"Every hear the story of the frog who wanted to be king, and then became one?"
Neil Diamond
It never ends well.
Neil Diamond
It never ends well.
Mueller's investigation into Trump takes action
- Thread starter kmoney
- Start date
https://lawfareblog.com/did-special-counsels-access-transitions-emails-violate-fourth-amendment
Did the Special Counsel's Access to the Transition's Emails Violate the Fourth Amendment? There has been a lot of buzz the past couple of days about claims by Kory Langhofer, counsel for Trump for America, that Robert Mueller's investigators wrongfully obtained copies of the presidential transition team's emails. One of the claims in Langhofer's letter is that the access violated the Fourth Amendment. I haven't seen a substantial legal analysis of this issue yet, so I thought I would try one. My bottom line: Langhofer's claim that access to the emails violated the Fourth Amendment is likely wrong. At the same time, it's not necessarily frivolous. And depending on how the facts turn out, it may be plausible. ... Now let's get into the analysis. If you assume that the Trump transition did not receive any oral promises of confidentiality, then the Fourth Amendment very likely was not violated by the Mueller team's access to the emails. How you get there depends on whether you consider this a public-sector privacy case or a private-sector privacy case. If it's a public-sector privacy case, then the presence of an unambigous policy that users have no privacy rights is determinative. Under the special rules of O'Connor v. Ortega, a "legitimate regulation" such as a workplace policy purporting to eliminate privacy rights has the legal effect of doing so. See United States v. Thorn, 375 F.3d 679, 683-84 (8th Cir. 2004). If you see this as a private-sector privacy case, you likely get to the same result—but arrive there in a slightly different way. Under that assumption, the unambiguous policy likely gives the provider (here, the GSA) common authority to give third-party consent to disclose the materials to others. See United States v. Ziegler, 474 F.3d 1184 (9th Cir. 2007). The policy wouldn't eliminate Fourth Amendment rights altogether, but it would probably give the third-party provider the right to control who gets the emails. And because it seems the GSA voluntarily handed over the emails, that would seem to suggest that the third-party consent was proper and the emails were properly disclosed. So far, so good. In all likelihood, that's the answer. But there's a potential complication. If the Trump transition was told that its materials would not be disclosed, that might lead to a different result. The case that comes to mind is the Ninth Circuit's ruling in Quon v. Arch Wireless, 529 F.3d 892 (9th Cir. 2008), which was reversed on other grounds—without deciding the relevant issue—in City of Ontario v. Quon, 560 U.S. 746 (2010). In Quon, there was a formal workplace policy that on its face seemed to say that city employees had no privacy rights in their city-provided text pagers. On the other hand, there was an informal understanding, based on what the bosses actually told their employees, that the bosses wouldn't look at the contents of the messages except in particular circumstances. In an opinion by Judge Kim McLane Wardlaw, the Ninth Circuit held that the "operational reality" based on the informal understanding trumped the formal policy. Mr. Quon therefore had Fourth Amendment rights in the contents of his government-provided pager even though there was a policy indicating he didn't. Id. at 907. The Supreme Court then granted cert and reversed the Ninth Circuit on the grounds that even if Quon had Fourth Amendment rights—a point the Supreme Court assumed without deciding it—accessing the contents of the messages was reasonable under the circumstances. If it's true that the Trump transition team was told its e-mails would not be accessed or disclosed, Judge Wardlaw's opinion in Quon gives the transition members a possible argument that the Fourth Amendment was violated despite the workplace policies. I should stress that Wardlaw's opinion is a thin reed on which to rest. The Supreme Court reversed the Ninth Circuit in Quon and didn't take a position on the issue. Judge Wardlaw's opinion in Quon is itself an outlier, and showing Fourth Amendment rights in the emails is just a threshold question. But it's at least an argument, albeit one with the amusing irony of the Trump transition possibly having to rely on a Wardlaw opinion joined by Judge Harry Pregerson to get some legal footing. (Presumably there's a private-sector analogy to the same position, that the claimed promise of confidentiality meant that the provider lacked third-party consent rights. But there isn't a lot of case law on how that argument would apply here.) Let's say you buy the argument that, under the Ninth Circuit's analysis in Quon, the Trump transition members