Mueller's Access to the Transition Emails and the Fourth Amendment

The nerd version.

|The Volokh Conspiracy |

I wrote a long post over at Lawfare analyzing whether Mueller's investigators violated the Fourth Amendment in accessing the Presidential transition's e-mails. It begins:

There has been a lot of buzz in the last day or two about claims by Kory Langhofer, counsel for Trump for America, that Mueller's investigators wrongfully obtained copies of the presidential transition team's emails. One of the claims in Langhofer's letter is that the access violated the Fourth Amendment. I haven't seen a substantial legal analysis of the issue yet, so I thought I would try one.

My bottom line: Langhofer's claim that access to the emails violated the Fourth Amendment is likely wrong. At the same time, it's not necessarily frivolous. And depending on how the facts turn out, it may be plausible.

You can read the whole thing over at Lawfare.

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  1. I struggling a bit to reconcile these two parts of Prof Kerr’s analysis :

    We can start by recognizing the general agreement that the contents of remotely stored e-mail are ordinarily protected under the Fourth Amendment.

    If you see this as a private-sector privacy case, you likely get to the same result. But you get there in a slightly different way. Under that assumption, the unambiguous policy likely gives the provider (here, the GSA) common authority to give third-party consent to disclose the materials to others.

    Leaving aside Quon (which he obviously thinks is on the flaky side) I read from this that you start off with 4th Amendment protection, but the third party can hand your stuff over to law enforcement anyway, if it feels like it.

    So if the 3rd party hands your stuff over, there’s no 4th Amendment violation. And any beef you have with the third party handing your stuff over is just a civil thing between you and the third party ?

    Memo – host your own emails. Hillary’s not so dumb after all.

    1. Just like getting something out of a safe deposit box at a bank, all it is a subpoena to force compliance.

      1. Except the material was not handed out in response to a subpoena. Or even a warrant. As Prof Kerr says. we don’t know if there was a warrant, but it wasn’t produced because the GSA was willing to hand over the stuff anyway. But for the present we’re analysing it assuming that there was no warrant.

        So, flipping to your simpler analogy of a safe deposit box, when the Feds approach the bank and ask to look into your safe deposit box, if the bank says sure, fine, whatev – what are the implications ?

        If the bank’s deal with you is that they retain the right to let law enforcement into your box at their discretion, then :
        (a) you would presumably have no contractual cause of action against them, and
        (b) there’d be nothing wrong with the search, since you have no expectations of privacy

        But if your deal with the bank is that they’ll hold your stuff and not let anyone in to look at it, except as required by law; but they let law enforcement in without a warrant, then

        (a) they would seem to have broken their contract with you, opening themselves up for a civil lawsuit
        (b) law enforcement might have opened themselves up to a suit for tortiously inducing a breach of contract and
        (c ) your reasonable expectation of privacy would seem to have been infringed

        1. So my question is – how are Prof Kerr’s two statements reconciled – the 4th Amendment protection and the fact that the provider can negate your 4th Amendment protection. Is it simply that you are in the hands of your provider, but if the provider chooses not to hand over the stuff voluntarily, but insists on seeing a warrant, then your 4th Amendment protection kicks in, in the application for the warrant and any subsequent proceeding as to whether the warrant was properly granted ?

  2. “Hillary’s not so dumb after all.”

    I thought the charge was criminality, not dumbness.

    1. The right had better hope not, or else much of the Trump transition team better watch their butts, as they’ve already been shown to do much worse.

      1. Cites?

        1. The comment system is eating my links, but I’m talking about the private servers, Russia back channel discussion.
          Kushner’s repeated falsification of foreign contacts disclosure.

          And, of course, the indictments and guilty pleas.

    2. Dumbness was the defense, not the charge.

  3. A couple of other queries that spring to mind.

    1. Insofar as promises of confidentiality from Mr Third Party are relevant, is the timing of the promise relevant ? ie does the promise of confidentiality have to be made before the email is created for the promise of confidentiality to be relevant. ?

