LEGAL ANALYSIS: Why Mueller’s Seizure of Transition Emails Likely Violated the Law

Law & Crime
December 19, 2017

Robert Mueller

According to published reports, Special Counsel Robert Mueller engaged in a mass seizure of all emails of the Trump transition team without even a warrant or a subpoena. In my opinion, a mass seizure – as is alleged here against Mueller – cannot conform to either Fourth Amendment standards or attorney-client privilege protections. The questions boils down to this: was there a reason for the individuals communicating by email, including with their lawyers, to believe their communications were private or privileged? Or, did the individuals forever waive or “implicitly consent” to any future search or seizure of their emails?

The Supreme Court in 2010 “counsels caution” before too soon defining “the existence, and extent, of privacy expectations enjoyed by employees when using employer-provided communication devices” until popular use of the technology used was better developed socially. (City of Ontario, Cal. V. Quon, 560 U.S. 746 (2010).  In other words, do most people expect privacy in that use of technology to communicate, or do they assume it is equivalent to talking in an open office where anyone from the public can walk by? The court made clear a government search was not reasonable if not “justified at its inception” or “excessively intrusive” or “not reasonably related to the objectives of the search.” 

Put simply, the use of a government server, like the use of an employer’s server, does not control the privilege or privacy analysis. Instead, courts typically employ a four-factor test, that tends to be very fact-intensive, email-specific, and individual-specific. (In re Reserve Fund Securities and Derivative Litigation, 275 F.R.D. 154 (S.D.N.Y. 2011). First, whether the government or company maintains a policy banning personal use. Second, whether the government or employer monitors the use of the email. Third, whether third parties have a right of access to the emails beyond technical audits and maintenance. Fourth, whether the government or employer notifies the individual of the limits on privacy in the emails, whether the individual was aware of those policies, the use of those policies, and the monitoring of those policies. It boils down to whether a person in the individual’s shoes would have had no reasonable expectation of privacy in their email communications.

A fifth factor is relevant in the Fourth Amendment context: whether the government gave an individual notice and the individual had knowledge of the right to refuse to give consent to the future search of their emails. 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.” (Pure Power Boot Camp v. Warrior Fitness Boot Camp, 587 F.Supp.2d 548 (S.D.N.Y. 2008). Hence, a broad waiver was found inadequate to permit a search. (Anobile v. Pellegrino, 303 F.3d 107, 124-25 (2d. Cir. 2002). 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. (City of Ontario, Cal. V. Quon, 560 U.S. 746 (2010).) As the court reiterated, “individuals do not lose Fourth Amendment rights” merely because they use government-provided servers, offices, or equipment. (O’Connor v. Ortega, 480 U.S. 709 (1987).

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. Leventhal v. Knapek, 266 F.3d 64, 74 (2d. Cir. 2001). Attorney-client privilege is broader. As courts have held, emails between government employees remained privileged even though sent over government email servers. (In re County of Erie, 473 F.3d 413 (2d Cir. 2007). Courts held an ex-employee could assert attorney-client privilege against use of such emails by his company even though emails were located on employer’s computer and employer gave employee notice any documents stored on computer not protected. (Curto v. Medical World Communications (E.D. N.Y. 2006).

The Mueller search runs afoul of many of these established court precedents and Fourth Amendment privacy and privilege principles. First, it appears Mueller searched and seized every email, without any kind of categorical or keyword search. This is exactly the kind of search the Supreme Court made clear was not allowed under the Fourth Amendment. This means Mueller can only prevail if he didn’t seize a single email of a single individual that the individual could have any expectation of either personal privacy or attorney client privilege in.

The primary excuses proffered so far for the broad seizure is the faulty assumption the use of a government server waived all privacy and all privilege of every email ever made over that server. As identified above, that has never been the law. The security and efficacy of government-owned servers for transition employees are not intended as a trap for the unwary to forever forfeit their privacy and privilege rights in their communications. Indeed, doing so would undermine use of such communications, and invite Hillary Clinton type bathroom closet email servers for everybody.

