1/ Today @axios reported that Mueller obtained tens of thousands of emails from the General Services Administration, which possessed them.

Scoop: Mueller obtains "tens of thousands” of Trump transition emails
Including emails of Jared Kushner
https://www.axios.com/scoop-mueller-obtains-tens-of-thousands-of-trump-transition-emails-2517994590.html

2/ @axios reported that the emails included very frank discussions as well as emails from Jared Kushner. Trump’s team was unaware that Mueller possessed the emails and were surprised when Mueller’s team asked questions based on the emails.

3/ Now Trump’s team has written a letter to Congress, complaining that some of the materials were “susceptible to privilege claims.” So what does this mean?

4/ First of all, it’s not unusual at all for prosecutors to obtain emails from other parties. That’s extremely common in white collar criminal investigations and is not improper.

5/ What *is* unusual here is that Mueller obtained emails from GSA even though he could have obtained (many of) the same emails from lawyers for the Trump Transition.

6/ Typically, in a white collar case, prosecutors obtain as many emails and documents as possible from defense attorneys instead of from another source.

7/ That’s because the defense team would review the emails, take out the ones that are not relevant, sort the emails, and put them in a format could be useable by Mueller.

8/ When a prosecutor obtains emails from a third party, usually irrelevant emails aren’t sorted out. So why would Mueller get the emails from GSA instead?

9/ One reason comes to mind. Mueller was concerned that he wouldn’t receive all of the emails if he obtained them from the Trump team. That’s surprising and suggests that he has reason to distrust Trump’s team.

10/ It appears that obtaining the documents from GSA also allowed Mueller to surprise witnesses who were not prepared to talk about emails that they didn’t think he had.

11/ I doubt that’s why Mueller obtained emails from GSA because any good lawyer would have reviewed the emails with their client anyway prior to an interview. Either the defense lawyers were incompetent or they weren’t surprised as they’re letting on.

12/ One important issue I should note is that typically prosecutors cannot obtain emails from a third party without using a search warrant, not a subpoena.

13/ If that happened here, it would mean a federal judge found that there was good reason to believe that a crime was committed and the emails contained evidence of a crime.

14/ In any event, when a prosecutor obtains emails from a third party, privileged documents are not removed. Typically prosecutors use “taint teams” to remove privileged documents before the prosecution team reviews them.

15/ If Mueller obtained a privileged email, the defense would be able to exclude it as evidence at trial. Typically all that happens is that the defense raises the issue with the prosecutor, and if the prosecutor agrees it is privileged, they return the privileged document.

16/ Disputes over privilege are common when prosecutors obtain emails and documents from third parties. That’s very common. What’s uncommon is what the Trump lawyers did here.

17/ Instead of sending a letter to Mueller, the attorneys sent a letter to Congress. Why? Probably to try to feed the growing effort to fire Mueller and/or try to discredit him to Congressional Republicans.

18/ Note also that the lawyers *don’t* say that the emails are privileged. They merely claim that some of the emails are “susceptible to privilege claims.” That’s weak language that suggests they’re not confident they have a strong claim that some of the emails are privileged.

19/ The biggest conclusion I’d draw from their letter is that they’re concerned about Mueller’s investigation and are doing whatever they can to discredit it. Their claims themselves are weak and are meant to persuade people who know nothing about criminal investigations. /end