    2. How do indirect promises work ? So I’m an employee of Grand Widgets Corp. Sloppy Computer Services Inc hosts Grand Widgets email system. The contract between GW and SCS provides that stored emails are confidential. Assuming that Grand Widgets doesn’t give its employees any instructions advising them of this confidentiality provision in the GW and SCS contract, I presumably don’t have any expectation of privacy, so does the confidentiality provision in the contract become irrelevant 4th Amendment wise ? But I’m OK if my employer has mentioned the confidentiality provision to its employees ? And what about if there’s no confidentiality agreement between GW and SCS, but my employer tells me there is. Do I now have a real 4th Amendment expectation of privacy ?

  4. Bo-ring. You’re supposed to give us a definitive answer that meshes exactly with my preconceptions, thus allowing me to mock anyone who disagrees with me.

    1. Sorry, I’m new to this whole “weblog” thing.

    2. Prof. Kerr’s posts always catch me between my two favorite cognitive shortcuts: narritivism and deferring to an honest expert.

  5. My bottom line: Langhofer’s claim that access to the emails violated the Fourth Amendment is likely wrong. At the same time, it’s not necessarily frivolous. And depending on how the facts turn out, it may be plausible.

    Oh, come on, now we need three-handed lawyers?

    1. At least. After all, most clients have four pockets.

  6. What annoys the Republicans is it seems Mueller’s on a fishing expedition now. He’s just going to to lurk around the bookstacks and rifle through papers every now and then until he can find some excuse to nail the Administration on. And so Wapo/NYT can run a major newcycle on every supposed lead than ends up petering out. If there was some major Nixonian conspiracy afoot it should have been obvious and uncovered long before now.

    1. Uh, you know that it was more than two years between the Watergate break-in and Nixon’s resignation, right?

      1. 803 days! Go win some beers.

      2. You know that they knew there was a breakin immediately? And that the people who did it worked for the President, too, IIRC.

    2. Even the DOJ Inspector General said it’s likely going to take a year and a half to review the Hillary Clinton email investigation. You have to give Bob Mueller at least that much time; he has to find the evidence.

      1. Even if you allow a year and a half, the investigation started nine months before Mueller was appointed. So eighteen months is up pretty much up.

        1. White collar investigations are like 4-5 year affairs.

          This has a better staff than the average, but harping on the pace as evidence of bad faith is ridiculous.

          1. To be clear, I never took White Collar crime, but this is what I understand from prosecution clinic.

          2. This started out as a counterintelligence investigation. It’s supposed to be protecting us from the national security threat posed by Russkie interference. Any criminal aspects are strictly incidental to the national security aspects.

            4-5 years is ridiculous. The USA’s participation in the Second World War lasted less than 4-5 years.

            1. That’s an odd metric for comparison. But I’d be down to argue that the law favors the rich to the point that the due process they get is much much more than your average thief or druggie.

              Who does it matter how it started? Mueller’s current warrant includes a criminal component.

              1. Sorry if I was unclear. If it was validly started as a counterintelligence investigation (to look into the possibility of Russian interference in the election) then one would hope that this would be dealt with as quickly as possible. You don’t want a manana approach to national security threats. Hence the WW2 metric. I think we can probably agree that WW2 involved quite a serious national security threat, and we managed to tidy it up within a 4-5 year timescale. The counterintelligence aspects of the Russian thing is, I hope we can agree, a smaller issue than WW2, by three or four orders of magnitude. So it should be done by now, if it was intended to be taken seriously as a counterintelligence matter. Indeed it should have been done even before Comey was fired.

                Now I quite agree that if there are incidental criminal things discovered along the way, then they might take a bit longer. Because evidence. Because due process .

                But where’s the counterintelligence investigation report ? Has the President seen it ? Have the Congressional Committees seen it ?

    3. And so Wapo/NYT can run a major newcycle on every supposed lead than ends up petering out.

      Kind of like they did with the Benghazi investigation, huh?

      Tell you what: Let’s give it the same amount of time we gave the investigations into fishy real estate deals in Arkansas and whether the Secretary of State directed a subordinate to lie about the proximate cause to the Benghazi attack. I expect that’ll give us until well into the 20’s. And then, if all that comes out of it is a “process crime” and an exoneration, you can tell us that you told us so.