Mueller’s problem here is these were not even government employee emails; they were the emails of private individuals stored temporarily on a government server, and publicly declared to be “private materials” as a matter of custom, practice and the public policy of the National Archives. As Professor Jonathan Turley identifies, the National Archives recognize transition email records “are not federal or presidential records, but considered private materials.” 

The only “notice” evidence otherwise given publicly is that an agreement between the GSA and the transition team identified the possibility of technical and maintenance audits, with some claiming this as a “waiver” of all privacy and privilege rights in the emails forever. Here again, the law does not support such a claim; even cases with much more specific notices and much less invasive searches, found privacy and privilege objections persisted. So far, a striking lack of arguments and evidence has been mounted for claiming every single email lacked any privacy or privilege.

It appears to me, Mueller deliberately skipped the court, the grand jury, and the government-imposed limits on investigative inquiries into worker conduct under Supreme Court precedent; he might have done so because he wanted a tactical edge, and was walling to ignore the Fourth Amendment restrictions on him to do so. Mueller may come to regret his choice.

Robert Barnes is a California-based trial attorney whose practice focuses on Constitutional, criminal and civil rights law. You can follow him at @Barnes_Law.

Chicago Politician Requests Child-raping UN Troops ... in America

The New American
December 17, 2017

 Two Belgian UN ‘peacekeepers’ cheerfully “roast” a Somali boy over a fire, during a ‘humanitarian mission’ in Somalia in 1993

Under the guise of stopping “gun violence” and “genocide,” a fringe County Commissioner in Cook County, Illinois, went to New York City to request that the United Nations deploy “peacekeeping” troops in Chicago. Seriously. These would be the same ruthless soldiers who have come under fire around the world for systemic rape of children, spreading deadly diseases, murdering unarmed protesters, overthrowing elected leaders, waging war on Africans who did not want to live under a Soviet-backed dictator, and countless other atrocities — especially atrocities targeting black people, and always perpetrated with impunity.

Of course, the dictators club known as the UN has no legal power to deploy its scandal-plagued forces in America, and most Americans, armed with hundreds of millions of weapons, would be unlikely to accept such an absurdity. But the fact that such a ludicrous request would even be contemplated, particularly by an elected official, highlights a number of major problems that threaten liberty and the nation itself. At the top of the list of those problems is the sort of dangerous ignorance of some voters and their politicians that would consider inviting child-raping foreign troops — many of them loyal to mass-murdering Communist and Islamic dictators — on to American soil to keep the peace.

In a tacit acknowledgment that he is incapable of doing the job voters elected him to do — and perhaps an indication that he believes his constituents are incapable of governing themselves — Cook County Commissioner Richard Boykin began calling for UN troops in Chicago this week. “I’m hoping to appeal to the UN to actually come to Chicago and meet with victims of violence, and maybe even possibly help out in terms of peacekeeping efforts, because I think it’s so critical for us to make sure that these neighborhoods are safe,” Boykin was quoted as saying while waiting for his flight to New York on Thursday.

Boykin, who has been living off taxpayer largess since he was a child and appears to have been employed by government in some capacity for virtually his entire career, claimed “leaders” in Chicago and Cook County had “failed” to protect their communities from violent crime. And so, since local officials seem to be incapable of providing even basic services despite some of the highest taxes in America, the far-left activist believes the UN — an organization dominated by oppressive governments, many of which murder and torture their own subjects with impunity — could do a better job providing security. That speaks volumes about Boykin and those who elected him.  

“There is a quiet genocide taking place in too many of our communities,” Boykin said, without noting that the UN and Planned Parenthood have for generations displayed a passion for reducing the number of black people in the world. “Eighty percent of those who are being killed by gun violence are African American, and often killed at the hands of another African American. So we must protect these population groups, and that’s what the United Nations does. They’re a peacekeeping force. They know all about keeping the peace, and so we’re hopeful that they’ll hear our appeal.”

In reality, the UN's “peacekeeping” schemes have resulted in the widespread rape and killing of black people all over the world by UN forces. The UN's first major “peace” mission, for example, involved bombing and slaughtering civilians in Katanga, who had declared independence to avoid living under a barbarous Soviet-backed dictator, until they were brutally massacred into submission. The horrifying ordeal featured UN war planes bombing hospitals, UN troops bayoneting young children, and a wide range of other well-documented atrocities perpetrated against civilians. A documentary about it can be seen here.  