had some Fourth Amendment rights in their emails despite the policy. If that's the case, that doesn't mean the Fourth Amendment was violated. Showing Fourth Amendment rights is just the beginning, as there are some ways to defeat those rights. I'll focus here on two: reasonable workplace searches and the possibility that the special counsel's team had one or more warrants. Let's start with reasonable workplace searches. If you apply the public-sector privacy framework of Quon, employers can conduct reasonable investigations into an employee's work-related misconduct without a warrant if it is justified at its inception and justified in scope. See Ortega, 480 U.S. at 724 (O'Connor, J., plurality opinion); Id. at 732 (Scalia, J., concurring). This allows warrantless government workplace searches as long as they are reasonable, even when the government employee has a reasonable expectation of privacy in his workplace computer. See, e.g., Leventhal v. Knapek, 266 F.3d 64 (2d Cir. 2001) (Sotomayor, J.). The basic idea is that if a government employee was involved in some sort of workplace misconduct, it may be reasonable for the boss—or authorities working for the boss—to get access to the contents without a warrant. This is a possible argument, but it's not clear to me how this reasonableness framework would apply to Mueller's investigation. Are the offenses here workplace misconduct? And is Mueller the agent of the employer? Neither is obvious to me. But it's an issue to consider if you first conclude that the transition members had Fourth Amendment rights in their transition e-mails. It is at least possible that the transition team members had Fourth Amendment rights in their e-mails but that the reasonable basis to believe that misconduct was afoot permitted Mueller's access. Second, I wouldn't completely rule out that Mueller's team had one or more warrants authorizing access to the emails. True, it seems that the GSA wasn't told about warrants being obtained. But sometimes investigators will get a warrant and then rely on a different legal way to search and seize without disclosing that a warrant was also obtained. For example, investigators might show up at a house armed with a warrant and instead ask for consent to search. If consent is given, the officers will keep the warrant in their back pocket and not disclose its existence. This has the advantage of hiding from the target that the government has probable cause to search while also permitting the government to later defend the search on the ground that the warrant authorized it. I have no idea if that happened here, and this is only speculation on my part. But Carr's cryptic statement—that "when [investigators] have obtained emails in the course of our ongoing criminal investigation, we have secured either the account owner’s consent or appropriate criminal process"—could be read as leaving open the possibility that investigators obtained one or more warrants but didn't disclose that to the GSA as a way of keeping the existence of probable cause away from the transition team members. It's perhaps not likely. But I'm not sure we can rule it out yet. |
There has been speculation that the Steele Dossier was the basis for the Russian investigation but I just read that the investigation was launched, at least in part, because George Papadopoulos spoke to an Australian official about Russia having emails on Clinton. That Australian then let US authorities know and that led to an investigation on Russian efforts and the Trump team's possible cooperation.
https://www.nytimes.com/2017/12/30/...stigation-began-george-papadopoulos.html?_r=0
https://www.nytimes.com/2017/12/30/...stigation-began-george-papadopoulos.html?_r=0
Mueller's mandate isn't limited in terms of subjects he can pursue. If it leads to Congress, that's within his authority. And while Congress appropriates money and can lay conditions on how it may be spent, Mueller was hired by the Justice Department, in a decision by Rod Rosenstein acting as Attorney General (since Sessions was recused), from existing appropriations for the operation of that department. Congress hasn't really had a say in it so far, but if they tried to yank funding, they could, albeit with significant political risk.
I would not be shocked if Devon Nunes eventually found himself in a spot of trouble.
I think it must have something to do with money laundering for the Russians. How did he get their help so easily?
When you're attacking FBI agents because you're under criminal investigation, you're losing.
Sara Huckabee Sanders
Sara Huckabee Sanders
Comey and Mueller are going down in flames when the rest of the country finds out about F.B.I. collusion with Russia and Great Britain to manipulate the Presidential election. A harder look at both of these criminals will also reveal dirty deals and coverups involving American Enrichment Corp. and enriched weaponizable material.
