The big issue about the Mueller investigation today is just how it obtained thousands of emails sent or received by the Trump transition team. The Special Prosecutor's office says that it either got materials "with the account owner's consent" or by "appropriate criminal process". The emails were in accounts of the Trump transition team which were housed on servers of the General Services Administration. According to lawyers for the transition team, neither they nor their client were even aware that the Mueller group had gotten access to the emails. That was only discovered when people from the Mueller group used the emails to question witnesses a short time ago. The lawyers for the transition team say that many of the emails are privileged, and that all were obtained in violation of the Fourth Amendment rights of their client.
Let's stop here for a minute. If the claims of the Trump transition team are true, then it will be a disaster for the Mueller effort. A prosecutor cannot obtain evidence in an improper search or seizure. Nor can the prosecutor get access to privileged materials without there being serious consequences. The doctrine used to be called "fruits of the poisonous tree". It means that the items obtained improperly cannot be used and proof that gets generated from access to those items also cannot be used. The prosecutor has to be able to show that he or she had a method of obtaining the proof which was actually used that was wholly independent of the illegally obtained items. Let me give you an example. Let's say that one of the emails of the transition team mentions that there was a meeting between Mr. A from the transition team and someone who works for the Russian government. Let's say further that the Mueller team has no proof that it knew about that meeting prior to reading the email. The law requires at that point that no proof of the meeting or what happened in that meeting or as a result of that meeting will be admissible in evidence at a trial. If the emails are privileged as attorney client communications, the restrictions will be even more severe. In other words, if these emails were obtained illegally or if they are privileged, the Mueller team has a very major problem.
So were these obtained illegally? That's not a simple question. The question seems to depend on whether or not these emails are government documents. If they are, then they may be subject to being turned over by the GSA. On the other hand, if they are not government documents, then the GSA had no right to turn them over. The documents belong to the transition team and can only be obtained by a subpoena served on the transition team (which never happened.) Further, it seems clear that no one ever reviewed the emails for privileged documents before they were turned over to Mueller. If, indeed, there are privileged documents in the batch turned over, then there will be hell to pay.
This is big stuff.
Let's stop here for a minute. If the claims of the Trump transition team are true, then it will be a disaster for the Mueller effort. A prosecutor cannot obtain evidence in an improper search or seizure. Nor can the prosecutor get access to privileged materials without there being serious consequences. The doctrine used to be called "fruits of the poisonous tree". It means that the items obtained improperly cannot be used and proof that gets generated from access to those items also cannot be used. The prosecutor has to be able to show that he or she had a method of obtaining the proof which was actually used that was wholly independent of the illegally obtained items. Let me give you an example. Let's say that one of the emails of the transition team mentions that there was a meeting between Mr. A from the transition team and someone who works for the Russian government. Let's say further that the Mueller team has no proof that it knew about that meeting prior to reading the email. The law requires at that point that no proof of the meeting or what happened in that meeting or as a result of that meeting will be admissible in evidence at a trial. If the emails are privileged as attorney client communications, the restrictions will be even more severe. In other words, if these emails were obtained illegally or if they are privileged, the Mueller team has a very major problem.
So were these obtained illegally? That's not a simple question. The question seems to depend on whether or not these emails are government documents. If they are, then they may be subject to being turned over by the GSA. On the other hand, if they are not government documents, then the GSA had no right to turn them over. The documents belong to the transition team and can only be obtained by a subpoena served on the transition team (which never happened.) Further, it seems clear that no one ever reviewed the emails for privileged documents before they were turned over to Mueller. If, indeed, there are privileged documents in the batch turned over, then there will be hell to pay.
This is big stuff.
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