The striking thing about the latest Mueller investigation controversy — a kerfuffle over the special counsel’s acquisition of voluminous files from Trump’s transition organization — is how unnecessary it is.
As the word transition implies, an incoming president’s transition team is not yet in the government the president-elect will soon be running. It is thus in an ambiguous state: a private entity that is being briefed on government operations as it conducts preparations for governing; an entity through which private persons (i.e., non-government officials) are communicating with public officeholders and other private citizens in order to recruit potential administration officials, discuss policy, and understand the responsibilities the new administration will be taking on. There are obvious legal matters to be discussed, and hence the involvement of lawyers and discussions that are potentially privileged. There are strategic deliberations that go into public announcements and the formulation of policy.
That is why, if a prosecutor and investigators want to review presidential transition files, they should make the request directly to counsel for the presidential transition. That is the way to sort out any knotty legal issues, with court intervention if necessary, so that they do not become public controversies. But that is not the Mueller way, as we saw with the utterly unnecessary pre-dawn raid on the home of Paul Manafort — busting in with a search warrant and guns drawn, at the very time Manafort was cooperating with congressional committees, and when he was represented by well-respected lawyers through whom Mueller could have requested production of whatever materials he was seeking.
Mueller’s investigation is examining whether Trump campaign officials “colluded” in Russia’s espionage operations to interfere in the election, and whether contacts between Trump associates and Russian operatives amounted to actionable corruption. That being the case, the relevance of at least some transition materials is obvious.
Mind you, I do not believe Mueller’s investigation is appropriately conceived. As I’ve been arguing since before Mueller was appointed, our American tradition is that there must first be strong reason to believe a specific crime was committed before a prosecutor should be assigned to investigate. Here, Mueller has been commissioned by Trump’s own appointed deputy attorney general to conduct a fishing expedition in the absence of cause to believe Trump committed a criminal offense. In effect, nothing is off limits, so why should transition files be off limits?
But let’s put aside complaints about what, in effect, is Mueller’s “general warrant” (the kind of broad, non-particularized, abusive investigative license the Fourth Amendment was adopted to guard against). After all, there is a criminal investigation of “Trump collusion with Russia,” regardless of whether I think there should be. That being the case, it would be foolish to discount the likelihood — the certainty — that there is information in the Trump transition files about the incoming administration’s contacts with Russia and other foreign countries. Indeed, it is well known that Michael Flynn and Jared Kushner, transition officials, had multiple contacts with Russian officials.
Based on the letter one of the lawyers for Trump’s transition team has sent to Congress, there is abundant reason to believe that Mueller’s investigators were well aware that Trump’s transition organization, Trump for America (TFA), claimed ownership and control of the presidential transition team (PTT) records. The repository for those records was a government agency, the General Services Administration, but GSA was basically a filing cabinet, not a transition operative, much less the decision-maker about the disposition of the files.
The main issue here is not whether Mueller had the legal power to request that GSA, the third-party custodian, voluntarily turn over all the PTT records to the special-counsel investigation. It is also not whether GSA had the authority to comply with the request. The real question is why did Mueller choose to proceed in this sneaky manner?
Mueller’s staff could easily have contacted President Trump’s legal team and/or TFA and explained what categories of documents it wanted to examine. In all probability, Trump and TFA lawyers would have conceded that there were documents Mueller was entitled to review, but would have held back a great deal of material as arguably privileged. Then, as in the normal course, if the prosecutor wanted to press the issue, Mueller could have issued a grand-jury subpoena and the two sides could have hashed out their differences, with the intervention of the judge supervising the grand jury — a judge who, as we’ve previously pointed out, seems highly sympathetic to the investigation of Trump’s campaign.
In the end, Mueller would have gotten whatever files he was entitled to review, and Trump’s counsel would have been permitted to withhold anything that was truly privileged. My sense is that the privilege claims posited this weekend by TFA’s lawyer are extravagant. Trump was not president yet, so the suggestion that the transition files are covered by some extension of executive privilege is dubious. Even if GSA did violate an understanding with TFA to alert TFA to any requests for PTT records rather than surrendering them, that would be of little moment with respect to any records Mueller was lawfully entitled to demand.
The Washington Post’s report seeks to debunk the TFA privilege claims by relying on the analysis of Randall Eliason, a law professor and former prosecutor. Professor Eliason contends that the Trump transition people had no expectation of privacy because they were using government communication facilities and their email addresses ended in “.gov.” Respectfully, I don’t see how that bears on whether there were emails subject to attorney-client and deliberative-process privileges, which the government itself claims all the time in refusing to disclose information. Still, I doubt these privileges, to the extent they obtain at all, cover the PTT materials as extensively as the TFA lawyer suggests. My beef with Mueller’s request is less technical than practical: Most of the thousands of files he has obtained and is poring over have utterly nothing to do with his investigation. To grab thousands of electronic records was overkill, just as the investigation, for the most part, is overkill.
To grab thousands of electronic records was overkill, just as the investigation, for the most part, is overkill.
Three final thoughts:
First, I again ask: Why on earth does Mueller need a staff of 17 lawyers? The justification for this empire-building is that it ensures adequate resources can be thrown at complex legal issues that arise in an investigation of the president involving classified matters and foreign intrigue. Yet here again we see Mueller’s team, rather than working out a careful legal arrangement with lawyers for the witnesses to guard against tainting their investigation, using the bully approach — because, they reckon, they can. Consequently, we have a mess where we shouldn’t even have an issue. The Trump camp is now claiming Mueller, in addition to refraining from giving the Trump lawyers a heads-up about the request for transition materials, failed to set up rudimentary guard rails — such as a “taint team” to pre-screen the materials and make certain Mueller’s investigators were walled off from anything privileged that they should not have examined (a lapse that could eventually lead to defense motions to suppress evidence and dismiss charges).
Second, I often think that in their disdain for Trump, Democrats and some members of Mueller’s staff have convinced themselves that this situation is sui generis — i.e., because there’s never been any phenomenon like Trump, there is no need for worry that their aggressive tactics will have any precedential effect on future presidencies or presidential transitions. But they are wrong. The less it appears there is any criminal “there” there, the more this investigation becomes a criminalizing of politics. Why would the kind of solid people you’d like to see in government agree to serve if the price is crushing lawyer’s fees and the stigma of criminal suspicion — based, so far as I can tell, on precious little evidence of crime.
Finally, I can’t help thinking we’re seeing a gaslighting gambit. Last week, there were disturbing revelations about misconduct and rampant bias in Mueller’s investigation. In an effort to turn the page, Democrats and their media allies have choreographed three days of drama, fervidly suggesting that Trump is on the verge of firing Mueller — notwithstanding that (a) Trump has stated that he has no intention of dismissing the special counsel and (b) firing Mueller at this stage, when he has not laid a glove on Trump, would be an epic mistake. In that context, this dust-up over documents that Mueller has apparently had for a while is being inflated into a major breach of faith — one that will finally induce the reckless, mercurial Trump to fire Mueller the minute Congress vacates Washington for the holiday recess.
In reality, it is much ado about nothing. Trump is not going to fire Mueller, we are not on the precipice of a constitutional crisis that will tear the union asunder, and the disputed documents are not going to make or break the case. Mueller’s aggressive staffers will continue scorching the earth for a while because that is what they know how to do, and apparently no one at the Justice Department is going to tell them they can’t. But we’re no closer to establishing “collusion.”