F.B.I. Management are the biggest criminals in Law Enforcement ..... if you don't realize that, you have not been paying attention.
F.B.I. Management are the biggest criminals in Law Enforcement ..... if you don't realize that, you have not been paying attention.
I just love how the wingnuts have nothing to offer. Foreign interference with elections is not new, but catching a politician in the act of money laundering is.
https://lawfareblog.com/why-hasnt-rod-rosenstein-recused-himself-mueller-investigation
Why Hasn’t Rod Rosenstein Recused Himself from the Mueller Investigation?
Why Hasn’t Rod Rosenstein Recused Himself from the Mueller Investigation?
| One puzzle that deepens with Mike Schmidt’s New York Times story on “Trump’s Struggle to Keep [a] Grip on [the] Russia Investigation” is why Deputy Attorney General Rod Rosenstein has not recused himself from overseeing the Mueller investigation. On Lawfare’s special edition podcast yesterday, Susan Hennessey briefly raised the issue, but the puzzle is worth unpacking a bit more here. Recall that Rosenstein is the acting attorney general for this matter because Attorney General Jeff Sessions recused himself. As a result, Rosenstein appointed Mueller and, under the relevant Order and incorporated regulations, supervises him. Rosenstein was also centrally involved in James Comey’s firing. When President Donald Trump fired Comey, he relied on a letter from Attorney General Jeff Sessions recommending the termination, as well as an oddly written memorandum from Rosenstein, on which Sessions also relied, that was highly critical of Comey’s handling of the Hillary Clinton investigation. A few days later, however, Trump made clear that his reliance on Rosenstein’s letter was (contrary to what he said in his letter firing Comey) secondary at best. In an interview with Lester Holt, Trump said that “regardless of the recommendation” by Rosenstein, and apparently before it was written, he was going to fire Comey because of the Russia investigation. (The president’s words were: “in fact when I decided to just do it, I said to myself, I said you know, this Russia thing with Trump and Russia is a made up story.”) It later emerged that in May 2017, just before Trump fired Comey, Trump and an aide drafted an “angry, meandering” termination letter to Comey at the president’s golf club in Bedminster, New Jersey. The Bedminster letter was never sent. But in a meeting in the Oval Office soon after it was drafted, Rosenstein “was given a copy of the original letter and agreed to write a separate memo for Mr. Trump about why Mr. Comey should be fired,” according to the New York Times. In short, before the Schmidt story, we knew that Rosenstein was intimately involved in the president’s decision to fire Comey. Rosenstein’s memo was used as a pretext to fire Comey; Rosenstein knew that the president wanted to fire Comey; and he read the Bedminster draft before he wrote his own memorandum. In this light, it has been very puzzling for a while why Rosenstein does not have a conflict of interest in the Mueller investigation. The Washington Post reported unequivocally that Mueller’s investigation includes “whether President Trump attempted to obstruct justice,” including, as a central issue, in his firing of Comey. Rosenstein was in the middle of that firing. He possesses information about the president’s beliefs and motives in firing Comey, and quite possibly a personal interest in how those beliefs and motives are construed, since he appeared to many to have been used by the president (and was reportedly very angry about it). Rosenstein would thus would very likely be a fact witness in any obstruction inquiry in connection with the Comey firing. It is hard to understand why he did not have a conflict of interest the moment Mueller’s investigation turned to obstruction in the firing of Comey. Schmidt’s story yesterday added two details that make it even harder to see why Rosenstein does not have a conflict. First, Schmidt reports that, contrary to White House claims, Trump’s Bedminster letter mentioned the Russia investigation in its first sentence and described it as “fabricated and politically motivated.” Since Rosenstein saw that letter before he wrote his memorandum—and perhaps even discussed the contents with the president or attorney general prior to drafting his own second memo—he knew that the president had the Russia investigation on his mind in wanting to fire Comey. He wrote his memorandum about Comey in light of this knowledge. Second, after reporting that Attorney General Sessions “wanted one negative article a day in the news media about Mr. Comey” and that a Sessions staffer approached a Hill staffer about whether he or she was in possession of any “derogatory information” about Comey, a claim denied by the attorney general’s spokesperson, Schmidt added: Earlier that day, Rod J. Rosenstein, the deputy attorney general, had