The strongest indication of President Trump’s precarious legal situation is his legal team’s propensity to make political, not to mention hysterical, accusations in lieu of legal arguments. One supposes that if Trump’s lawyers had meritorious points, they would make them in a proper legal forum, as Rep. Trey Gowdy (R-S.C.) suggested with regard to the lawyers’ temper tantrum over thousands of transition team emails acquired by special counsel Robert S. Mueller III from the General Services Administration.
Trump’s transition legal team wrote a letter to two congressional committees, including Gowdy’s, on Saturday alleging that Mueller’s team had inappropriately obtained thousands of transition emails that were housed on government servers. The transition team said it hoped the findings would be “useful in discharging your oversight responsibilities, ensuring the integrity of the special counsel’s investigation.” It also suggested new laws protecting future presidential transitions from unwanted disclosure of emails.
But Gowdy’s spokeswoman said the issues raised by the transition were “specific legal issues” regarding claims of privileged information and that those matters belonged in court, not Congress.
If, of course, Trump’s legal team went to court, it would need a viable legal claim. Legal experts are flummoxed as to what the basis might be for challenging the acquisition of documents relevant to the Russia inquiry. (Fear of gross embarrassment isn’t a legitimate one.) For one thing, Trump would have to attack his own appointees at the GSA for turning over the documents, which cannot by definition be covered by presidential executive privilege because Trump wasn’t yet president. The Post quotes former prosecutor Randall Eliason as saying that the transition emails are “not your personal email. If it ends in .gov, you don’t have any expectation of privacy.” Likewise, Ben Wittes of Lawfare blog tells me, “When you use government devices you do so with the explicit understanding that you have no expectation of privacy. Moreover, if there is a complaint here, it is a complaint about GSA for overbroad production, not against Mueller for seeking materials that are obviously germane to his investigation.”
Former Justice Department spokesman Matthew Miller tells me, “This was a transparent attempt to continue stoking conspiracy theories about Mueller among Republicans in Congress, the right-wing media and the Republican grass-roots. The best evidence that the Trump team knows their claims are bogus is that they sent this letter to Congress, rather than filed a motion in court, where any claims would be adjudicated based on the facts and the law, not on hysterical nonsense.” He continues, “The letter claimed transition emails were private, but raised privileges that are only available inside the government. It claimed releasing them was against the law, but asked Congress to change the law to forbid it in the future. It implied that what Mueller and the GSA did was inappropriate, but sought relief from Congress, rather than the courts.” He jokes, “Other than that, it was brilliant!”
Other experts agree. “The GSA has said that transition officials were specifically told that messages on their devices ‘would not be held back [from] law enforcement’ and that ‘no expectation of privacy can be assumed,’ ” Jordan Libowitz from Citizens for Responsibility and Ethics in Washington said via email to Right Turn. “If they thought they had a legal case, they would have made it in court. Even Trey Gowdy has said that the courts are the appropriate venue. But they didn’t file anything with the courts, because this is just a political move meant to attack public opinion of the Mueller investigation.”
On some level, the shenanigans by Trump’s lawyers make sense. The president may have no legal or factual arguments to combat Mueller’s methodical, inexorable pursuit of evidence. That leaves them the option of distracting and discrediting the investigation in hopes that the cowardly GOP majorities in Congress will be unwilling to move against Trump should Mueller come up with evidence of impeachable conduct. Taking a step back, however, we see that the strategy is doomed to fail and looks more like the lawyers’ effort to mollify their irrational client. Their complaints have not stopped indictments and plea bargains from proceeding and won’t protect Jared Kushner, Donald Trump Jr. or Attorney General Jeff Sessions if Mueller finds evidence of wrongdoing. Moreover, the facts that Mueller’s investigation finds will speak for themselves — as do the already public actions of Trump, both with regard to possible obstruction of justice (e.g. firing former FBI director James B. Comey) and collusion (e.g. calling publicly for Russia to hack Hillary Clinton’s emails).
Trump’s lawyers can flail around all they like. Trump’s poll numbers continue to slide, Mueller is finding more cooperating witnesses, and for now, members of both parties openly warn Trump not to fire Mueller. (Trump on Sunday denied he was thinking of doing so — a position, of course, that can change at any minute.) When all the facts come out, supported by multiple witnesses and documentary evidence, Trump’s antics to date won’t matter one bit.
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