ICYMI: GSA May Have Improperly Disclosed Privileged and Confidential Documents to Special Counsel

The General Services Administration (GSA) may have improperly turned over documents, including private and privileged documents, from the Trump transition team to Special Counsel Robert Mueller.  RNLA member Kory Langhofer, counsel to Trump for America (TFA), the 501(c)(4) organization that supported the Trump Presidential transition, wrote:

To inform the Committees of unlawful conduct that undermines the Presidential Transition Act of 1963, as amended, and will impair the ability of future presidential transition teams to candidly discuss policy and internal matters that benefit the country as a whole. More specifically, we write to inform you that (a) career staff at the General Services Administration (“GSA”) have unlawfully produced TFA’s private materials, including privileged communications, to the Special Counsel’s Office; and (b) although the Special Counsel’s Office was aware that the GSA did not own or control the records in question, the Special Counsel’s Office has extensively used the materials in question, including portions that are susceptible to claims of privilege, and without notifying TFA or taking customary precautions to protect TFA’s rights and privileges; and  

To request that Congress act immediately to protect future presidential transitions from having their private records misappropriated by government agencies, particularly in the context of sensitive investigations intersecting with political motives. 

Mr. Langhofer's letter details the various ways in which the GSA improperly reviewed and disclosed presidential transition team records and the improper ways in which they have been reviewed and used by the Special Counsel.  He notes that TFA only became aware of the improper disclosure last week.  Mr. Langhofer also makes a number of recommendations for statutory changes that would prevent such situations in the future and protect future presidential transition teams' confidentiality and privilege.

The House Oversight Committee is taking the letter under advisement regarding whether Congress should act to protect presidential transitions' records, but stated that the improprieties described in the letter would fall under the purview of a court, not Congress.  The Senate Committee on Homeland Security and Government Affairs, however, sent a letter to the GSA on Tuesday requesting a number of documents by January and noting (footnotes omitted; emphasis added):

According to the allegations received by the Committee, the GSA's General Counsel's office provided records owned by TFA to the Special Counsel's Office without the consent of or notice to TFA.  The GSA's General Counsel's office allegedly provided these records without the execution of a search warrant or a subpoena; instead, it produced the material voluntarily in response to a request letter.  In defending these actions, GSA's Deputy General Counsel Lenny Loewentritt suggested that GSA maintained a degree of control over the records, stating that transition team members entered into agreements acknowledging possible GSA "monitoring and auditing of devices."  The GSA General Counsel's office allegedly did not review the material for privilege or relevancy before providing records to the Special Counsel's Office.  In addition, according to the allegations, the Special Counsel's Office failed to implement methods--such as "taint teams" or "ethics walls"--to protect any privileged material. . . . 

GSA's alleged actions could have serious ramifications for presidential transitions in the future.  An incoming administration must be ready to govern on day one.  Any threat to the close coordination between the transition and outgoing administration could create vulnerabilities to governance, readiness, and national security.  In minimizing vulnerabilities caused by a transition, the Justice Department has advised "afford[ing] the confidentiality necessary for candid and effective/transition team communications."  The allegations received by the Committee--namely that GSA turned over TFA privileged material, and that material later became public--could discourage future transitions from trusting GSA to secure its confidential information.

If the allegations in Mr. Langhofer's letter are true, the disclosure of the documents by GSA without any relevancy or privilege review is an astounding breach of the Trump transition's rights of confidentiality.  We will monitor this story for further developments.