Legal Specialists Defend GSA's Handover of Transition Emails to Mueller Probe
By Charles S. Clark
December 18, 2017
The normally staid General Services Administration over the weekend found itself at the center of the legal and political storm surrounding special counsel Robert Mueller’s investigation of Donald Trump’s presidential campaign, transition team and White House over possibly inappropriate ties to Russia.
The agency known as the government’s landlord—which by law supplies office space, equipment and guidance to incoming presidential transition teams—drew fire in a letter to key lawmakers sent Friday by Kory Langhofer, counsel to the nonprofit organization Trump for America.
Trump’s private attorney objected, as first reported by the Associated Press, to GSA’s “unlawful” accession to a request from Mueller for tens of thousands of emails from Trump transition operations without alerting the Trump for America group. Calling the documents “private materials” and “privileged,” Langhofer accused Mueller of knowing that GSA “did not control” the documents. The FBI also took cellphones, laptops and iPads from the transition, he wrote.
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The letter, which cited provisions of the Presidential Transition Act going back half a century, asked House and Senate oversight chairmen to take action. “The GSA’s malfeasance in this matter necessitates a legislative response,” Langhofer wrote. “Whether born of gross misunderstanding of the Presidential Transition Act, or a deliberate effort to violate the rights of TFA, the actions of career GSA staff underscore the need for immediate statutory amendments to protect future presidential transitions from bureaucratic arrogations and political interference.”
GSA told Government Executive it is not commenting. But Peter Carr, a spokesman for the special counsel’s office, 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.”
A spokesman for Rep. Trey Gowdy, R-S.C., chairman of the House Oversight and Government Reform Committee, said via email, “The central issues raised are fact-specific legal issues which involve issues of privilege, waiver (express, implied, actual and constructive), standing to assert claims of privacy, expectations of privacy and the reasonableness thereof, third party consent, statutory constructions, and inevitable discovery among other issues.” Hence those issues should be resolved by courts, not Congress, though “to the extent the letter raises issues on how to improve subsequent transitions, the committee takes the letter under advisement.”
Committee ranking member Rep. Elijah Cummings, D-Md., said on Sunday, however, that: “Our committee has direct jurisdiction over the Presidential Transition Act, and it simply does not support withholding transition team emails from criminal investigators. The president’s lawyers have said they want to fully comply with Special Counsel Mueller’s investigation, so it is odd that they now suggest they would have withheld key documents from federal investigators.”
Government Executive interviews with legal specialists and transparency advocates—as well as a rare interview with GSA’s acting counsel published in Buzzfeed—suggest a consensus that Mueller has the law on his side.
The dust-up arose at a time when some Republican lawmakers and conservative news outlets are blasting the Mueller probe of Trump’s team for alleged political bias. President Trump himself, over the weekend, responded to reporters by saying that, while he has no plans to fire Mueller as some have speculated, “a lot of lawyers thought that was pretty sad” how Mueller obtained the transition emails. “It’s not looking good,” Trump said.
Trump’s attorney, in making his case to the chairmen and ranking members of the Senate Homeland Security and Governmental Affairs and House Oversight and Government Reform panels, listed guidance from the Justice Department and National Archives and Records Administration to stress that a presidential transition is a private organization whose documents are not “federal records” unless an agency acquires them.
“The materials that [the President-Elect’s Transition Team] members create or receive are not federal or presidential records, but are considered private materials,” the National Archives wrote in an advisory in November 2016. “However, transition briefing materials created by a federal agency and agency communications with the PETT are federal records and must be managed in accordance with an approved agency records schedule. “
The Justice Department, in a fact sheet on Freedom of Information Act issues, made a similar point, as did a guidebook on presidential transitions updated in 2016 by the nonprofit Partnership for Public Service. “A transition document becomes subject to FOIA only after it is brought into the agency by an appointee or transition team member,” the booklet said. “In 2008, the Obama transition took care to analyze the applicability of FOIA to their work, and future transitions would be well served to follow suit.”
The Trump counsel further argued that Trump-appointed GSA General Counsel Richard Beckler—who died in September of pancreatic cancer—this summer had agreed with the Trump transition team that the documents were private and privileged.
That view, however, was contradicted by acting GSA General Counsel Lenny Loewentritt, a four-decade GSA veteran who was quoted on Saturday by Buzzfeed saying Trump transition team members were warned that information "would not be held back in any law enforcement" investigation and that "no expectation of privacy can be assumed."
GSA had recommended that Mueller issue a warrant or subpoena, Loewentritt added, but Mueller’s office thought a letter request was sufficient.
“Because the Trump for America transition team used government computers and email systems provided by the General Services Administration, they should have known that GSA wouldn’t hold back those email records in response to requests for them by Special Counsel Mueller,” John Maloney, a former federal administrative judge now an attorney representing federal employees, told Government Executive. “In fact, Trump transition officials signed agreements that warned them that materials kept on the government servers are subject to monitoring and auditing. Hence, there is no expectation of privacy.”
Richard Painter, ethics officer for the George W. Bush White House now a law professor and ethics critic, agreed that users of taxpayer-supported servers should not expect Mueller to be denied documents “already in the hands of the U.S. government at GSA.” He said a similar claim of attorney-client privilege cited by President Clinton in resisting demands from a special counsel was rejected.
William Cowden, an attorney affiliated with the Federal Practice Group, said he found it interesting that the statement from Mueller’s spokesman was “finessed” in that it didn’t specify whether the documents were requested or demanded under threat of a subpoena. “It’s fascinating that Trump’s lawyer didn’t go to court to get an order from a judge, saying this is improper and we want you to do something about it,” Cowden added. He said he suspects “the lawyers looked at it and decided it was a political, not a legal issue.”
Chris Lu, the former deputy Labor secretary who was executive director of the Obama-Biden transition, told Government Executive, “During the 2008-09 transition, we approached our use of email as if we were working in the federal government, so we had no expectation of privacy. The Trump transition's complaints are nothing more than an effort to undermine the special counsel's investigation.”
Political scientist Martha Joynt Kumar, who documents presidential transitions, said the issue raised by Trump’s lawyer is “more a political distraction than it is a legal question. The agreement between the Trump transition and the Obama administration limits the confidentiality of information ‘to the extent permitted by law,’ ” she noted. “When you have ptt.gov as your email address, you can expect the government to have a compelling interest.”
Transparency groups also appeared to agree. Danielle Brian, executive director of the nonprofit Project on Government Oversight, said, “From our perspective, it’s a nonissue. We’ve spoken to previous transition officials, and it sounds as though the Trump transition believed they had privacy protection, but they’re just wrong.”
Jordan Libowitz, communications director for Citizens for Responsibility and Ethics in Washington, said, "The GSA made it clear that there was no expectation of privacy from law enforcement on their devices. If the president's team had a legal case, they'd be making it in court, not with a letter to Congress and a speech in the press. This is just political grandstanding in an attempt to damage people's opinion of the investigation."
But Trump’s lawyer cited politics in the opposing position. “As recent events have unfortunately illustrated,” Langhofer wrote the lawmakers, “such inquiries are vulnerable to the taint of partisan agendas, political bias and other malign machinations.”