      Fair?

  7. But, isn’t it the argument of the Trump transition team that they have not just a promise of confidentiality, but a *statutory* promise of confidentiality?

    Re: Unauthorized Review of Private, Privileged Materials by the Special Counsel’s Office

    And that they had a memorandum of understanding that transition records would be deleted?

    “The MOU provided that the GSA would delete “all data on [computing] devices” used by the PTT.
    See MOU ? pp. 3, 10. This is both (a) is consistent with memoranda of understanding that the GSA
    executed with Hillary Clinton and Mitt Romney and (b) would be unlawful if presidential transition
    records were public records.”

    1. Nah. Let’s take the democratic talking points on handing over the GSA hosted emails and now claim a president and doj can now say on any incoming transition, especially of the opposite party. Since the president is top of the command of GSA and the DoJ, nothing wrong with this right? Sometimes you really have to wonder if Democrats think through the precedents they wish to set.

      1. I don’t think it’s a new or partisan innovation to think .gov e-mails are not private…

        1. Yeah, but you probably think perjury will still be a great concern to the “Nation of Laws!!!” folk, too.

        2. Even as a general claim, that’s a dumb one. The exceptions almost swallow the rule.

          1. I’m responding to Jesse’s argument that this is all a ridiculous Democratic conspiracy to cover up for Mueller’s lawbreaking.

            I’m not arguing all .gov e-mails are above any privacy, only that defending Mueller’s actions isn’t some talking point; it’s the default presumption that is as of yet unrebutted in this case.

            1. No, the Transition team has made a prima facie case against Mueller. It’s Mueller who needs to respond now, or people like Prof. Kerr responding for him, which woudl be better.

              1. They made an unsupported claim, that’s not prima facie anything.

            2. The only people who are dealing with default presumptions at this point are the ones who haven’t been paying attention.

              1. Suck burn on Jesse’s knee jerk generalization, but other than the linked analysis above, I’ve not seen much non-partisan discussion of the legal issues here at all.

    2. There are two issues with your comment:

      [1] If you read on, you’ll notice that the letter says: “Approximately two months later, TFA became aware of certain requests concerning PTT records. TFA promptly instructed the GSA, as the custodian of certain TFA records including PTT emails hosted on GSA servers, and others to preserve PTT records.”

      [2] According to the Trump attorney, the records were simply given away in bad faith. They weren’t declared “public records” for the purpose of FOIA. That’s an issue with GSA, not the Special Counsel. As it wasn’t criminal to give the records over, there is no legal barrier to Mueller using the records. Even reliably the pro-Trump Fox News legal “expert” Andrew Napolitano concedes this point.

      That being said, it was bad form for Special Counsel to not get a warrant. It would have been easy to get.

      1. Saying the emails were given away in “bad faith” might mitigate the issue if it wasn’t the government who gave away the records, and the Fourth Amendment is supposed to protect people against government action. As an optics thing, “bad faith” also looks like The Return Of The Deep State.

      2. If Mueller induced GSA to do something illegal, isn’t Mueller implicated too?

  8. And that they had an agreement with the head of the GSA their records were private, and that any request for them would be referred to the transition team?

    “After discussion and consideration of the issue, Mr. Beckler acknowledged unequivocally to TFA’s legal counsel, in the presence of Mr. Loewentritt, that TFA owned and controlled the PTT emails and data pursuant to the Presidential Transition Act, and that the GSA had no right to access or control the records but was simply serving as TFA’s records custodian. Mr. Beckler assured legal counsel for TFA, again in the presence of Mr. Loewentritt, that any requests for the production of PTT Letter to Congressional Committees records would therefore be routed to legal counsel for TFA. In the meantime, Mr. Beckler agreed to maintain all computer equipment in a secure, locked space within GSA facilities. There are multiple surviving witnesses to this conversation, including me. Additionally, we understand that the following day, June 16, 2017, Mr. Beckler personally informed the Special Counsel’s Office that PTT records are not owned or controlled by the GSA, and that the Special Counsel’s Office should communicate with TFA if it desired to obtain PTT records.”

