“Cascading Problem of Contamination”: Lawyers Take Blowtorch To Mueller Email Seizure That “Likely Violated Law”

Tuesday, December 19, 2017
By Paul Martin

by Joshua Caplan
December 19, 2017

Legal experts weighing in on special counsel Robert Mueller’s seizure of Trump transition emails believe not only did the move likely violate the law, but may represent a larger problem for Russia investigators if they decide to go to trial. Lawyer Robert Barnes argues the document grab “cannot conform to either Fourth Amendment standards or attorney-client privilege protections.”

In an op-ed titled “LEGAL ANALYSIS: Why Mueller’s Seizure of Transition Emails Likely Violated the Law” Barnes writes:

Courts held individuals who agreed, as a condition of employment to “any future searches” did not waive their right against such searches because the waiver failed to give them the “right to refuse to give consent to the future search.” For the government to claim implied consent or waiver, “requires clear notice that one’s conduct may result in a search being conducted of areas which the person has been warned are subject to search,” and such notice must ensure an individual “had knowledge of the right to refuse to give consent.” […] Hence, a broad waiver was found inadequate to permit a search. […]. The Supreme Court made it clear the question usually “must be addressed on a case-by-case basis” and rarely subject to blanket waivers of Fourth Amendment liberties. […]

Courts held that an employee has a reasonably expectation of privacy in the contents of his computer even when given specific notice the computers could not be used for personal purposes and the individual had authorized disclosure for technical and maintenance audits.

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