his team's "history of questionable tactics."
Harvey Silverglate, a criminal defense attorney in Massachusetts, wrote an opinion piece accusing Mueller of once trying to entrap him when Mueller was acting U.S. attorney in Boston. Silvergate offered this warning back in October 2017, "My experience has taught me to approach whatever he does in the Trump investigation with a requisite degree of skepticism or, at the very least, extreme caution."
Another former prosecutor speaks about the ethics of Andrew Weissmann, another member of Mueller's team, finding his conduct so egregious she filed a formal complaint of prosecutorial misconduct with the Texas bar and the DOJ’s Office of Professional Responsibility, accusing him of "witness threatening, withholding exculpatory evidence, and the use of 'false and misleading summaries'." (Source)
MUELLER MUST BE REPLACED
With Mueller's and his teams exposure for unethical behaviors, the only remedy is to have Mueller replaced, all evidence sorted through and all tainted evidence, whether by Mueller's misconduct here, or his "teams" newly revealed biases, possible criminal behaviors and conflicts of interest, discarded, so that a fair investigation can continue.
The use by Mueller of even one privileged document can, and must, result in his disqualification from the case.
The case of Finn v. Schiller, 72 F.3rd 1182, 1189 spells out the required remedy for this violation of the law: "Courts have frequently used their supervisory authority to disqualify prosecutors for obtaining materials protected by the attorney-client privilege."
Statutory law also demands Mueller's removal. Pursuant to 5 C.F.R. 2635.501, government employees, including prosecutors, are directed to "take appropriate steps to avoid an appearance of loss of impartiality in the performance of his or her official duties."
Mueller's actions or the actions of his team in this transition documents issue, may only be improper, may be underhanded but not meet the standard for being "illegal," unless of course he used the attorney-client emails that got swept up with the rest of them for investigative purposes, but in conjunction with all the other issues we have seen revealed about Mueller's team over the past few weeks, we are seeing a pattern of behavior, a "witch hunt" as the president would call it, all conducted by partisans that are now about to be subpoenaed by Congress over their prior actions.
Mueller has got to go and it falls to Deputy AG Rod Rosenstein, who has admitted recently in front of Congress that oversight of Mueller's investigation falls directly on his shoulders, to deal with this issue, to remove Mueller, to sort through the mess he and his team have made of this investigation and act accordingly.