Did the special counsel violate Trump transition team privacy?

Let’s assume, purely hypothetically, that one day special counsel Robert Mueller becomes a villain even to the anti-Trump crowd, and he comes under criminal investigation for conduct having nothing whatsoever to do with his official position. Despite his outwardly cautious manner, it turns out he used his special counsel’s (or even his former FBI director’s) email account to engage in or even make admissions about the wrongdoing. Maybe he even emailed confidential information to his personal lawyer about the investigation of him, before he is terminated. Hard to imagine, but stranger things have happened.

Assume, then, that the Justice Department attorneys investigating our hypothetical citizen Mueller pull his emails that were transmitted using his government email account. His lawyer finds out and goes ballistic, declaring, “Those emails were private and my client had an expectation of privacy. The Justice Department seized those emails illegally in violation of the Fourth Amendment and they and any evidence flowing from them must be suppressed.”

{mosads}Citizen Mueller and his lawyer will be out of luck. Mueller would simply have had no expectation of privacy in his government email account, even if the emails had nothing to do with official business. In fact, government email systems specifically tell you when you access them that you are using a government account and have no expectation of privacy. It is, typically, the same in corporate America, where firms warn you every time you turn on your computer that they can monitor or retrieve information and make disclosure to law enforcement because “you have no expectation of privacy.” Virtually all human resources handbooks, both private sector and government, say precisely that the email system belongs to the employer, and you waive any expectation of privacy in what you transmit over it.

That rule has gone pretty far. Consider that some years back, a famous orthopedic surgeon, Dr. Norman Scott, was in an employment dispute with Beth Israel Hospital in New York. He transmitted, over his Beth Israel account, emails with his personal lawyer who was representing him in that very dispute. Scott attempted to enjoin Beth Israel’s lawyers from reading or making any use whatsoever of what would have been privileged emails had they not been transmitted through Beth Israel. Scott, litigating in state court in New York, lost that battle!

To the privacy protectors among us, and we consider ourselves members in good standing, this result seems wrongheaded. Scott, or Mueller in our oddly put hypothetical, was having private communications which had nothing to do with their jobs. The fact that they were using a government or corporate system to transmit those communications should, in our view, be irrelevant. Having said that, current law, while not entirely settled, says otherwise, and both Scott and (hypothetical) Mueller were specifically on notice.

So what’s the point here? Trump supporters, in the person of “Trump for America” lawyers, are now claiming that Mueller, as special counsel, improperly obtained from the General Services Administration (GSA) emails transmitted to and from the Trump transition team in the weeks preceding Trump’s inauguration in violation of the privacy rights of the team, reportedly including Jared Kushner. GSA had the emails because, as part of its duties, it provides the incoming administration with office space and hosts a secure “ptt.gov” email system.

Now, if those emails had been transmitted over, say, Kushner’s private email account, Mueller could certainly subpoena them. Whether on a personal or GSA account, if they are non-privileged, they must be produced. But if Kushner was communicating with his personal lawyer, those emails would likely be exempt from production as protected by the attorney-client privilege if they came from his personal account. If transmitted through a third party, such as GSA, there should have been no expectation of privacy whatsoever and these otherwise protected emails are subject to production. According to GSA deputy counsel Lenny Loewentritt, the transition team was specifically told that in using GSA’s devices, materials would not be held back from law enforcement. Indeed, he stated that transition officials signed agreements that warned that materials on government servers are subject to monitoring, and that there can be no expectation of privacy.

Now, for sure, and once again, it doesn’t seem quite right that a special counsel or any prosecutor can basically “break in” to the private emails of persons who happen to be using a government (or corporate) account. A prosecutor cannot listen in on a private telephone conversation merely because the phone being used belongs to the government or a corporation that employs him. Why shouldn’t the same rule apply to emails? The answer to this quandary is simple, sort of, and many government employees do it this way, assuming national security is not an issue. When they communicate about something unrelated to work, they sign on, instead, to their personal Gmail or Yahoo account.

But since government and private employees spend enormous amounts of time in front of our work computers, or on our work phones, one may not always remember to switch to a personal account, or one may simply want the ease of using the email system which is always at their fingertips. Whatever her true purpose, and it certainly remains in substantial dispute, Hillary Clinton actually used her personal server for what sometimes seemed related to official business, much to the chagrin of nearly everyone, including her apologists. The smart money is that she did it precisely to keep information, in part, from official eyes.

So if President Trump, who seems not to use email, is bothered by Mueller’s “gross violation of privacy rights,” his course is uncomplicated. He should not fire the special counsel for playing hardball with his transition team’s emails, but should rather use the bully pulpit of his presidency to propose legislation that will protect not only the insiders in his administration and his former transition team, but also the rest of us, from yielding too much privacy when we, knowingly, unknowingly or mistakenly, send an email on our business account.

Joel Cohen is of counsel at Stroock & Stroock in New York. He previously served as an assistant attorney at the U.S. Department of Justice.

Dale Degenshein is special counsel at Stroock & Stroock in New York.