    Ironic, as proud as Mueller reportedly is about having kept Ashcroft’s hospitalization from being exploited, that he apparently exploited Beckler’s hospitalization to circumvent this agreement.

    1. Thanks for this. In the first report of the TFA’s complain, I had seen reference to the Presidential Transition Act, which apparently clarifies the private vs. public argument. Since then I’ve heard little mention of it, and only the repeated comment that since the emails had a .gov address and were hosted on government equipment, they are “obviously” government property, and only thru special exceptions would they be protected against disclosure by the government. Conspirator Kerr seems to accept that argument, but I’m still waiting for informed comments based on the Presidential Transistion Act.

    2. This may be their claim. Beckler is dead and Loewentritt denies that this ever happened.

      1. And Trumpists are famous for their veracity.

        1. Your argument is so compelling. Maybe a few doody heads will hammer your point home.

          1. Jesse,

            You can snark about doody heads all you want. The fact is that nothing that comes out of Trumps’ mouth can be considered truthful, and this applies to his pals, lawyers, whatever.

            When evaluating claims it’s a good idea to consider the overall record That record is not good.

            1. and this applies to his pals, lawyers, whatever.

              Don’t be that stupid. It’s beneath you.

              1. Character arguments aside, the burden is on the Trump folks to back this up.

              2. Thanks for the compliment.

                Still, this is a question of veracity, isn’t it? And while I can appreciate that some of the participants here are basing their statements on things they were told, I do think the overall truthfulness of Trump and his court has some bearing on one’s judgments here.

                Maybe there are other legal issues, but relying on unsupported assertions by the Trump team does not seem wise to me.

        2. Even if the Trump transition team lied about what was told them; you still cannot overcome the Transition Act itself which is clear that the GSA is only providing government space, furniture, equipment, etc. including storage space for electronic mail. The Act is also clear that the GSA enters into contracts with the potential transition teams from presidential candidates (private orgs) and have no access/control over the documents which are not government documents. Both Trump and HRC had contracts should they be the winner just like Obama and Romney, and all candidates going back to the beginning of the Act itself.

          1. You’re a little confused about the legal reasoning here.

            Not even TFA’s letter to Congress makes the argument you’re making here. They cite a lot of legal materials and precedents that distinguish presidential transition materials from other information that must be maintained or released by the government pursuant to various statutory regimes and historical practices. But that’s just to the effect that those materials are subject to fewer requirements.

            It doesn’t say anything about who has “access or control” over them. Not even the MOUs are purported to touch on that question. The only explanation for why the TFA should be considered to have final authority on releasing materials within the GSA’s custody are various informal statements made by Beckler, which are now being disputed.

            1. Wrong again. One only has to look at how the same data has been handled from previous transitions including President Obama’s transition team as well as the contract between the GSA and transition teams from both leading candidates during the campaign. The GSA would not have to do a contract if it was government owned/controlled versus contracted usage to ensure a smooth transition.

              1. One only has to look at how the same data has been handled from previous transitions including President Obama’s transition team as well as the contract between the GSA and transition teams from both leading candidates during the campaign.

                Which show that presidential transition teams are not “government agencies” subject to document retention and disclosure regulations and evidence an intent to cooperate with transition teams to preserve the confidentiality of materials over which the GSA has access and control.

                That can all be conceded. But what this doesn’t amount to is demonstrating that TFA had a property interest in records to which the GSA also had access and control sufficient to support a Fourth Amendment privacy claim. It also doesn’t say anything about the GSA’s responsibilities to TFA in the event that an investigation requests information within their control. Nothing in the PTA or the MOUs appears to address that scenario – or else the TFA letter would have described it.

                I mean, look. You can keep parroting your poorly-understood version of TFA’s argument, but I’m just reciting Orin’s argument to you and reading the TFA’s argument.

              2. The GSA would not have to do a contract if it was government owned/controlled versus contracted usage to ensure a smooth transition.

                I’m sorry, what? The GSA evidently had access and control over the e-mails in question, which it exercised by providing the materials to Mueller. The fact that the GSA could promise to delete records relating to the PTT and could agree to maintain the confidentiality of those records does not mean that the GSA was under any obligation to consult with TFA in the event that Mueller sought those records, which is what TFA is arguing.

