Trump Transition Team Outraged To Be Treated as Transition Team!!

This is a general post on the GOP claim Mueller improperly obtained emails from ~13 Transition officials, updated as new news comes available. This post explains what is really going on: the Transition appears to have withheld emails — including the KT McFarland one referring to the election as having been “thrown” — and Mueller obtained proof they were withholding things. 

Both Fox News and Axios have pieces reflecting the outrage!!! among Trump people that they got asked questions about emails they thought they had hidden from Mueller’s investigation. Axios reveals that Mueller obtained the full contents of 12 accounts (Reuters says 13), one including 7,000 emails, from people on the “political leadership” and “foreign-policy team;” it says it includes “sensitive emails of Jared Kushner.”

Fox reveals that a transition lawyer wrote Congress today claiming that it was unlawful for government employees to turn over emails hosted on government servers for a criminal investigation.

A lawyer for the Trump presidential transition team is accusing Special Counsel Robert Mueller’s office of inappropriately obtaining transition documents as part of its Russia probe, including confidential attorney-client communications and privileged communications.

In a letter obtained by Fox News and sent to House and Senate committees on Saturday, the transition team’s attorney alleges “unlawful conduct” by the career staff at the General Services Administration in handing over transition documents to the special counsel’s office.

Officials familiar with the case argue Mueller could have a problem relating to the 4th Amendment – which protects against unreasonable searches and seizures.

Kory Langhofer, the counsel to Trump for America, wrote in the letter that the the GSA “did not own or control the records in question.”

But, Langhofer says, Mueller’s team has “extensively used the materials in question, including portions that are susceptible to claims of privilege.”

And Axios explains that the Trump people actually sorted through this stuff. “The sources say that transition officials assumed that Mueller would come calling, and had sifted through the emails and separated the ones they considered privileged.”

I’m really looking forward to hearing the full story about this, rather than just this partisan spin. For example, I’m interested in whether Mueller realized via some means (perhaps from someone like Reince Priebus or Sean Spicer — update, or George Papadopoulos) that the White House had withheld stuff that was clearly responsive to his requests, so he used that to ask GSA to turn over the full set.

I’m also interested in how they’ll claim any of this was privileged. The top 13 political and foreign policy people on the Trump team might include (asterisks mark people confirmed to be among those whose accounts were obtained):

  1. Pence
  2. Bannon
  3. Jared*
  4. Flynn*
  5. KT McFarland
  6. Spicer
  7. Priebus
  8. Nunes
  9. Sessions
  10. Seb Gorka
  11. Stephen Miller
  12. Hope Hicks
  13. Ivanka
  14. Don Jr
  15. Rebekah Mercer
  16. Kelly Anne Conway
  17. Rudy Giuliani
  18. Steven Mnuchin
  19. Rick Gates
  20. Corey Lewandowski
  21. Tom Bossert

Just one of those people — Sessions — is a practicing lawyer (and he wasn’t, then), and he wasn’t playing a legal role in the transition (though both Sessions and Nunes may have been using their congressional email, in which case Mueller likely would show far more deference; update: I’ve added Rudy 911 to the list, and he’d obviously qualify as a practicing lawyer). Though I suppose they might have been talking with a lawyer. But I would bet Mueller’s legal whiz, Michael Dreeben, would point to the Clinton White House Counsel precedent and say that transition lawyers don’t get privilege.

Furthermore, Trump wasn’t President yet! This has come up repeatedly in congressional hearings. You don’t get privilege until after you’re president, in part to prevent you from doing things like — say — undermining existing foreign policy efforts of the actually still serving President. So even if these people were repeating things Trump said, it wouldn’t be entitled to privilege yet.

Finally, consider that some of these people were testifying to the grand jury months and months ago. But we’re only seeing this complaint today. That’s probably true for two reasons. One, because Mueller used the emails in question (most notably, the emails between McFarland and Flynn from December 29 where they discussed Russian sanctions) to obtain a guilty plea from Flynn. And, second, because Republicans are pushing to get Trump to fire Mueller.

Update: I’ve added Pence, Don Jr., Ivanka, Hope Hicks, Kelly Anne Conway, Rudy Giuliani, Steven Mnuchin back in here.

Update: Here’s more from Reuters.

Langhofer, the Trump transition team lawyer, wrote in his letter that the GSA’s transfer of materials was discovered on Dec. 12 and 13.

The FBI had requested the materials from GSA staff last Aug. 23, asking for copies of the emails, laptops, cell phones and other materials associated with nine members of the Trump transition team response for national security and policy matters, the letter said.

On Aug. 30, the FBI requested the materials of four additional senior members of the Trump transition team, it said.

