It is important to note that Mueller’s move takes his investigation into uncertain legal territory and may ultimately create some new law in his favor. Then again it might not. The question is why Mueller would take the risk.
At issue are records held on computers and devices like mobile phones and iPads from the Trump transition team. Transition teams have long held an ambiguous position in our government. They are necessary to ensure the smooth transfer of power in the selection of new appointees and the development of policies. However, since they work before the inauguration for a president-elect, they are not considered an “agency” for the purposes of federal law.
Indeed, there are a host of special rules reaffirming the special status of transition teams and their work product. While the GSA is tasked with supplying space and equipment for transition officials, the National Archives has expressly maintained that the “materials that [presidential transition team] members create or receive are not federal or presidential records, but are considered private materials.” For this reason, under agreements with transition teams, the GSA has agreed to delete “all data on [computing] devices” used by transition officials and staff.
When Mueller’s people found out that the transition records were not yet deleted, they demanded their surrender despite the fact that Trump officials claimed that the material held privileged information that belonged to the transition team and is subject to protection from discovery. Richard Beckler, general counsel for the GSA, reportedly agreed with transition officials that this information belonged to the transition team and that GSA had no right to access or control the records. The Trump lawyers argue that, when Beckler was hospitalized, Mueller’s people moved on the seizure and acquired the thousands of messages.