Gregg Jarrett: Mueller’s allegedly lawless acts have corrupted his probe and demand his removal
Special Counsel Robert Mueller is accused of acting in complete disregard for the law and must be removed. And so, too, must his entire team.
There is devastating new evidence to suggest that Mueller and his staff of lawyers improperly, if not illegally, obtained tens of thousands of private documents belonging to President-elect Trump’s Presidential Transition Team (PTT). The material includes emails, laptops and cell phones used by 13 PTT members.
Critically, a “significant volume of privileged material” was taken by Mueller, according to the Trump transition lawyer, and then used by the special counsel team in its investigation. Mueller’s staff apparently admits this egregious violation, which the law strictly forbids.
Under the law, the only remedy is Mueller’s dismissal from the case.
The Records Are Private
The Presidential Transition Act states that all records of transition operations are private and confidential.
On November 16, 2016, roughly ten days after Trump was elected president, the Chief Records Officer of the U.S. Government sent a letter to all federal agencies reminding them that “the materials that PTT members create or receive are not Federal or Presidential records, but are considered private materials.”
Yet Mueller seems to have ignored the law. Without a warrant or subpoena, his team of lawyers brazenly demanded these private records from the General Services Administration (GSA) which held custody of the materials. The GSA does this as a service to all incoming presidents out of courtesy, but it neither owns the documents nor is authorized to release them to anyone under any circumstances because they are deemed entirely private.
If true, Mueller’s conduct is not only unethical and improper, it constitutes lawlessness. On this basis, he must be removed and replaced.
Counsel for the Trump Transition Team has sent a letter to Congress alleging the Fourth Amendment was violated in “failing to obtain a warrant for the search or seizure of private property in which the owner has a reasonable expectation of privacy (Coolidge v. New Hampshire, 403 U.S. 443, 489).”
Mueller might contest the claim of an unlawful seizure because the GSA willingly handed over the documents, but this disregards the fact that the GSA broke the law and Mueller surely knew it when he pressured the agency to do so.
The most serious charge against Mueller is that he obtained, reviewed and used material that is privileged.
For months, Mueller allegedly failed to disclose to the transition team that he acquired these privileged documents. Under the law, he and his lawyers are not entitled to possess or read any of them. Even worse, the transition team says it warned the special counsel six months ago that it had no right to access the records without gaining permission from the PTT.
Courts have clearly stated what prosecutors are supposed to do under these circumstances: “An attorney who receives privileged documents has an ethical duty to cease review of the documents, notify the privilege holder, and return the documents.” (Arnold, 2004 U.S. Dist. Lexis 19381, at 30.)
Did Mueller do this? Apparently not. He never notified PTT when his staff of lawyers encountered the privileged documents and he compounded his violation of the law by possessing and accessing them for months.
Only the owner of such materials can waive the privileged that protects them. Since the GSA does not, under the law, own the records, only the transition team can make such a waiver. It did not.