“Cascading Problem of Contamination”: Lawyers Take Blowtorch To Mueller Email Seizure That “Likely Violated Law”
Legal experts weighing in on special counsel Robert Mueller’s seizure of Trump transition emails believe not only did the move likely violate the law, but may represent a larger problem for Russia investigators if they decide to go to trial.
Lawyer Robert Barnes argues the document grab “cannot conform to either Fourth Amendment standards or attorney-client privilege protections.”
In an op-ed titled “LEGAL ANALYSIS: Why Mueller’s Seizure of Transition Emails Likely Violated the Law” Barnes writes:
Courts held individuals who agreed, as a condition of employment to “any future searches” did not waive their right against such searches because the waiver failed to give them the “right to refuse to give consent to the future search.” For the government to claim implied consent or waiver, “requires clear notice that one’s conduct may result in a search being conducted of areas which the person has been warned are subject to search,” and such notice must ensure an individual “had knowledge of the right to refuse to give consent.” […] Hence, a broad waiver was found inadequate to permit a search. […]. The Supreme Court made it clear the question usually “must be addressed on a case-by-case basis” and rarely subject to blanket waivers of Fourth Amendment liberties. […]
Courts held that an employee has a reasonably expectation of privacy in the contents of his computer even when given specific notice the computers could not be used for personal purposes and the individual had authorized disclosure for technical and maintenance audits.
Courts held an ex-employee could assert attorney-client privilege against use of such emails by his company even though emails were located on employer’s computer and employer gave employee notice any documents stored on computer not protected.
In a piece titled, “Mueller makes reckless move with seizure of Trump transition emails,” legal expert Jonathan Turley mused in The Hill Monday about whether or not the special counsel may have doomed the Trump-Russia investigation by way of “fruit of the poisonous tree” theory.
Turley writes for The Hill:
It is important to note that Mueller’s move takes his investigation into uncertain legal territory and may ultimately create some new law in his favor. Then again it might not. The question is why Mueller would take the risk. […]
This could ultimately fall into the category of being careful what you ask for. Once again, the Mueller team showed little hesitation or circumspection in plowing into this controversial area. […] If the evidence was improperly seized, it could contaminate later evidence derived from it in a “fruit of the poisonous tree” theory. Mueller would not be the first to face such a cascading problem of contamination.
According to Axios boss Mike Allen, special counsel Robert Mueller secretly got his hands on “many tens of thousands,” of emails exchanged by Trump transition officials. Trump lawyer Kory Langhofer penned a blistering response to the news, accusing Mueller of unlawfully obtaining transition documents.
Mueller obtained the emails through the General Services Administration (GSA) that were sent using Presidential Transition Team addresses ending in “ptt.gov.”
GSA “did not own or control the records in question,” Trump for America lawyer Kory Langhofer wrote to Mueller.
Langhofer noted the special counsel’s office has “extensively used the materials in question, including portions that are susceptible to claims of privilege.”
Amid a flurry of legal opinions stating Mueller’s document grab was unwise to say the very least, the Wall Street Journal‘s Kimberley Strassel writes that while the FBI was abusing secrecy powers, Mueller was part of an effort to hide key information from Congress for months. Mueller and Rosenstein “refused to make Mr. Strzok available for an interview. It didn’t do all this out of fear of hurting national security, obviously. It did it to save itself and the FBI from embarrassment,” writes Strassel.
As The Gateway Pundit reported, President Trump’s legal team is setting the stage for its biggest showdown yet against special counsel Robert Mueller since the Russia probe began. Ahead of a highly anticipated meeting between Trump lawyers and special counsel investigators, an attorney for the President is demanding Mueller return transition documents believed to be unlawfully obtained. Knowing Mueller’s penchant for “fighting dirty,” it’s unlikely the special counsel will cede control of the emails, potentially forcing Trump lawyers to make some tough decisions about the investigation.