The first indication that Mueller possessed more information than what he’d been given by the transition team, allegedly, came when witnesses were questioned, by the Special Counsel, about topics, presumably, in emails never turned over to him. Muller’s office said, in response, essentially, that any materials were obtained by consent, or as part of criminal prosecution practices. Because consent can be express or implied, there’s room for differing opinions about this topic.
As a prosecutor, Mueller has wide latitude to investigate and charge and that may be all that he needs at this stage of the proceedings. There are, nonetheless, issues that will require future judicial determinations if they continue to be asserted by the Trump transition, including whether there a privacy right attached to its use of the GSA server.
It’s might be too early for some of the team’s objections to be raised, particularly those more frequently addressed at trial, or in pre-trial hearings, once charges are levied. The Trump team, however, if it feels oppressed, has the option to go to court at any time, to seek a protective order from any of Mueller’s acts. So far, it hasn’t exercised this right which may be deemed to be a waiver, of sorts, for failure to object to Mueller’s acts at the earliest opportunity.
Trump’s transition team was composed of: (1) Chair, Mike Pence; (2) Michael Flynn; (3) Ben Carson; (4) Jeff Sessions; (5) Newt Gingrich; (6) Rudy Giuliani; (7) Chris Christie; and, (8) Rick Dearborn, Sessions’ Chief of Staff, named Director. There were 16 members on the Team’s Executive Committee, including: Don Jr.; Jared & Ivanka; Rep. Devin Nunes; Steve Mnuchin; Steve Bannon; Robert Mercer; and, for laughs, Anthony “The Mooch” Scaramucci.
Where the team may face the most jeopardy is in the contents of materials that the team didn’t turn over to Mueller. By comparing the incomplete set with his complete set, Mueller might be able to form an opinion about whether any obstruction of justice took place. Failure to disclose relevant, material information, or false assertions of privilege in order to hide possibly incriminating information, could be deemed obstruction. The federal statutes are very broad in defining the offense.
A transition team lawyer, also, claimed that there was attorney-client privileged material present in certain of the withheld emails. The privilege, generally, attaches only to communications between attorneys and their clients, not to third parties who may have been in the chain of communication, or third parties who may have seen, even negligently, communications without specific authorization.
Once privileged communications are disseminated to outsiders the attorney-client privilege can be deemed waived. This may happen, arguably, when either attorneys, or their clients, entrust records to insecure hands. Here, it’d include the GSA, which can’t claim the attorney-client privilege, even on behalf of a president-elect. The contents of the GSA are available via a Freedom of Information requests entrusting materials to them could be deemed a public dissemination.
Commingling of information is, also, a potential problem for Trump’s team which shared gossip, and the like, along with purportedly privileged materials. This provides Mueller with another potential ground for asserting a waiver of privilege, if it even attached in the first place. A better practice is to hold protected information separate from what’s non-privileged rather than risk losing the privilege.
An irony, in all this, is that Trump should’ve used a secure private server for his transition’s private communications, while Hillary Clinton should’ve used a secure government server while conducting government business. The courts will be very busy, very soon, and the public will get a free course in evidence. It’ll be important, interesting and, perhaps, outcome determinative.