Criminal Justice & the Rule of Law

Did the Special Counsel's Access to the Transition's Emails Violate the Fourth Amendment?

Orin Kerr
Monday, December 18, 2017, 8:51 PM

There has been a lot of buzz the past couple of days about claims by Kory Langhofer, counsel for Trump for America, that Robert Mueller's investigators wrongfully obtained copies of the presidential transition team's emails. One of the claims in Langhofer's letter is that the access violated the Fourth Amendment. I haven't seen a substantial legal analysis of this issue yet, so I thought I would try one.

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There has been a lot of buzz the past couple of days about claims by Kory Langhofer, counsel for Trump for America, that Robert Mueller's investigators wrongfully obtained copies of the presidential transition team's emails. One of the claims in Langhofer's letter is that the access violated the Fourth Amendment. I haven't seen a substantial legal analysis of this issue yet, so I thought I would try one.

My bottom line: Langhofer's claim that access to the emails violated the Fourth Amendment is likely wrong. At the same time, it's not necessarily frivolous. And depending on how the facts turn out, it may be plausible.

Let's start with the facts as best I can identify them. (And let me stress that "as best I can identify them" is an important caveat. There's a lot that we don't yet know.) The Trump transition team was provided email accounts, computers and phones from a government agency, the General Services Administration (GSA). Langhofer writes in his letter that GSA representatives made promises to keep their contents private and not reveal them. Others dispute that such promises were made, pointing to the fact that anyone who used the GSA accounts received notice that the accounts could be monitored and that no reasonable expectation of privacy was assumed.

It's also not entirely clear if legal process was obtained. It appears from this interview that the GSA was unaware of any legal process being obtained. On the other hand, Mueller spokesman Peter Carr has stated that "[w]hen [investigators] have obtained emails in the course of our ongoing criminal investigation, we have secured either the account owner’s consent or appropriate criminal process." It's not clear what that means, as we don't know who the investigators were considering "the account owner" or what "process" the investigators think is "appropriate." More on this below.

So how does the Fourth Amendment apply?

This is a somewhat novel question. We can start by recognizing the general agreement that the contents of remotely stored email are ordinarily protected under the Fourth Amendment. Several circuits and a bunch of district and state courts have held that, and the Justice Department conceded it in the Carpenter litigation.

From there things get at least a little tricky. On one hand, there is a special legal framework that courts have used to analyze Fourth Amendment rights in government computers used by government employees under the Supreme Court's decision in O'Connor v. Ortega. On the other hand, it's not entirely clear that particular framework should apply.

The problem, it seems to me, is that presidential transitions are themselves a strange mix of private and public. I'm no expert on this, but from what I can tell they are nonprofits funded partially through congressional appropriations and partially through dollar-limited private contributions. Given that, it's not entirely clear which Fourth Amendment framework applies: The framework for government employee privacy or for private-sector-employee privacy? I think either way one probably gets to roughly the same point, for reasons that I'll explain in a minute. But it isn't totally clear.

Now let's get into the analysis.

If you assume that the Trump transition did not receive any oral promises of confidentiality, then the Fourth Amendment very likely was not violated by the Mueller team's access to the emails. How you get there depends on whether you consider this a public-sector privacy case or a private-sector privacy case. If it's a public-sector privacy case, then the presence of an unambigous policy that users have no privacy rights is determinative. Under the special rules of O'Connor v. Ortega, a "legitimate regulation" such as a workplace policy purporting to eliminate privacy rights has the legal effect of doing so. See United States v. Thorn, 375 F.3d 679, 683-84 (8th Cir. 2004).

If you see this as a private-sector privacy case, you likely get to the same result—but arrive there in a slightly different way. Under that assumption, the unambiguous policy likely gives the provider (here, the GSA) common authority to give third-party consent to disclose the materials to others. See United States v. Ziegler, 474 F.3d 1184 (9th Cir. 2007). The policy wouldn't eliminate Fourth Amendment rights altogether, but it would probably give the third-party provider the right to control who gets the emails. And because it seems the GSA voluntarily handed over the emails, that would seem to suggest that the third-party consent was proper and the emails were properly disclosed.

So far, so good. In all likelihood, that's the answer.

But there's a potential complication. If the Trump transition was told that its materials would not be disclosed, that might lead to a different result. The case that comes to mind is the Ninth Circuit's ruling in Quon v. Arch Wireless, 529 F.3d 892 (9th Cir. 2008), which was reversed on other grounds—without deciding the relevant issue—in City of Ontario v. Quon, 560 U.S. 746 (2010).

