Can the FBI Get Away With Getting Trump Team Emails?
By Judge Andrew P. Napolitano
December 21, 2017 "Information
Clearing House"
- Within hours of his victory in last
year’s presidential election, Donald Trump
dispatched his lawyers to establish a
nonprofit corporation to manage his
transition from private life to the
presidency. This was done pursuant to a
federal statute that provides for
taxpayer-funded assistance to the newly
elected — but not yet inaugurated —
president. The statutory term for the
corporation is the presidential transition
team, or PTT.
In addition to paying the PTT’s bills, the
General Services Administration, which
manages all nonmilitary federal property,
provided the PTT with government computers,
software and a computer service provider.
During the course of the PTT’s existence,
the folks who worked for it sent or received
tens of thousands of emails. The PTT ceased
to exist upon Trump’s inauguration, and a
receiver was hired to wind it down.
Last weekend, a lawyer for the receiver
revealed a letter he sent to Congress
complaining that special counsel Robert
Mueller — who is investigating whether there
was any agreement between the Trump campaign
and the Kremlin that resulted in the
now-well-known efforts by Russian
intelligence to affect the outcome of the
2016 presidential election — dispatched FBI
agents to the GSA looking for copies of all
the PTT’s emails and that the GSA
surrendered them.
How did this happen?
When the FBI is looking for documents or
tangible things, it has several legal tools
available. They range in their disruptive
nature from a simple request to a grand jury
subpoena to a judicially authorized search
warrant.
The FBI request is the easiest for the
government, and if FBI agents ask you for
something and you give it to them, you
cannot later be heard to complain that your
privacy rights regarding the things you
surrendered were violated. If they seize
your documents pursuant to a subpoena or a
warrant, they normally get to use what they
have seized.
The issue becomes more complex when the FBI
comes calling for documents of yours that
are legally in the hands of a custodian —
such as your physician, lawyer, banker or
accountant. In the case of Trump’s PTT and
Mueller’s wish for all PTT emails, the
sought-after data — the electronic copies of
all the PTT’s emails — were in custody of
the GSA.
Anyone who has ever used a GSA computer is
familiar with the warning that appears on
the screen at the time of each use. It says
that there is no right to privacy in the
communications sent or received, as the
electronic versions of those communications
are the property of the federal government.
This, no doubt, is the reason Hillary
Clinton infamously used her husband’s
computer servers during her four years at
the State Department rather than the
government’s.
We do not know whether Mueller’s FBI agents
merely requested the electronic data from
the GSA or his prosecutors obtained a grand
jury subpoena. If it was a simple FBI
request and if the GSA simply complied, that
was a lawful acquisition by the FBI of the
PTT emails, yet in that case, the GSA
violated its fiduciary duty to inform the
PTT of the request before it complied with
it.
If the FBI came calling on the GSA with a
grand jury subpoena, that means Mueller’s
team must have presented evidence under oath
to a grand jury and demonstrated that the
sought-after items would more likely than
not be helpful to the investigation. When a
grand jury issues a subpoena to a custodian
of records — no matter who the custodian is
— it is the moral and fiduciary duty of the
custodian, not the government, to inform the
owner of the subpoenaed items that a
subpoena has been received.
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In
some cases, it is also the legal duty of the
custodian to inform the owner, but it
apparently was not in this case. As far as
we can tell, there was no written agreement
between the GSA and the PTT requiring the
GSA to inform the PTT of any document
requests or subpoenas. Had such a request
been revealed, the lawyer for the receiver
of the PTT would have had an opportunity to
challenge the government before a judge.
Without that notice, there is no time for
the challenge.
Until 1986, it was the duty of the
government when seeking documents or
tangible things from a custodian to inform
the owner, as well as the custodian, of its
intent. That fair procedure gave the owner
of the records time to challenge the
government before a judge. But the
Electronic Communications Privacy Act of
1986 (which has nothing whatsoever to do
with protecting privacy), enacted at the
dawn of the digital age, did away with that
requirement.
Now if the custodian remains silent in the
face of an FBI request or a grand jury
subpoena, the owner of the documents loses
his opportunity to keep them from the
government. That is what happened here.
But there is more.
The practical effect of Mueller’s
acquisition of the transition emails could
be devastating to White House staff who once
worked for the transition. Many of them have
been interviewed by the FBI while no doubt
being ignorant of the fact that the FBI had
read their emails. Stated differently, the
FBI was in a position to lead Trump White
House staff members into a lying trap — just
as it did with retired Lt. Gen. Michael
Flynn — by asking them questions to which
the FBI already had the answers.
Lying traps are reprehensible, but they’re
lawful. And they are not unique to Mueller’s
practices; it is the way the feds work
today. Can the FBI get away with getting the
Trump team’s emails? In a word: yes. This
investigation is not going away soon.
Judge Andrew P. Napolitano sat on the bench from 1987 to 1995, during which time he presided over 150 jury trials and thousands of motions, sentencings and hearings. He taught constitutional law at Seton Hall Law School for 11 years, and he returned to private practice in 1995. www.creators.com
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