Robert Mueller in 2012. Official White House photo by Pete Souza, via Flickr.
There is more than a little irony in the criticism special counsel Robert Mueller’s office is taking over how it came into possession of thousands of emails from the Trump transition team.
After all, the route to Mueller’s appointment began with Hillary Clinton’s misbegotten decisions to house her own emails as secretary of state on a private server, and then to obliterate some 30,000 that she and her lawyers deemed “personal” before turning over the balance to their rightful owner, the U.S. government.
A series of hacks, blamed by U.S. intelligence on Russian operatives, targeted various Democratic officials during the 2016 presidential campaign, and at one point Trump himself seemingly encouraged hackers from Russia (or anywhere else) to retrieve and disclose those 30,000 missing emails if they could. It never happened, but there were enough other embarrassing disclosures to prompt Democratic accusations of collusion between the Trump campaign and the Russians, which ultimately led to Mueller’s appointment.
Although Mueller certainly seems to view his mandate in broad terms, he has shown little interest in the missing Clinton emails, at least publicly. He is plenty interested in other emails, however – notably those of the Trump transition team, which operated for the 73 days between Election Day and Inauguration Day.
Unlike the missing Clinton emails, the Trump records are available for Mueller and the rest of the legal system to evaluate, because they were preserved on government-run servers and devices.
The General Services Administration, a government agency, handled the emails for Trump’s Presidential Transition Team, which were hosted at ptt.gov. Despite the GSA’s role in hosting the emails, however, the transition team’s legal representative has argued that the organization’s emails should be properly considered private property, not government records. The transition team should thus have had, at a minimum, the option to review the documents before they were handed over to Mueller and his investigators. The transition organization, through a letter from its attorney to a pair of congressional committees, claims Mueller and his crew improperly obtained the emails from GSA staff who either carelessly or maliciously handed over privileged information that was not theirs to release.
GSA officials have disputed the transition team’s characterization of what happened. And Mueller’s office issued a statement Sunday saying it obtained the records properly – either with the account owners’ consent (clearly not the case with the transition team, considering the action by their attorney) or through the “appropriate criminal process.”
Maybe that process was appropriate; maybe it wasn’t. If Mueller brings charges relating to anything covered in those emails, the courts will probably decide whether seizure of the records was inappropriate and, if so, if that fact requires resulting evidence to be suppressed or charges to be dismissed.
If Mueller’s team did, in fact, act properly, the only harm is to the presidential transition process itself, which is something Congress can and should address, as the Trump transition organization’s legal team has suggested. Transition teams currently occupy an unusual gray area, as private organizations controlled by presidents-elect or their representatives. Congress has the power to clarify such organizations’ expectations of privacy and relationship to the federal government, and it would be wise to do so.
Either way, the legal process can work as intended because, unlike Clinton, Trump’s team did not evade the government’s mechanisms for preserving official documents and submitting them to third-party review. It is possible Mueller’s team had no right to access those records without a subpoena, but nobody had to hack a server or try to retrieve materials off a hard drive that had been “wiped” in order to get it. The Trump transition team has not behaved in a way that makes it look like it felt it had something to hide. The same cannot be said of the former secretary of state who once hoped to have her own transition team.