The GSA transfer may only have been discovered this week (probably as a result of Congress’ investigation). But the witnesses had to have known these emails went beyond the scope of what the transition turned over. And the request date definitely is late enough for Mueller to have discovered not everything got turned over, perhaps even from George Papadopoulos, who flipped in late July.

Update: One more thing. Remember that there were worries that transition officials were copying files out of a SCIF. That, by itself, would create an Insider Threat concern that would merit FBI obtaining these emails directly.

Update: Here’s a report dated June 15 on a transition lawyer instructing aides and volunteers to save anything relating to Russia, Ukraine, or known targets (Flynn, Manafort, Page, Gates, and Stone).

Update: AP reports that Flynn was (unsurprisingly) among those whose email was obtained.

Update: Here’s the letter. I unpacked it here. It’s a load of — I believe this is the technical term — shite. First, it stakes everything on PTT not being an agency. That doesn’t matter at all for a criminal investigation — Robert Mueller was no FOIAing this stuff. It then later invokes a bunch of privileges (the exception is the attorney client one) that only come with the consequent responsibilities. It then complains that Mueller’s team didn’t use a taint team.

Perhaps the craziest thing is they call for a law that would only permit someone to access such emails for a national security purpose — as if an espionage related investigation isn’t national security purpose!

Update: Chris Geidner got GSA’s side of the story. Turns out they claim the now dead cover up GC didn’t make the agreement the TFA lawyer says he did. In any case, GSA device users agreed their devices could be monitored.

“Beckler never made that commitment,” he said of the claim that any requests for transition records would be routed to the Trump campaign’s counsel.

Specifically, Loewentritt said, “in using our devices,” transition team members were informed that materials “would not be held back in any law enforcement” actions.

Loewentritt read to BuzzFeed News a series of agreements that anyone had to agree to when using GSA materials during the transition, including that there could be monitoring and auditing of devices and that, “Therefore, no expectation of privacy can be assumed.”

Update: Mueller’s spox, Peter Carr, issued a statement saying, “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.”

23 replies
  1. Domye West says:

    I wonder what “sensitive emails of Jared Kushner” means. Axios’ source was someone on the transition team, so it’s interesting that a Kushner nugget is provided.

  2. tryggth says:

    I might throw Billingslea in just as backup to whatever he has testified to.

    It’s weird people are leaking grand jury testimony and risking espionage charges.

  3. Anonymous says:

    Another possible upper-level figure: Sam Clovis, policy advisor and foreign policy team coordinator.  For what it’s worth, former transition team leader Chris Christie is also likely.

  4. earlofhuntingdon says:

    Using the media to try a case again?  Tut, tut.  If the case were solid, one might expect a filing in court rather than a press clipping.  Or at least a complaint to Mueller or the DoJ rather than a whinge to Congress.  What’s needed is a little more specificity so that claims can be tested, not just bragged about or used to muddy the minds in the jury pool.

    It’s a pity these transition team members and their lawyer apparently aren’t keeping up on their Emptywheel, or they would have a better idea about the legal tools available to Mueller through which he might legally obtain that data.

  5. Cue says:

    A brief backgrounder on the GSA General Counsel (an expert on FCPA) who predeceased the current email controversy:

    Mr Beckler’s Washington Post Obituary has the following omission: No mention of Mr Beckler’s FCPA expertise.

    The GSA press release announcing Mr Beckler’s appointment as GSA General Counsel adds some detail:

    May 12, 2017

    Washington, D.C. – The U.S. General Services Administration (GSA) announces Richard W. Beckler as General Counsel. Beckler, an appointee of President Donald J. Trump, will oversee the Office of General Counsel and serve as the chief legal advisor to the Administrator.

    Beckler comes to GSA after a distinguished legal career in both public and private practice. Most recently, Beckler served as Partner and head of the litigation practice at Bracewell LLP in Washington, D.C.

    Prior to serving in private practice, Beckler was Chief of the Criminal Fraud Section at the U.S. Department of Justice. In this role, he led a task force on foreign payments where he worked in partnership with officials from the Department of the Treasury, Security and Exchange Commission (SEC), and the Department of State. While at Justice, Beckler prosecuted a variety of cases including SEC and government contracting fraud.

    Beckler is a former assistant district attorney in the Office of the Manhattan District Attorney, and was a lieutenant commander in the U.S. Navy Reserve.

    Beckler earned a Bachelor of Arts from Williams College, and a J.D. from Fordham University School of Law.

    Also there was a article from May 22, 2014 titled:
    Conquering corruption: FCPA costs show that crime does not pay in which a number of Beckler quotes appear.