In Quon, there was a formal workplace policy that on its face seemed to say that city employees had no privacy rights in their city-provided text pagers. On the other hand, there was an informal understanding, based on what the bosses actually told their employees, that the bosses wouldn't look at the contents of the messages except in particular circumstances.

In an opinion by Judge Kim McLane Wardlaw, the Ninth Circuit held that the "operational reality" based on the informal understanding trumped the formal policy. Mr. Quon therefore had Fourth Amendment rights in the contents of his government-provided pager even though there was a policy indicating he didn't. Id. at 907. The Supreme Court then granted cert and reversed the Ninth Circuit on the grounds that even if Quon had Fourth Amendment rights—a point the Supreme Court assumed without deciding it—accessing the contents of the messages was reasonable under the circumstances.

If it's true that the Trump transition team was told its e-mails would not be accessed or disclosed, Judge Wardlaw's opinion in Quon gives the transition members a possible argument that the Fourth Amendment was violated despite the workplace policies.

I should stress that Wardlaw's opinion is a thin reed on which to rest. The Supreme Court reversed the Ninth Circuit in Quon and didn't take a position on the issue. Judge Wardlaw's opinion in Quon is itself an outlier, and showing Fourth Amendment rights in the emails is just a threshold question.

But it's at least an argument, albeit one with the amusing irony of the Trump transition possibly having to rely on a Wardlaw opinion joined by Judge Harry Pregerson to get some legal footing. (Presumably there's a private-sector analogy to the same position, that the claimed promise of confidentiality meant that the provider lacked third-party consent rights. But there isn't a lot of case law on how that argument would apply here.)

Let's say you buy the argument that, under the Ninth Circuit's analysis in Quon, the Trump transition members had some Fourth Amendment rights in their emails despite the policy. If that's the case, that doesn't mean the Fourth Amendment was violated. Showing Fourth Amendment rights is just the beginning, as there are some ways to defeat those rights. I'll focus here on two: reasonable workplace searches and the possibility that the special counsel's team had one or more warrants.

Let's start with reasonable workplace searches. If you apply the public-sector privacy framework of Quon, employers can conduct reasonable investigations into an employee's work-related misconduct without a warrant if it is justified at its inception and justified in scope. See Ortega, 480 U.S. at 724 (O'Connor, J., plurality opinion); Id. at 732 (Scalia, J., concurring). This allows warrantless government workplace searches as long as they are reasonable, even when the government employee has a reasonable expectation of privacy in his workplace computer. See, e.g., Leventhal v. Knapek, 266 F.3d 64 (2d Cir. 2001) (Sotomayor, J.). The basic idea is that if a government employee was involved in some sort of workplace misconduct, it may be reasonable for the boss—or authorities working for the boss—to get access to the contents without a warrant.

This is a possible argument, but it's not clear to me how this reasonableness framework would apply to Mueller's investigation. Are the offenses here workplace misconduct? And is Mueller the agent of the employer? Neither is obvious to me. But it's an issue to consider if you first conclude that the transition members had Fourth Amendment rights in their transition e-mails. It is at least possible that the transition team members had Fourth Amendment rights in their e-mails but that the reasonable basis to believe that misconduct was afoot permitted Mueller's access.

Second, I wouldn't completely rule out that Mueller's team had one or more warrants authorizing access to the emails. True, it seems that the GSA wasn't told about warrants being obtained. But sometimes investigators will get a warrant and then rely on a different legal way to search and seize without disclosing that a warrant was also obtained. For example, investigators might show up at a house armed with a warrant and instead ask for consent to search. If consent is given, the officers will keep the warrant in their back pocket and not disclose its existence. This has the advantage of hiding from the target that the government has probable cause to search while also permitting the government to later defend the search on the ground that the warrant authorized it.

I have no idea if that happened here, and this is only speculation on my part. But Carr's cryptic statement—that "when [investigators] have obtained emails in the course of our ongoing criminal investigation, we have secured either the account owner’s consent or appropriate criminal process"—could be read as leaving open the possibility that investigators obtained one or more warrants but didn't disclose that to the GSA as a way of keeping the existence of probable cause away from the transition team members. It's perhaps not likely. But I'm not sure we can rule it out yet.

Orin Kerr is a Professor at the University of California, Berkeley School of Law. He is a nationally recognized scholar of criminal procedure and computer crime law. Before becoming a law professor, Kerr was a trial attorney in the Computer Crime and Intellectual Property Section at the Department of Justice and a Special Assistant U.S. Attorney in the Eastern District of Virginia. He is a former law clerk for Justice Anthony M. Kennedy of the U.S. Supreme Court and Judge Leonard I. Garth of the U.S. Court of Appeals for the Third Circuit.

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