Posted on 12/18/2017 7:11:56 PM PST by Gideon7
According to published reports, Special Counsel Robert Mueller engaged in a mass seizure of all emails of the Trump transition team without even a warrant or a subpoena. In my opinion, a mass seizure – as is alleged here against Mueller – cannot conform to either Fourth Amendment standards or attorney-client privilege protections. The questions boils down to this: was there a reason for the individuals communicating by email, including with their lawyers, to believe their communications were private or privileged? Or, did the individuals forever waive or “implicitly consent” to any future search or seizure of their emails?
The Supreme Court in 2010 “counsels caution” before too soon defining “the existence, and extent, of privacy expectations enjoyed by employees when using employer-provided communication devices” until popular use of the technology used was better developed socially. (City of Ontario, Cal. V. Quon, 560 U.S. 746 (2010). In other words, do most people expect privacy in that use of technology to communicate, or do they assume it is equivalent to talking in an open office where anyone from the public can walk by? The court made clear a government search was not reasonable if not “justified at its inception” or “excessively intrusive” or “not reasonably related to the objectives of the search.”
Put simply, the use of a government server, like the use of an employer’s server, does not control the privilege or privacy analysis. Instead, courts typically employ a four-factor test, that tends to be very fact-intensive, email-specific, and individual-specific. (In re Reserve Fund Securities and Derivative Litigation, 275 F.R.D. 154 (S.D.N.Y. 2011). First, whether the government or company maintains a policy banning personal use. Second, whether the government or employer monitors the use of the email. Third, whether third parties have a right of access to the emails beyond technical audits and maintenance. Fourth, whether the government or employer notifies the individual of the limits on privacy in the emails, whether the individual was aware of those policies, the use of those policies, and the monitoring of those policies. It boils down to whether a person in the individual’s shoes would have had no reasonable expectation of privacy in their email communications.
A fifth factor is relevant in the Fourth Amendment context: whether the government gave an individual notice and the individual had knowledge of the right to refuse to give consent to the future search of their emails. Courts held individuals who agreed, as a condition of employment to “any future searches” did not waive their right against such searches because the waiver failed to give them the “right to refuse to give consent to the future search.” For the government to claim implied consent or waiver, “requires clear notice that one’s conduct may result in a search being conducted of areas which the person has been warned are subject to search,” and such notice must ensure an individual “had knowledge of the right to refuse to give consent.” (Pure Power Boot Camp v. Warrior Fitness Boot Camp, 587 F.Supp.2d 548 (S.D.N.Y. 2008). Hence, a broad waiver was found inadequate to permit a search. (Anobile v. Pellegrino, 303 F.3d 107, 124-25 (2d. Cir. 2002). The Supreme Court made it clear the question usually “must be addressed on a case-by-case basis” and rarely subject to blanket waivers of Fourth Amendment liberties. (City of Ontario, Cal. V. Quon, 560 U.S. 746 (2010).) As the court reiterated, “individuals do not lose Fourth Amendment rights” merely because they use government-provided servers, offices, or equipment. (O’Connor v. Ortega, 480 U.S. 709 (1987).
Courts held that an employee has a reasonably expectation of privacy in the contents of his computer even when given specific notice the computers could not be used for personal purposes and the individual had authorized disclosure for technical and maintenance audits. Leventhal v. Knapek, 266 F.3d 64, 74 (2d. Cir. 2001). Attorney-client privilege is broader. As courts have held, emails between government employees remained privileged even though sent over government email servers. (In re County of Erie, 473 F.3d 413 (2d Cir. 2007). Courts held an ex-employee could assert attorney-client privilege against use of such emails by his company even though emails were located on employer’s computer and employer gave employee notice any documents stored on computer not protected. (Curto v. Medical World Communications (E.D. N.Y. 2006).
The Mueller search runs afoul of many of these established court precedents and Fourth Amendment privacy and privilege principles. First, it appears Mueller searched and seized every email, without any kind of categorical or keyword search. This is exactly the kind of search the Supreme Court made clear was not allowed under the Fourth Amendment. This means Mueller can only prevail if he didn’t seize a single email of a single individual that the individual could have any expectation of either personal privacy or attorney client privilege in.
The primary excuses proffered so far for the broad seizure is the faulty assumption the use of a government server waived all privacy and all privilege of every email ever made over that server. As identified above, that has never been the law. The security and efficacy of government-owned servers for transition employees are not intended as a trap for the unwary to forever forfeit their privacy and privilege rights in their communications. Indeed, doing so would undermine use of such communications, and invite Hillary Clinton type bathroom closet email servers for everybody.
Mueller’s problem here is these were not even government employee emails; they were the emails of private individuals stored temporarily on a government server, and publicly declared to be “private materials” as a matter of custom, practice and the public policy of the National Archives. As Professor Jonathan Turley identifies, the National Archives recognize transition email records “are not federal or presidential records, but considered private materials.”
