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December 22, 2017

Image: President Trump’s personal attorney Michael Cohen after finding out the Senate Intelligence Committee hearing at which he was to appear was canceled, on September 19, 2017 in Washington, DC. (Mark Wilson/Getty Images)

Here is an exposition and analysis of some of this week’s national security-related Twitter threads authored by Just Security Editorial Board member and former federal prosecutor Renato Mariotti.

Trump Lawyer Says Didn’t Confront Mueller Before Sending Letter to Congress

In this thread, Mariotti builds on his analysis of the legal weaknesses in the Trump defense team’s argument that Mueller improperly obtained transition emails through the Government Services Administration (GSA).

Under the Fourth Amendment, the government may not unreasonably search or seize the property or effects of an individual. The modern test, based on the Supreme Court case Katz v. U.S. 389 U.S. 347 (1967), looks at whether a person has a reasonable expectation of privacy in an item as an essential element of the analysis. If the person does, the government usually needs a warrant based on probable cause to obtain or search the property.

Here, the Trump transition team signed an agreement with the GSA stipulating that they had no expectation of privacy in transition emails stored on GSA servers. That is critical to Mariotti’s analysis.

Trump Lawyer Upset that Mueller Obtained Transition Emails through GSA

In this thread, Mariotti says that while it is common for a prosecution to obtain emails from third parties, it is unusual that the Mueller investigation did so when it could have gotten them directly from the Trump team. Typically, a prosecution will prefer to obtain emails from the defense directly, rather than from another source, because the defense will sort out the relevant emails.

Mariotti suggests two possible reasons for what happened in this case. First, Mueller’s investigation may not have believed that Trump’s team would produce all the relevant emails. Second, investigators may have wanted to surprise individuals whom they were interviewing with knowledge obtained from those emails. However, Mariotti notes the latter reason is unlikely, because the defense counsel should have reviewed relevant emails with their clients before letting them be interviewed.

Mariotti adds that prosecutors usually need to get a warrant to obtain emails from a third party. If the Mueller investigation obtained one, it convinced a federal judge that there was probable cause to believe a crime occurred and that the emails contained evidence of the crime.

Mariotti notes that obtaining documents from a third party raises privilege issues because third parties do not remove privileged materials. However, Trump’s defense team can move to exclude privileged documents from evidence at trial, and usually the prosecutor agrees to return them without the court’s intervention.

But the Trump team’s decision to send a letter to Congress is unusual. Mariotti writes that they may be trying to discredit Mueller in the political arena. He adds that they only claim the emails are “susceptible to privilege claims,” rather than claiming they are privileged, suggesting they do not view their claims as being strong enough to test in court. Subsequent to this tweet thread, it was reported that Mueller obtained these emails by request and without having to resort to a warrant.

Trump’s Lawyers Meet with Mueller Investigators

In this thread, Mariotti notes that Trump’s personal lawyers are preparing to meet with the Mueller team, and that it is common for a person’s attorneys to meet with prosecutors to determine whether charges may be brought. Mueller’s team is likely to respond that they will continue gathering evidence until they have completed their investigation, he adds. Finally, Mariotti emphasizes the need to monitor Trump’s reaction in case Mueller informs them that the investigation is going to carry on, against Trump’s team’s expectations that it will end soon.

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