pulled one of Mr. McGahn’s deputies aside after a meeting at the Justice Department. Mr. Rosenstein told the aide that top White House and Justice Department lawyers needed to discuss Mr. Comey’s future. It is unclear whether this conversation was related to the effort to dig up dirt on Mr. Comey. This suggests that Rosenstein had a more proactive role than has been previously believed in the firing of Comey. And it implies the possibility that he might have been involved in the effort to “dig up dirt” on Comey. Rosenstein thus appears to be smack in the middle of Mueller’s ostensible obstruction investigation. Indeed, he appears to have contributed to the firing and provided a seemingly neutral basis for it, with the knowledge that the president was motivated at least in part by the Russia investigation. If the president abused his power in firing Comey due to the Russia investigation, Rosenstein appears to have knowingly contributed to it. I cannot fathom how, in this light, he remains the supervisor in charge of that investigation, since a reasonable person would question his impartiality in the matter. One possibility is that Rosenstein has no conflict because Mueller is not actually investigating the president for obstruction. It has been widely reported for months in multiple reputable outlets that Mueller is conducting such an investigation. Schmidt’s story implies that he is, and reports that Mueller has evidence in his possession that appears relevant only to an obstruction investigation. However, Rosenstein’s Order appointing Mueller was directed to “the Russian government's efforts to interfere in the 2016 presidential election,” not obstruction of justice. While the Order contemplated that Mueller could go beyond the focus on Russian interference, we have no official confirmation that Mueller is investigating obstruction by the president. Moreover, Rosenstein has expressly stated that “if anything that I did winds up being relevant to his investigation then, as Director Mueller and I discussed, if there's a need from me to recuse I will.” Since it is hard to see how Mueller could be pursuing an obstruction investigation related to the Comey firing in which Rosenstein is not “relevant,” Rosenstein’s non-recusal might, despite the many stories to the contrary, be evidence that Mueller is not in fact investigating whether Trump obstructed justice or otherwise violated the law in firing Comey. Marty Lederman made this very point last summer. He noted the many legal and political reasons why Mueller might not want to open an obstruction investigation, and the lack of official confirmation of such an investigation. I agree and would add as another reason that such an investigation would entail the serious complication of Rosenstein’s recusal. And yet this analysis is hard to square with Mueller's apparent investigatory focus and evidence collection. A second possibility is that Mueller is investigating obstruction by the president and that, with respect to that issue, Rosenstein has in fact recused himself but not publicly announced it. (One reason not to announce it might be that such an announcement would be official confirmation that Mueller is in fact investigating obstruction by the president.) If so, then another DOJ official, presumably Associate Attorney General Rachel Brand, would be supervising Mueller on the obstruction issue. I do not know if such a partial recusal is legally possible, since the appearance or reality of a conflict with respect to one element of the investigation might infect the appearance or reality of a conflict with respect to the entire investigation. Moreover, such a partial recusal, even if appropriate, would be politically controversial in the sense that many would make the “infection” charge to discredit the investigation. (It is also hard to see how news of the partial recusal would not have leaked.) A third possibility is that Rosenstein is bending the rules a bit. With a president hostile to the investigation and the attorney general recused, Rosenstein (and Mueller) may feel that the situation is so fragile that everything possible must be done to avoid Rosenstein’s recusal, perhaps on the fear that a recusal would give the president ammunition to attack the entire investigation, or worse. If this is what is going on, then Rosenstein has surely obtained the appropriate authorizations from the appropriate DOJ ethics unit. Such an authorization might satisfy any technical legal concern about a conflict of interest. But it would not satisfy the inevitable political concerns about such a conflict, and indeed it might fuel such attacks down the road in a way not helpful to the investigation. Something here doesn’t make sense. |
I don't think Mueller started his investigation because he thought the dossier was accurate. Michele Steele is not a whistle-blower. As prankster, he is getting exactly what he deserves.
