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.
Fruit of the poisoned tree. Illegally obtained evidence invalidates all the evidence. Case over.
If all 13 of the PTT folks in question OK-clicked-away some innocuous-looking message infobox about privacy that was presented far into the transition, not when they first began using the devices, that would explain the smugness of Bob’s spokesman about ‘consent’.
Also need to file charges with the Bar to have his law license revoked.
Except this is political as impeachment doesn’t follow law, but politics.
There’s more to this story, including exactly how the emails were obtained, and by who.
I think that everyone is focusing on the wrong reason for the grabbing of these emails. This was not done for criminal investigation and Meuler doesn’t care if the courts rule that anything that results of this is the fruit of the poisonous tree. This was done for impeachment info which the Congress, Dems), can use for articles of Impeachment. They are looking for anything that can be the basis for an impeachment charge. Rules of evidence do not matter.
Folks I respect share your opinion dynoman!
Laws?? Rules?? Regulations?? Come oonnnnnnn! These are democRATS. Laws and morals are for the lower people.
obongo, the Arkansas Grifters and the Deep State are throwing caution to the wind.
If the GOP can find it's gonads a lot of traitors will go down and America wins
There numerous things wrong with what Mueller is doing and how he even ended up there, in the first place. But, what is truly mind boggling, unnerving and should absolutely scare the sh*t out of everyone, is that he, his lawyers, investigators and FBI officials are so blinded and corrupt that it seems like there’s nothing they won’t do to try and get the President. Even if it means committing crimes.
Of course, Congress doesn’t have the balls to do anything about it, as most of them want the President gone, too.
Anyone who had a reasonable expectation of privacy has a cause of action, e.g. any member of Trump's transition team. Any conspiracy to violate the constitutional or civil rights of the individuals is a violation of the Civil Rights act and action can be brought against the individuals who did this.
which if any court has jurisdiction?
A federal court since Mueller is acting under color of federal law.
who if anyone has standing?
Anyone who has been damaged by Mueller's actions.
what is/are the remedy/remedies?
money
does the separation of powers apply in any manner?
No because the Trump transition is by law a private nonprofit entity, not a constitutional governmental organization.
That is an interesting question, when in an impeachment against the President, the Chief Justice of the Supreme Court is the presiding judge and federal procedure and federal rules of evidence are approved by acts of Congress. The Federal Rules of Evidence are certainly binding on the presiding judge.
For those that do not know what a MX record is, it "specifies a mail server responsible for accepting email messages on behalf of a recipient's domain." I does not mean it's the actual mail server that holds the or the user connects to.
You are correct as it pertains to the trial in the Senate, but the Dems don’t care about that. They want him impeached by the House which is not limited by future rulings by the Chief Justice during the trial. They just need to have enough “dirt” so that they can get the Rinos to agree to impeach. They likely want to do this just prior to the November elections in hopes to get enough Conservatives to vote for the Dems or stay home, (Judge Moore is a prime example).
******There’s more to this story, including exactly how the emails were obtained, and by who.****
http://www.freerepublic.com/focus/news/3614877/posts?page=36#36
Writes: “First we F Flynn, then we F Trump”
The above quote attributed to McCabe by a witness in a closed meeting makes sense now. McCabe was setting a trap for Trump’s people. The evidence regarding handoff of data from the GSA to FBI likely shows the transfer of custody of the GSA data to McCabe. This would explain why McCabe has an Ohr problem. It would explain why McCabe is toast.
Reports that McCabe entraps people, innocent people, are not new. More than a year ago George Webb started his epic investigation based on McCabe entrapment from years before when McCabe was with JTTF and was accumulating scalps via entrapment in order to seek promotion. McCabe is a dirty cop. In gutter street language, McCabe is a g*ddamn piece of sh*t.
Haven’t seen any corroboration of the year extension YET, but that don’t mean it ain’t coming, and it explains CINC’s exasperated ‘sad, my people are very, very angry’ statement.
So, Mueller can continue jackhammering CINC, albeit with half the DOJ and FBI having been fired or convicted while he’s doing it.
I saw that too and I think it’s bogus. Likely planted to encourage the crowd that wants Mueller fired.
Half his team...and maybe Mueller himself... will be on trial in that time frame.
This morning I heard Napolitano (I think) say they’re prepared to go THROUGH 2018! I think it was on Varney.
ping
It was weird last night watching the msm defend mueller and taking of these emails....meanwhile killary emails are down the rabbit hole.
If Mueller has behaved illegally or unethically, it's Rosenstien’s duty to relieve him and appoint someone else.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.