- Thomson Reuters
- Special counsel Robert Mueller has obtained thousands of emails from members of President Donald Trump’s transition team.
- An attorney representing the transition team claimed in a letter to Congress that Mueller unlawfully obtained the emails, but legal experts threw cold water on the allegation.
- The emails could generate many new leads for Mueller and help him piece together key events that took place during the transition period.
Special counsel Robert Mueller is in possession of “many tens of thousands” of emails from President Donald Trump’s transition team officials, sources told Axios on Saturday.
The emails reportedly include conversations about sensitive topics, such as potential appointments, the political views of senators involved in the confirmation process, and policy planning.
The special counsel obtained the emails from the General Services Administration, the federal government agency which hosted the transition team’s email system.
Transition team officials reportedly assumed that Mueller would want to see some of the emails, which is why they separated out the ones they considered privileged. However, they only learned that Mueller had obtained all the emails from a third party when investigators questioned witnesses about their contents. Per Axios, Mueller’s team has emails from 12 different accounts, one of which had about 7,000 emails.
“Mueller is using the emails to confirm things, and get new leads,” one transition team source told Axios.
Langhofer said that GSA officials had engaged in “unlawful conduct” by handing all the communications over to Mueller’s team, and that it represented a breach of transition team officials’ Fourth Amendment rights, which protect against unreasonable searches and seizures. He added that they found out about the GSA’s “unauthorized disclosures” to Mueller’s team on Tuesday and Wednesday.
“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’s letter said.
- Alex Wong/Getty Images
Legal experts pushed back on the claim that Mueller illegally obtained the emails in question, some of whichbelong to senior adviser Jared Kushner.
“Of course Mueller obtained emails from a third party,” wrote former federal prosecutor Renato Mariotti. “Prosecutors in most white collar criminal investigations do that. It’s not ‘inappropriate’ or even unusual. Anyone who claims otherwise has no idea what they’re talking about.”
He added that it seemed like Trump’s lawyers were just “playing politics,” but that the development was nevertheless a “bad sign” for them.
Jeffrey Cramer, a longtime former federal prosecutor who specialized in white collar cases, echoed that point.
“This is not a problem,” he said, referring to the way Mueller’s team got a hold of the emails. “The server owner, in this case GSA, properly has the emails and can turn them over if there was a subpoena or court order,” in the same way that internet providers and banks can provide emails and records about clients to law enforcement.
More than that, Cramer added, the special counsel’s team may not even have needed a subpoena to obtain the emails. An administrative request – a legally authorized and judicially enforceable demand for records issued by a government authority – may have sufficed, he said.
The transition team lawyer’s letter to Congress appeared to confirm that Mueller’s office obtained the emails via an administrative request.
“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 [transition team] members responsible for national security and policy matters,” the letter said.
In response to Langhofer’s claim that some of the emails could be “susceptible to privilege claims,” Georgetown University national security law professor Phillip Carter tweeted that there was no “legal privilege” that applied in this case. “Just putting a ‘privilege’ legend on something, or asserting the privilege in a letter after the fact, doesn’t make it so.”
It’s unclear which officials the emails belong to and what they contain. But it’s likely they will provide a number of new leads for the special counsel to follow.
In one instance, KT McFarland, a senior member of Trump’s transition team, said in an email to a colleague on December 29, 2016 that the transition team should try to reassure Russia, which had just “thrown” the election to Trump.
McFarland wrote the email right after then President Barack Obama announced new sanctions against Russia in response to its interference in the election.
McFarland told the unnamed colleague in the email obtained by the New York Times that the sanctions were aimed at delegitimizing Trump’s election victory.
“If there is a tit-for-tat escalation Trump will have difficulty improving relations with Russia, which has just thrown U.S.A. election to him,” she wrote.
The emails could shed light on other critical events which took place during the transition period that have drawn Mueller’s focus. They include Kushner’s meeting with a Russian banker with close ties to Russian President Vladimir Putin; Kushner and Flynn’s meeting with Russian ambassador Sergey Kislyak, during which Kushner reportedly asked to set up a secret back channel of communication between Trump and Russia; and Flynn’s suggestion to a business associate that the new Russia sanctions would be “ripped up” under Trump.
The emails could also help investigators piece together more of what happened near the end of 2016 as it relates to Flynn’s conversations with Kislyak – interactions he would later mislead FBI agents about during a January 24 interview.
Flynn pleaded guilty on December 1 to one count of making false statements to investigators about his contacts with Kislyak.
According to the US government’s statement of offense regarding Flynn, the former national security adviser was encouraged by key members of Trump’s transition team to communicate with Kislyak following Obama’s announcement of new sanctions against Russia.
The emails may also shed more light on what Trump knew about Flynn’s contacts with the Russian ambassador, and when he knew it.
The White House said in February, after Flynn’s departure, that Flynn was fired because he misled Vice President Mike Pence about his conversations with Kislyak. It gave no indication that it knew he had lied to the FBI as well.
But Trump sent out a tweet on December 2 – the day after Flynn’s charge was made public – which suggested that he had known at the time of Flynn’s firing that had had misled the FBI, which is a federal crime. If he knew about Flynn’s unlawful conduct, then his request to former FBI director James Comey that the bureau drop the Flynn investigation, and his subsequent decision to fire Comey, could significantly bolster the obstruction-of-justice case Mueller is said to be building against Trump.
Mariotti said on Saturday that while it wasn’t unusual for prosecutors to obtain documents from third parties, as Mueller’s office did with the Trump transition team’s emails, it was unusual that Mueller asked the GSA for the communications as opposed to lawyers representing the transition team.
Prosecutors typically get as many documents as possible from defense lawyers because they “would review the emails, take out the ones that are not relevant, sort the emails, and put them in a format” that would be easily accessible to investigators.
In this case, however, it could have been that “Mueller was concerned that he wouldn’t receive all of the emails if he obtained them from the Trump team,” Mariotti wrote, adding that it was “surprising” and indicated that Mueller had reason to distrust Trump’s team.