Yep, they're making room at Guantanamo.
If Comey, Mueller and the FBI are guilty of collusion, where does that put Donald Jr., Jared Kushner and Paul Manafort who met with the Russians in Trump Towers to get illegally hacked "dirt" on Hillary Clinton from the DNC computers?
"The Donald" was not only in the building at the time of the meeting, but later provided the false "cover story" that the meeting was a "nothing burger" about Russian adoptions!
Even Trump's former Campaign Manager and Chief Advisor, Steve Bannon, has characterized this meeting with the Russians, and its attempt to influence the American election, as "treason," while one of Trump's lawyers resigned in protest over the President's false "cover story" to mislead the American public!
If Comey, Mueller and the FBI are guilty of collusion, where does that put Donald Jr., Jared Kushner and Paul Manafort who met with the Russians in Trump Towers to get illegally hacked "dirt" on Hillary Clinton from the DNC computers?
"The Donald" was not only in the building at the time of the meeting, but later provided the false "cover story" that the meeting was a "nothing burger" about Russian adoptions!
Even Trump's former Campaign Manager and Chief Advisor, Steve Bannon, has characterized this meeting with the Russians, and its attempt to influence the American election, as "treason," while one of Trump's lawyers resigned in protest over the President's false "cover story" to mislead the American public!
Don't forget Mark Corallo, who resigned from Trump's legal team because he thought the meeting aboard Air Force One represented obstruction of justice.
http://www.businessinsider.com/trum...one-meeting-was-obstruction-of-justice-2018-1
[h=1]Robert Mueller Caught Planning Coup D'ETAT against President Trump[/h]
https://youtu.be/cv16MI4U_1Y
https://youtu.be/cv16MI4U_1Y
Maybe Mueller is working with Trump. Remember, Mueller "interviewed" for the FBI Director job with Trump the day before Rosenstein appointed him. Mueller served as Director for 12 years, the term limit is 10. He was granted an additional 2 years by Obama and Congress, so it wasn't an interview for FBI Director. Trump promised to appoint a special prosecutor to "look into her situation" and the Special Counsel into Trump says any connections or anything that arises from the investigation will be pursued. Enter Hillary. Everybody assumes that Mueller is out to get Trump but maybe he's following the REAL evidence since we all know there is NO evidence against Trump. Wishful thinking? We'll see.
The special counsel Robert Mueller is getting ready to interview Hope Hicks, the White House communications director and one of President Donald Trump's closest aides.
Hicks was present during several moments leading up to Trump's decision to fire James Comey as FBI director.
Mueller also asked the Department of Justice for documents related to Comey's firing and Attorney General Jeff Sessions' recusal from the Russia investigation.
Comey's firing makes up the basis of an obstruction-of-justice case Mueller is building against Trump, and experts say Mueller's document requests and readiness to interview one of Trump's key advisers indicate that the case is nearing its conclusion.
http://www.businessinsider.com/mueller-trump-russia-hope-hicks-obstruction-of-justice-2017-11
Hicks was present during several moments leading up to Trump's decision to fire James Comey as FBI director.
Mueller also asked the Department of Justice for documents related to Comey's firing and Attorney General Jeff Sessions' recusal from the Russia investigation.
Comey's firing makes up the basis of an obstruction-of-justice case Mueller is building against Trump, and experts say Mueller's document requests and readiness to interview one of Trump's key advisers indicate that the case is nearing its conclusion.
http://www.businessinsider.com/mueller-trump-russia-hope-hicks-obstruction-of-justice-2017-11
:rotfl: Bannon just subpoenaed by Mueller. That proves he's got nothin'.
Yesterday, Bannon apparently invoked Executive Privilege all day. :rotfl:
Mueller investigation is doomed.
https://usawatchdog.com/mueller-investigation-now-doomed-fake-news-awards-and-economic-update/
https://usawatchdog.com/mueller-investigation-now-doomed-fake-news-awards-and-economic-update/