                Try looking up the actual MOUs in question. They’re available online. You may be surprised to see that they say nothing about who can disclose what, and to whom, on what conditions.

                1. Google has access and control over MY emails, but that doesn’t mean they’re supposed to just hand them over without a warrant, even the emails between me and my lawyer. Even though they have the technical capacity to do it.

                  The GSA was merely the transition team’s ISP, nothing more.

                  And, after this stunt, no transition will ever again trust them to even be that.

                  1. Okay, Brett, we all agree you’re a total moron – no need to prove it repeatedly.

                    Google has access and control over MY emails, but that doesn’t mean they’re supposed to just hand them over without a warrant, even the emails between me and my lawyer. Even though they have the technical capacity to do it.

                    I mean, you might review Google’s actual policies on this before you confidently assert something that just isn’t true. Their privacy policy is notably squishy, particularly when it comes to their cooperation with requests from law enforcement. What do you think you’ve agreed to, exactly?

                    The GSA was merely the transition team’s ISP, nothing more.

                    Nope. I mean, seriously, this is just so idiotic I’m not sure there’s much to say about it. The MOU provides for office space, equipment, furniture, personnel costs, payroll services, etc. They were far more than ISPs and what they handed over to Mueller were documents on the GSA’s devices, put there by TFA and retained at the TFA’s direction.

                    And, after this stunt, no transition will ever again trust them to even be that.

                    Oh noes! I guess then PTT’s will just have to find a different way to finance themselves, then!

  9. If he had a legal argument, he would have challenged Mueller’s action in court. Instead, he publicly whined to Congress, likely hoping that it would cause Mueller to be fired.

    1. Ding ding ding!

    2. Except the courts have made it impossible to challenge a 4A violation outside of a criminal proceeding, so until Mueller tries to use the emails in a criminal proceeding, they have no opportunity to challenge it in court.

      1. There are other grounds that to challenge the Special Counsel’s possession of the “private” documents. The transition team could sue like any media company does for pirating music. The Special Counsel, supposedly, has stolen documents. It should be an easy case to make if the documents, as the transition team claims, are “private” documents.

        That being said, this was all a stunt. Everything created using federal property (e.g. computers and cell phones) is subject to federal ownership and disclosure. Just ask Peter Strzok.

        1. Wrong Joe. The Transition Act is clear that transition teams are private orgs and enter into contracts with the GSA, IOW they are not government documents and the government does not control the documents.

    3. Thanks for reciting the talking points, Bob. Did you post that from Andy’s office?

      More likely, the Trump team knows that Mueller is on a snipe hunt, and rather than waste six or seven figures on court fights that they don’t need, they get a lot more practical benefit from revealing more of the swamp to the public.

      1. What’s the practical benefit?
        Do you really think attacking the guy investigating you looks to the public like a brave stand against corruption?

        1. Depends on the audience, doesn’t it?

          Personally, I wouldn’t call it brave, but bringing the scumbaggery of Mueller and his team to light certainly does have practical benefits, especially if Mueller tries to nail him on something procedural.

        2. Depends on the audience, doesn’t it?

          Personally, I wouldn’t call it brave, but bringing the scumbaggery of Mueller and his team to light certainly does have practical benefits, especially if Mueller tries to nail him on something procedural.

          1. The practical benefit should be audience agnostic.

            Certainly Trump’s folks offering this as an avenue to attack Mueller more makes those who already want to dislike Mueller happy, but I’m not seeing it move anyone else.
            Should Mueller be dumb enough to go after Trump with only something small and technical, this will be lost in the general substance.

            I’ve got a narrative I’m working, but to me this seems like the usual Trump play of mostly validating his base. One could say this is 4D chess to keep GOP skeptics cowed by that enthusiasm, but it seems more like simple attaboy seeking behavior to me.

          2. “Something procedural.” God, you people love this silly distinction. Clinton was damn neared removed from office for “something procedural.” Hillary was raked over the coals for “something procedural.” The only reason Sessions, Kushner, and Donny Jr. haven’t themselves found themselves in trouble for “something procedural” is that Congress is running interference for them. The only reason Kellyanne isn’t in trouble for “something procedural” is that the only we she gets in trouble is if the President cares. And on and on.

