Mueller’s little surprise (3)

Special Counsel Robert Mueller has obtained thousands of Presidential Transition Team (or Trump for America) emails and other material from the General Services Administration, which served as their custodian. PTT lawyer Kory Langhofer set forth facts and law disputing the propriety of Mueller’s action in a 7-page letter released over the weekend and posted online by Axios. I want to follow up briefly with a few notes following up on my posts here and here on Sunday.

1. Langhofer’s letter is addressed to the chairmen and ranking members of the Senate Homeland Security Committee and the House Oversight Committee. I take it that their jurisdiction includes legislative and oversight jurisdiction with respect to the GSA. Langhofer’s argument is both with Mueller and with GSA staff who turned over the material to Mueller. It is not clear to me why Langhofer has chosen to raise the issues via correspondence with Congress seeking some kind of reform. Langhofer’s letter is nevertheless of great interest and worth reading in its entirety.

2. The gist of Langhofer’s argument is that the GSA served solely as the custodian of the material in issue. Langhofer states directly that “the Special Counsel’s Office was aware that the GSA did not own or control the records in question[.]”

3. In its story covering this dispute as originally posted, the Washington Post quoted a Trump adviser: “This wasn’t a subpoena pursuant to a grand jury. GSA just turned them over.”

4. Mueller spokesman Peter Carr responded to the gist of Langhofer’s letter in a statement to the Washington Post: “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.” Does that mean that Mueller obtained the material via compulsory process or that Mueller asserts the GSA owned the material? He isn’t saying and the Post adds no clarity on this basic question.

5. Andrew Napolitano is the former New Jersey state court trial judge who appears on Fox News as its senior judicial analyst. Napolitano was all over Fox News yesterday asserting that Mueller obtained the material through a grand jury subpoena. See, for example, the video clip posted here. I cannot find any basis for this statement. I asked him via Twitter twice this morning @Judgenap on what basis he made this assertion; he has not responded.

6. I was particularly interested in Langhofer’s recitation of facts at pages 3-5 of his letter. He notes that Mueller originally sought the materials from GSA general counsel Richard Beckler. The letter provides this background:

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 [GSA deputy general counsel] Mr. [Roger] Loewentritt, that any requests for the production of records would therefore be routed to legal counsel for [Trump for America, i.e., Langhofer]. 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.

This background is followed by this statement of facts:

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.

I have found no reports following up on this basic factual background.

7. What is going on here? I commend columns by Andrew McCarthy at NRO and Jonathan Turley at the Hill. Robert Barnes has more here, though I don’t necessarily agree with Barnes’ framing of the issue.

8. Andy McCarthy refers to this matter as a “kerfuffle.” He does not think it of great import. He knows what he is talking about and I trust his judgment. Yet it opens a revealing window on to the Mueller probe that Mueller himself would prefer to keep shut, and with good reason. It shows his conduct in a most unflattering light.

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