    Here for example is a discussion on the difficulties of investigating foreign corrupt practices in places like Russia and the former Soviet Union.

    Problem regions

    Among the foreign nations most known for FCPA violations are China, Brazil, Mexico and India, as well as Russia and the other nations that formed the former Soviet Union.

    Kelly Kramer, a partner in Mayer Brown’s Washington, D.C. office and co-leader of the firm’s white collar defense and compliance practice, says that when it comes to Russia, the current geopolitical situation—with the government pressing the sovereignty of Ukraine—has an impact on possible prosecutions of the FCPA.

    Without cooperation of the Russian Ministry of Justice, the DOJ’s ability to obtain business records and prosecute cases is “constrained,” Kramer points out.

    “I don’t know how you are going to get evidence out of Russia,” Beckler adds. “It’s not that easy.”

    • earlofhuntingdon says:

      Little wonder that Donald Trump appointed a GSA GC whose primary expertise was litigation and knowledge of the FCPA from the criminal defendant’s perspective.  He also worked eight years as a director for an oil company. It seems that having experience with Russia (a major energy supplier to Europe and the world) is a requirement to work for Donald.  Why should that be?

      • bmaz says:

        Can we at least acknowledge that “litigation experience” usually means they have never seen a jury in their life?

        • cue says:

          Unless Richard Beckler invented a past this interview done for the Securities and Exchange Historical Society in 2012 indicates that Beckler had extensive trial experience prosecuting, among other things, criminal security fraud cases for the SEC in the 1970s. Mr Beckler provides the linkage between Watergate and the FCPA (and his involvement at the genesis of the FCPA) beginning on page 6.

          The question remains: how did an apparently qualified individual with experience end up in this critical position in a Trump administration.

        • Peterr says:

          It was an oversight, for which President Trump has sacked the person responsible. It will never happen again.

          /Sarah Huckabee Sanders

    • greengiant says:

      The crowd source suggests Beckler worked at Giuliani’s old law firm Giuliani spent more or less than 10 years at, one Giuliani left in January 2016 used to be named Bracewell and Giuliani.

  6. Wm. Boyce says:

    I think what continues to surprise is how f@cking stupid these Trump team people are. But if one considers that the corporate world from which they crawled into the government is largely closed to prying eyes, one shouldn’t be surprised – it’s simply business as usual.

  7. Deb in Manhattan says:

    Doesn’t it seem that the assertion of such a patently absurd and actually obstructionist letter itself contributes to an overall claim of obstruction of justice, particularly as it seems purposely focused on undermining the Special Counsel (and clearly is a signal to the Trump base of the latest most egregious violation that Fox News can trumpet from its studios as its latest attempt at a justification for Trump’s desire to order his firing)?

  8. johno says:

    Amazing what these idiots put in email. I wouldn’t even have those conversations in a low voice by the waterfall at the zoo with the cell phones left in the car.

  9. pseudonymous in nc says:

    So, when did the WH and those in the transition but not in the WH (like KT) become aware that the OSC had full possession of the transition’s .gov emails? It would have to be from someone:

    in the transition;
    interviewed by the Special Counsel (or the FBI before Mueller’s appointment);
    asked about specifics in transition emails;
    and either knew those emails hadn’t been disclosed to the OSC, or discussed them afterwards with someone who knew which emails had not been sent, who then had a holy-shit moment.

    (I suppose it could have been part of the information-sharing agreement between Flynn and WH lawyers. Or tied to Papadopoulos and his phone-wiping efforts.)

    As EW has said, the crisis PR letter happened because they worked out the how. But the when is blurry: September onwards, presumably, but when does that feed back into the general understanding of those under investigation? Presumably before the big fish show up and swear the oat, but far enough along for them to have done things that put them in jeopardy.

  10. orionATL says:

    seb gorka!

    you can pick whom you please, but i have been perpetualually curious about why seb gorka showed up early in trump org charts and stayed late, all the way into the whitehouse.

    what did this supposedly quarrelsome guy ever have to offer the trump admin?

    who was being loyal to gorka by giving him a whouse position?

    gorka sticks out like a sore thumb. he has national connections to countries like hungry and poland whose gov’ts the russian gov’t has already undermined and turned into quadi-russia’s

    now about a different matter – the inauguration and balls.

    my personal recollection was that a naturalized russian-american was in charge of some of that. is this true? who was the guy?

    in fact, i have the impression that a number of naturalized rusdian-americans gathered around trump. this is understandable from a team loyalty standpoint.

    the mueller question is, though, were they just joyous celebrants but nothing more?

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