            And talk about scumbaggery: The entire argument that the transition team has any Fourth Amendment rights in the e-mail correspondence is based entirely on a putative promise made by a Trump-installed ally at the GSA, who just-so-happens to be dead and so no longer needs to worry about perjuring himself. If it were Hillary, you’d be intimating dark things about how his cancer treatment must have been sabotaged.

            1. The Clinton thing was partisan silliness, no doubt. That dumbness does not excuse Mueller if he decides to go after Trump for something as lame as a perjury trap.

              Jr, and Kushner look quite a bit like they have problems beyond the procedural.
              ==============
              Agreed that the factual premise is so weak it wraps around to making the indignation increase my (largely unfounded) suspicions they’re acting like something bad is coming down the pipe for the T-man hisself.

              1. Hey, we impeached a president over a perjury trap. Trump deserves no better.

                1. Eye for an eye leaves everyone blind.

                  Especially in this case, where there’s probably no need to gin something up.

                  1. Cute slogan, but no. “An eye for an eye”, Hammurabi’s code, was a *limit* on vengeance, requiring proportionality.

            2. Clinton was damn neared removed from office for “something procedural.” Hillary was raked over the coals for “something procedural.”

              This is, of course, nonsense. Clinton deliberately set up a structure to evade FOIA. Maybe, if it had been perfectly executed, it might even have been legal. But it wasn’t perfectly executed – government secrets got sent by insecure means. Which is illegal. Moreover, ab initio, those who set up the system, including Clinton, knew that it would not be possible to operate the scam perfectly. People would be bound to screw up, because people do.

              So she tried the FOIA equivalent of a clever tax avoidance scheme, which turns into criminal evasion if you don’t get it exactly right. And she didn’t get it exactly right. Fortunately for her, when the scheme unexpectedly came to light, she was investigated and cleared by patsies. They didn’t even mind about her destroying evidence.

              Unfortunately for her, enough leaked out that voters worked out that she was guilty as hell, and this fitted her image as someone who has been guilty as hell since her husband was first running for Governor. And so she contrived to lose to the most ridiculous candidate ever put up by a major party. Not actual justice, but at least poetic justice.

              1. You’ve used a lot of high-octane language to describe the “crime” of saving one’s e-mails to the wrong computer.

                1. Which, for someone with a security clearance really can be a crime.

                  Not here only crime, of course. She had a legal obligation, if using private email for government business, to have it forwarded to the government system for archiving. And to turn over her copies of such emails on leaving government service. She did neither.

                  She did, however, have emails under a preservation order wiped. Also a crime.

                  No, they could have easily nailed her and her staff on numerous crimes… if they had wanted to.

                  1. Lying to the FBI’s also a crime, genius. But the question is about “real crimes” and “process crimes.” I realize we’re talking about laws and regulations that exist to keep government records within government control, when it comes to Hillary (and I don’t care to engage with your sloppy mishandling of the actual facts involved). My only point is that it’s hilarious that you idiots expect us to draw a bright line between “lying to the FBI about your conversations with the Russian government intended to undermine the president’s foreign policy at the time” and “failing to observe all applicable government regulations relating to the retention of State Department e-mail traffic,” brushing one off as a “process crime” but the other as an indication of deep villainy.

                    1. Yes, and her staff also clearly committed that crime, too.

                      She didn’t fail to observe all applicable laws. She made affirmative efforts to violate them. We’re not talking inadvertence here.

      2. So what you’re saying is that the Trump team doesn’t actually care about getting back those records or protecting their confidentiality; they just care about undermining the investigation.

        1. So what you’re saying is that you can’t read; you just care about taking stupid partisan shots.

          If those records leak, like so much else has leaked from Mueller’s team, it will mostly make the investigation look even more rotten. If they don’t leak, but the Trump team is confident that nothing will stick, there is very little benefit to forcing Mueller’s team to destroy their copies, but there is benefit to showing the public how strongly Washington bigwigs want special rules for themselves.