The only “notice” evidence otherwise given publicly is that an agreement between the GSA and the transition team identified the possibility of technical and maintenance audits, with some claiming this as a “waiver” of all privacy and privilege rights in the emails forever. Here again, the law does not support such a claim; even cases with much more specific notices and much less invasive searches, found privacy and privilege objections persisted. So far, a striking lack of arguments and evidence has been mounted for claiming every single email lacked any privacy or privilege.
It appears to me, Mueller deliberately skipped the court, the grand jury, and the government-imposed limits on investigative inquiries into worker conduct under Supreme Court precedent; he might have done so because he wanted a tactical edge, and was walling to ignore the Fourth Amendment restrictions on him to do so. Mueller may come to regret his choice.
This is the “Insurance Policy” Coup d’Etat.
Why would Mueller and his minions care about legalities?
Didn’t read volume of stuff here when it means nothing. Nothing Mueller does can or will be stopped. Only President Trump can stop him and the President will not. So much for law and order.
are the alleged violations actionable?
which if any court has jurisdiction?
who if anyone has standing?
what is/are the remedy/remedies?
are the alleged violations actionable?
which if any court has jurisdiction?
who if anyone has standing?
what is/are the remedy/remedies?
does the separation of powers apply in any manner?
Why did muellers response to these questions reference a criminal investigation?
Muh Russia is a counter intelligence op.
So, was it weasel words used to attempt to turn away criticism or is there an unknown criminal investigation?
Mueller will self destruct, watch.
how about filing a writ of mandamus to cease and desist the investigation and/or its funding, by members of congress?
how about filing a writ of mandamus to cease and desist the investigation and/or its funding, by members of congress?
Would this not be akin Google handing EVERY e-mail EVER sent over gmail to the federal government? “You used Google, so you gave us Google all of your privacy rights?”
still acting above the law.
I bet he’s trying to find out how much Trump knee about their illegal activities more than anything.
Muelller Omar was in retirement, and was brought back, when his career was over, for one final kamikaze mission for the deep state.
Wouldn’t the material Mueller uncovers be subject to judicial review, to the laws of governing the collection of evidence, seizure of personal papers and correspondence, and so forth?
Or is Mueller going to be serve as judge, as well as prosecutor, and chief of detectives?
Jon Turley wrote this this AM, is Mueller trying to get a new law passed since the ownership is so vague?
Trump gains nothing by firing Mueller except the MSM screaming from the roof tops that Mueller was getting close to finding he colluded with Russia (which incidentally is not a crime in US).
Trump knows he had no contacts with Russian operatives, and therefore no need to fire Mueller. At the end of day, the POTUS can pardon Flynn, Manafort, and others found guilty of crimes TOTALLY UNRELATED TO RUSSIA COLLUSION by the Trump campaign.
Yes, but it conforms to Democrat and MSM standards which means he'll probably get away with it.
The “point of view” of the so-called professional government executives (one of whom in this case was the causative agent for the release of the emails— and quite probably a partisan democrat permanent bureaucrat type) is in this article in Government Executive.
The Trump appointee Director of the GSA died in September of cancer. He was in agreement with Trump that these records were not subject to public release or subpoenaed. And it’s clear that Mueller’s liberal peeps pounced on their compadre and had help getting the previously unavailable emails. The 2nd in command took a 180 degree view of their “private” nature. This is some dirty crap, and smells like Andrew Weissman type crapola.
It’s worth a read for the “legal” opinions expressed by trite little twits who state that “if you use a government server email that ends in ptt.gov, you have no expectation of privacy”!!!! So THAT’s why hitlery was OK to have a non-accountable criminal server, and other devices memories which were allowed to be wiped and destroyed, by the same FBI who exonerated her, thanks to the work of Strozk et. al. This needs to be blasted from the highest mountains. The National Archives does not hold that transition emails are federal records. Maybe Trump should have set up a private server for the transition— but I’d be willing to bet the corrupt FBI would have flayed him alive for erasing that content.
Might also say that if any of these emails were used to “put the final nail on Flynn’s coffin” then Flynn’s plea could be easily said to be “forced” and fake. Flynn did nothing wrong, except lying to Pence (or so it was said— that still makes zero sense). A basis for a Trump pardon... not for something that was committed but which was driven by economic destruction to plead out for something ultimately Flynn was doing as instructed.
Mueller is way out of his depths and his focus from Rosenstein’s directive. This could provide the basis to wrap up the investigation and shut it down, imho.
God please let CINC have a rabbit to pull out of his hat on this one. This renders his ‘sad’ statement about this in a new light....
Am of the opinion that Mueller’s carrying of a sample of uranium to Russia, under the direction of obamaumao— is key to the entire unraveling. The dude is working in concert with the rest of the rotten players he chose to save his own arse. Desperation will yield stupid results outside the scope. The goal also is to perpetuate the now idiotic “russian” myth, with any scraps that can be publicly released.
But.. not the massive security breach that was hitlery’s secret servers... and the adjoining Arwan IT workers for the DNC (and Debbie Wasserman Shulz, and the rest of the criminal RIOC DNC cabal inside the Swamp).
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