Counsel representing the remnants of President Donald Trump’s transition team has claimed, in a lengthy, headline-grabbing letter to Congress, that Justice Department Special Counsel Robert Mueller improperly obtained transition emails from the General Services Administration, which the transition contends was not within its rights to hand over thousands of documents preserved on government-owned IT infrastructure.
That claim appears to conflict with the agreement the Trump transition entered with GSA before the election, which contains no obvious prohibition on GSA providing law enforcement officials with transition documents, no provision denoting the documents as being the property of the transition team, and even suggests Trump transition officials waived their privacy rights when they accepted government-furnished laptops and smartphones.
The memorandum of understanding between the GSA and Trump—which I obtained over a year ago, pursuant to an unrelated FOIA request for “[a]ll memoranda of understanding and correspondence between the GSA and the Trump PTT produced after May 6, 2016”—specifically, and with added emphasis, advises the Trump transition that “Office of the President-elect staff members will be required to individually sign and accept [government furnished] laptop and Smartphone while accepting IT Rules of Behavior to safeguard the assets and the integrity of the network infrastructure.”
Those rules of behavior include a privacy waiver, which notes that, “Users have no expectation of privacy on GSA IT resources since all activities are subject to monitoring.”
An attorney for Trump for America, which houses the transition, declined to comment on the record. It is possible that subsequent memoranda or amendments to the memorandum contained more specific language regarding the ownership of transition emails, or established an expectation of privacy for Trump transition members. I first obtained the MOU on Thursday, December 6, 2016. In June of this year, one month after Mueller was appointed special counsel, the Trump transition claims it received an assurance from the GSA’s then general counsel, Richard Beckler, that the transition owned its emails, and that GSA was merely serving as custodian of them.
Beckler passed away in August, but his deputy counsel, Lenny Loewentritt, who was present for the deliberations between the transition and GSA, disputes the Trump team’s account entirely.
Loewentritt denied to Buzzfeed’s Chris Geidner that GSA ever assured the Trump transition that the Trump campaign “owned and controlled” transition emails, or that “requests for the production of PTT records would…be routed to legal counsel” for the transition.
Loewentritt told Buzzfeed that, “‘in using our devices,’ transition team members were informed that materials ‘would not be held back in any law enforcement’ actions.”
The liberal watchdog group American Oversight, which independently requested the Memorandum of Understanding between GSA and Trump in April, and obtained it in September, notes that the later-obtained MOU does not reflect any subsequent amendments pertaining to the ownership of the emails, but also cautions that the document contains multiple redactions, which could alter the meaning of the unredacted text of the agreement.
Nevertheless, American Oversight’s Executive Director Austin Evers tells me, “It defies logic that the GSA agreed to a system where the presidential transition team would be specially insulated from legitimate law enforcement inquiries. Everything in the public record indicates the opposite: transition team members were warned in writing they had no expectation of privacy and a witness with direct knowledge to the conversation disputes the Trump team received any assurances to the contrary. It speaks volumes that the Trump team has brought its complaints to everyone except the only person who could do something about them—a federal judge. Until they do, the most important takeaway from this incident is that the Trump transition team appears to have withheld important evidence from the Special Counsel.”
You can read the Memorandum of Understanding and the GSA’s Rules of Behavior below.