          1. Stupid partisan shots? You’re the one talking about the deep-state “swamp” that wants “special rules for themselves.”

            No, I’m just thinking about this like a lawyer would. Your argument, in essence, is that Trump’s lawyers are incompetent. So, rather than zealously advocate for the interests of their client, they are engaged in political grandstanding.

            1. You already made it clear that you don’t understand my argument; you can stop digging that hole. The Trump team doesn’t waive legal action by making public statements that would be entirely consistent with such action. That you apparently think they do shows how bad you are at thinking like a lawyer.

              1. You’re arguing that the Trump team perceives greater benefit in alleging, in the court of public opinion, that their rights to privacy and confidentiality have been infringed by the Mueller team, than they do in actually defending those rights to privacy and confidentiality, which they would do by pursuing claims in court. When I’ve pointed out that they, uh, maybe could do something to actually defend those rights besides complain loudly, you responded that there wasn’t any point in their doing so, even though their quite clearly is. Now you’re maintaining they could pursue a dual-track course of action (which I’ve never denied), (still) without explaining why they’re not actually doing that.

                So no, I understand your argument perfectly. I’m just recasting it to make you look more clearly like the idiot you’re so committed to being.

                1. So exactly how do you personally get a court to unring a bell? Is there a name for that kind of petition or court order?

                  1. It’s called “injunctive relief.” You get the other party to return your records and destroy their copies.

                    Look, imagine it’s you. You’re being investigated for participating in a criminal conspiracy of some sort, and the government has obtained copies of all of the e-mails you’ve ever sent from all of your free e-mail accounts. You think that they’ve done this illegally.

                    Do you just shrug your shoulders, telling yourself there’s no way to “unring a bell”? Do you complain loudly to the public? Or do you tell your lawyers to do everything they can to force the government to delete their copies of your e-mails?

  10. The quality of the comments has risen drastically since the move away from the Washington Post.

    1. Agree although RAK is still adding effluent.

      1. You expected a safe space for wingnuts, backwardness, and bigotry at reason.com?

        Perhaps you developed a warped view of the world by attending a conservative-controlled campus.

        1. Naw, I’ve been on Reason for years, similar to the amount of time I’ve followed the VC.

          I developed my world view from opposing various forms of Marxism (Communism, Socialism, Progressivism, even Liberation Theology) around the world for decades. I’ve attended several campuses from Liberal to Conservative but most comes from the SpecOps world.

    2. Totally agree

    3. Yet the quality of the comment system is a massive leap backwards. I wrote a CMS system in the early 2000s that had a better comment system than this one. :-/

      1. There’s no edit feature, and nesting is a mess. I miss Disqus.

    4. I’m new to Reason, but not to the VC. I’d say that the comments have only gotten worse, since they were independently-hosted. The move to WaPo put an end to thoughtful commentary, for the most part, and the move to Reason seems to have invited the participation of a surprising number of conservative statists. I thought this was a libertarian site?

  11. While I think the good faith exemption may well cover these records even if its later held that Mueller should have gotten a warrant, I think Mueller and his team were reckless and may have jeopardized their entire investigation by not using a taint team to screen the records first.

    For instance say Flynn had consulted one of the transition counsels on what he should disclose to the FBI about his meetings with the Russian ambassador, then that document would be privileged.

    1. Perhaps Mueller didn’t use a taint team, because he really did want access to the documents they would have screened from him?

      1. Perhaps unsupported suppositions of bad faith betray one’s own allegiances more than anyone else’s.

    2. Mueller’s team is making it hard to give them the benefit of the doubt when it comes to good faith.

      1. Would you be similarly concerned if the texts were rabidly pro-Trump? Without assuming your position, I am asking because I have seen an awful lot of people essentially suggest (whether they realize it or not) that the way to fix the so-called “deep state” problem is to basically just replace all of the supposed Hillary partisans with…Trump partisans.

  12. It seems to me that a pertinent question is if the Obama Transition Team’s records were deleted rather than archived, as they would have to be if they were government records. I presume they were, which would also deny any GSA ownership of the Trump records.

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