Mueller’s little surprise (2)

As I note below, Axios has posted the letter from Trump transition lawyer Korey Langhofer to Senator Ron Johnson and other members of Congress responsible for oversight here. Interested readers really have to read for themselves the facts recounted in section II. of the letter at pages 3-5:

After Inauguration Day on January 20, 2017, [Trump for America] wound down the bulk of its activities, vacated the premises provided by the [General Services Administration], and returned to the GSA the computer and telephone equipment that TFA had used during the transition period. Shortly thereafter, the GSA asked TFA for direction on the disposition of [Presidential Transition Team] data. TFA directed the GSA to handle PTT data in a manner consistent with the [Memorandum of Understanding] and the reported disposition of data from President Obama’s presidential transition in 2008; computing devices were to be restored to original settings and reissued to federal personnel and, to the extent that PTT records were not required for the winding down of TFA’s affairs, the PTT email archives were no longer to be preserved.

Approximately two months later, TFA became aware of certain requests concerning PTT records. TFA promptly instructed the GSA, as the custodian of certain TFA records including PTT emails hosted on GSA servers, and others to preserve PTT records. Because of TFA’s prompt reaction, all PTT emails have been preserved.

In order to comply with congressional document production requests, TFA ordered from the GSA electronic copies of all PTT emails and other data. Career GSA staff initially expressed concern that providing copies of PTT emails to TFA might violate a document preservation request that the GSA had received from the Special Counsel’s Office. This issue was resolved decisively on June 15, 2017 after a series of emails and telephone calls between TFA’s legal counsel and Richard Beckler and Lenny Loewentritt, the newly appointed General Counsel for the GSA and the career Deputy General Counsel for the GSA, respectively. 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 Mr. Loewentritt, that any requests for the production of PTT records would therefore be routed to legal counsel for TFA. 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.

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. The materials produced by the GSA to the Special Counsel’s Office therefore included materials protected by the attorney-client privilege, the deliberative process privilege, and the presidential communications privilege. It is our understanding that Mr. Beckler passed away without returning to the GSA, and that career GSA staff (including Mr. Loewentritt) never consulted with or informed Mr. Beckler or his successor of the unauthorized production of PTT materials.

The unauthorized production of PTT materials by career GSA staff violates (a) the GSA’s duties to TFA pursuant to the GSA’s previous acknowledgement concerning TFA’s rightful ownership and control of PTT materials; (b) the statute requiring the GSA to “ensure that any computers or communications services provided to an eligible candidate . . . are secure,” 3 U.S.C. § 102 note 3(h)(2)(B)(ii); and (c) the Fourth Amendment’s prohibition on a government actor (e.g., Mr. Loewentritt), or a private actor working at the request of a government official, failing to obtain a warrant for the search of seizure of private property in which the owner has a reasonable expectation of privacy, see Coolidge v. New Hampshire, 403 U.S. 443, 489 (1971).

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. Additionally, certain portions of the PTT materials the Special Counsel’s Office obtained from the GSA, including materials that are susceptible to privilege claims, have been leaked to the press by unknown persons. Moreover, the leaked records have been provided to the press without important context and in a manner that appears calculated to inflict maximum reputational damage on the PTT and its personnel, without the inclusion of records showing that PTT personnel acted properly – which in turn forces TFA to make an impossible choice between (a) protecting its legal privileges by keeping its records confidential and (b) waiving its privileges by publicly releasing records that counteract the selective leaks and misguided news reports. In short, since the GSA improperly provided them to the Special Counsel’s Office, the PTT’s privileged materials have not only been reviewed privately by the Special Counsel’s Office without notification to TFA – they have also been misused publicly.

We discovered the unauthorized disclosures by the GSA on December 12 and 13, 2017. When we learned that the Special Counsel’s Office had received certain laptops and cell phones containing privileged materials, we initially raised our concerns with Brandon Van Grack in the Special Counsel’s Office on December 12, 2017. Mr. Van Grack confirmed that the Special Counsel’s Office had obtained certain laptops, cell phones, and at least one iPad from the GSA – but he assured us that the Special Counsel’s investigation did not recover any emails or other relevant data from that hardware. During this exchange, Mr. Van Grack failed to disclose the critical fact that undercut the importance of his representations, namely, that the Special Counsel’s Office had simultaneously received from the GSA tens of thousands of emails, including a very significant volume of privileged material, and that the Special Counsel’s Office was actively using those materials without any notice to TFA. Mr. Van Grack also declined to inform us of the identities of the 13 individuals whose materials were at issue. We followed up with Mr. Van Grack the next day after learning of the unauthorized disclosure of PTT emails to ask what procedures, if any, had been implemented to protect privileged PTT communications from unauthorized and improper review. Mr. Van Grack declined to respond at the time, but contacted us on December 15, 2017 to inform us that the Special Counsel’s Office had, in fact, failed to use an “ethical wall” or “taint team” and instead simply reviewed the privileged communications contained in the PTT materials. Mr. Van Grack also acknowledged on the December 12, 2017 telephone call that, even before we contacted him, the Special Counsel’s Office had been aware of the importance and sensitivity of the privilege issues that we raised.

To all this Mueller’s spokesman has responded: “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.” The response won’t be the end of the story.

UPDATE: The Washington Post collects the comments of an expert who reject Langhoffer’s legal argument. I don’t think his comments address the facts stated above, which may or may not be irrelevant. The Post article suggests that GSA staff may have voluntarily turned over the documents and material requested by Mueller, though that is not clear, under circumstances that appear questionable to me.

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