The Trump team’s complaint is the latest in a series of legal maneuvers seeking to challenge the special counsel’s authority.
A lawyer for President Donald Trump’s transition team is accusing special counsel Robert Mueller of unlawfully obtaining tens of thousands of private emails during its investigation into Russian meddling in last year’s presidential election.
Kory Langhofer, an Arizona-based attorney representing Trump for America, spelled out the complaint in a seven-page letter sent Saturday to the main House and Senate oversight committees where he raises potential violations of attorney-client privilege and the Fourth Amendment, which protects against unlawful search and seizure.
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Mueller’s office got the records earlier this summer from the General Services Administration, the government agency charged with holding all transition materials, even while it was “aware that the GSA did not own or control the records in question,” Langhofer wrote.
The Trump attorney also argued that Mueller’s office has “extensively used the materials in question” during its investigation even though its prosecutors were aware some of the materials were subject to claims of attorney-client privilege and other protections.
A Mueller spokesman, Peter Carr, declined comment on the letter. A GSA spokesperson could not be immediately reached for comment.
The Trump team’s complaint – which a source close to the transition said it intends to elevate by filing a formal letter to Mueller — is the latest in a series of legal maneuvers seeking to challenge the special counsel’s authority. The effort to rein in the probe is expected to increase as the Russia prosecutors continue their work while they simultaneously prepare for a criminal trial next year against former Trump campaign chairman Paul Manafort and his deputy, Rick Gates.
Several former Justice and national security officials and experts in federal criminal law cast doubt Saturday that the Trump transition team’s complaint amounted to a serious breach.
“I seriously doubt there is anything here to taint the [Mueller] investigation,” said William Jeffress, a white-collar defense attorney who represented Vice President Dick Cheney’s senior aide, I. Lewis “Scooter” Libby, during the Valerie Plame CIA leak investigation. Jeffress added the letter included no evidence to prove any privileged information had been obtained by Mueller’s team and that even if it were, there are procedures for retrieving them.
Democrats and Trump critics erupted after news of the letter broke, warning that the allegations against Mueller smacked of a pretext for Trump firing him. White House attorney Ty Cobb on Saturday declined comment about the transition team’s specific complaint, but he insisted to POLITICO that an ouster of Mueller isn’t in the offing.
“As the White House has repeatedly and emphatically said for months, there is no consideration at the White House of terminating the special counsel,” Cobb said.
According to Langhofer’s letter, the Trump transition team first learned that the special counsel had obtained the emails from GSA earlier this week. It took those concerns to Brandon Van Grack, a Mueller prosecutor, who confirmed the special counsel’s prosecutors had obtained laptops, cell phones and at least one iPad from GSA.
“But he assured us that the Special Counsel’s investigation did not recover any emails or other relevant data from that hardware,” Langhofer said.
The Trump attorney added that, during the conversation, Van Grack “failed to disclose the critical fact that undercut the importance of his representations, namely, that the Special Counsel’s Office had simultaneously received from the GSA tens of thousands of emails, including a very significant volume of privileged material, and that the Special Counsel’s Office was actively using those materials without any notice to TFA.” Van Grack also declined to identify the 13 transition officials whose materials the special counsel’s office had obtained.
In subsequent conversations, Van Grack declined to spell out what procedures the special counsel’s office had undertaken to protect the transition’s privileged communications and he also acknowledged Mueller hadn’t set up the kinds of ethical reviews required to protect the evidence and “instead simply reviewed the privileged communications contained in the PTT materials,” Langhofer said.
Trump’s transition lawyer also took aim in its letter at GSA, which it accused of “unlawful conduct” that undermines the Presidential Transition Act of 1963, a law that spells out the procedural rules for a change in power from one president to the next.
After learning in March that Russia investigators were seeking its records, Langhofer said he contacted GSA to get assurances that the transition’s lawyers would be the conduit for the materials. Then-GSA General Counsel Richard Beckler in June explained to him that all requests for the transition’s communications would indeed be routed through its lawyers and that GSA would hold all of the material in secure facilities.
But in August, while Beckler was in the hospital and incapacitated, Mueller’s office and FBI agents approached GSA twice for Trump transition materials, Langhofer said. GSA career staff, he added, produced the materials without making exceptions for attorney-client, deliberative process or presidential communications privileges.
Beckler died in September, and career GSA staff didn’t consult or inform his successor of what Langhofer called “the unauthorized production of PTT materials.”
Ken Nahigian, the Trump transition’s executive director and trustee, said in an interview that GSA’s decision to share the emails with Mueller’s office would have a long-term detrimental effect for future transitions. “Future transitions will have to re-examine this relationship,” he said. “Justice by any means isn’t justice.”
The latest complaint against Mueller comes amid a barrage of criticism from Trump allies that the special counsel investigation itself is tainted on multiple fronts. Republicans have increasingly urged Trump to fire Mueller regardless of the political consequences.
The special counsel – on the clock since mid-May, though he did inherit more than a year’s worth of FBI investigations related to the election hacking and other lines of inquiry – has already obtained a guilty plea and cooperation from former national security adviser Michael Flynn. That followed criminal indictments against Manafort and Gates on charges that include money laundering and tax evasion. Both men have pleaded not guilty and a trial is expected next year. The special counsel has also obtained a guilty plea from former Trump campaign foreign policy adviser George Papadopoulos for lying to the FBI.
As the Trump transition complaint surfaced Saturday, several Democrats and former Justice officials cautioned that it may be an additional attempt at casting doubt on Mueller’s integrity.
“’Private documents’ on a US Government, public email system? What are they afraid was found? Baloney. This is another attempt to discredit Mueller as his #TrumpRussia probe tightens,” Rep. Eric Swalwell, a California Democrat and member of the House Judiciary and Intelligence panels, posted on Twitter.
Rep. Elijah Cummings, the top Democrat on the House Oversight and Government Reform Committee, questioned why Trump officials would be taking issue with an attempt by GSA to cooperate with investigators.
“Our committee has direct jurisdiction over the Presidential Transition Act, and it simply does not support withholding transition team emails from criminal investigators,” the Maryland Democrat said. “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.”
“Why are Trump’s lawyers upset that Mueller obtained transition emails from a government agency? (Hint: They’re just playing politics, but this is a bad sign for them.),” added former federal prosecutor Renato Mariotti on Twitter.