FILE - In this Oct. 28, 2013, file
photo, former FBI Director Robert Mueller is seated before President
Barack Obama and FBI Director James Comey arrive at an installation
ceremony at FBI Headquarters in Washington. A veteran FBI
counterintelligence agent was removed from special counsel Robert
Mueller's team investigating Russian election meddling after the
discovery of an exchange of text messages seen as potentially
anti-President Donald Trump, a person familiar with the matter said
Saturday, Dec. 2, 2017. (AP Photo/Charles Dharapak, File)
(Copyright 2017 The Associated
Press. All rights reserved.)
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.
Privileged Material
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." (U.S. v. Taylor 764 Fed Sup 2nd, 230, 235)
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.
Hence, if any illegally obtained documents have been
used in the Trump-Russia case, then the results are tainted and
invalid. This is a well-established principle of law.
Mueller Must Be Removed
The use by Mueller of even one privileged document can, and must, result in his disqualification from the case.
The case of Finn v. Schiller, 72 F.3rd 1182, 1189 spells out the required remedy for this violation of the law:
"Courts
have frequently used their supervisory authority to disqualify
prosecutors for obtaining materials protected by the attorney-client
privilege."
Statutory law also demands Mueller's removal. Pursuant
to 5 C.F.R. 2635.501, government employees, including prosecutors, are
directed to
"take appropriate steps to avoid an appearance of loss of impartiality in the performance of his or her official duties."
The lawyer for the Trump transition team states that
the special counsel's office admitted in a telephone conversation on
Friday that it failed to use an "ethical wall" or "taint team" to
segregate any privileged records. This is often done to keep them
isolated from lawyers and investigators involved in the case.
Yet, Mueller did not adopt such precautionary
measures. Instead, he apparently allowed his team to utilize the
documents while questioning witnesses in the Trump-Russia case.
If true, Mueller's conduct is not only unethical and
improper, it constitutes lawlessness. On this basis, he must be removed
and replaced.
Given the insular nature of the special counsel
operation, it is reasonable to conclude that all the lawyers and
investigators likely accessed the privileged documents. Therefore, not
just Mueller, but his entire team must be dismissed. This would include
Deputy Attorney General Rod Rosenstein who oversees the case.
Either Congress should take aggressive action or the
Presidential Transition Team (now Trump for America, Inc.) must petition
a federal judge to order their removal.
The integrity of the special counsel probe has been
deeply compromised by numerous allegations of corrupt acts. In its
current composition, it seems beyond repair.
Gregg Jarrett joined FOX News Channel (FNC) in 2002 and is based in
New York. He currently serves as legal analyst and offers commentary
across both FNC and FOX Business Network (FBN).