Unfortunately, since then, the UN's “peacekeeping” track-record has not improved. In a UN-occupied town in the Ivory Coast, for example, a recent survey by Save the Children revealed that eight out of 10 underage girls admitted to being regularly raped and sexually abused by UN troops. The elected, Christian president of that nation was later overthrown by savage UN-backed jihadists who butchered thousands of innocent Christians with machetes to install a totalitarian Muslim central banker — and all that after the Ivorian Supreme Court ruled that the Christian won the election.

The UN atrocities and brutality have also been documented in Haiti, Mali, Central African Republic (CAR), Congo, Somalia, and virtually every other country occupied by UN troops. Estimates suggest there have been some 60,000 victims of rape and sexual abuse by UN officials over the last decade, based on the UN's own figures. Adding insult to injury, thanks to diplomatic immunity, almost none of the perpetrators have ever been punished. Instead, the UN has developed a sordid reputation for terrorizing the whistleblowers who try to stop the pedophilia, rape, and abuse.

For perspective, a look at the UN's brutal occupation of Haiti shows what it might be like to have UN peacekeepers in Chicago — murder of unarmed civilian protesters, UN-spread diseases killing thousands and sickening hundreds of thousands, the kidnapping of children as young as eight for child sex rings run by deranged UN officers, and more. All of this has been thoroughly documented. Without question, many other crimes perpetreated by UN forces remain hidden, for now.      

Boykin, though, seems oblivious to the reality, saying “every avenue,” including UN peacekeepers in America, must be explored.  “They’ve been able to help in places like Africa and abroad, where they’ve sent troops in and sent forces in to help protect minority and vulnerable populations, and so quite frankly I think the same can be said for here in Chicago,” he said, sparking instant national ridicule after the news was featured on the Drudge Report. “I’m talking about physical security. I’m also talking about maybe suggestions for what we can do in Chicago to help protect our minority populations. We’re being, again, decimated by the violence that we see here in Chicago. I mean this is really a genocide, and we have to do something to stop it.”

Ironically, the UN regularly praises and promotes genocidal dictators responsible for exterminating black minority groups. Just recently, the UN World Health Organization tried to install mass-murdering Marxist tyrant Robert Mugabe as a “goodwill ambassador,” despite his genocidal campaign to exterminate Ndebele people in the Southern region of the country using mass murder and terror. Before that, the UN almost appointed genocidal Sudanese dictator Omar Bashir, an Arab famous for trying to exterminate local black populations, on its discredited, dictator-dominated UN “Human Rights Council.”

As Boykin admitted, though, the overwhelming majority of those being murdered in Chicago are being murdered by fellow black people, typically in gang warfare. As such, the violence in Chicago — which is very mild, by international standards — does not come close to meeting the UN's definition of genocide. According to the UN, genocide involves “acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group.” It is true that the UN and Planned Parenthood founder Margaret Sanger wanted to reduce the number of black people, by their own admission. Indeed, UN agencies have even been caught involuntarily sterilizing African women under the guise of a “vaccine” program. But the UN's publicly stated belief that there are too many Africans on the planet is not relevant to crime in Chicago.

Boykin blasted Chicago Mayor Rahm Emmanuel — Obama's infamous minion who famously declared that “you never want a serious crisis to go to waste” — for touting the fact that the number of people shot and killed in the city is down. “Let me tell you, we’ve had over 600 people killed by gun violence already this year alone,” Boykin said. “That is a huge number.” In his community of Austin, there were 450 people shot, include 80 killed, just this year, Boykin added. “And so we have to do more to protect these communities, and that’s what we’re going to do,” he said without offering serious solutions.

Unlike most Americans, who appreciate self-governance and seek to deal with local problems at the local level, Boykin implied that he and his colleagues in local government were not capable of dealing with the problems plaguing their local communities. “If we can’t get it done here with the leaders of the city, the state, and the county working together to utilize their budgets to help protect these communities, then I have to appeal to a higher authority, and a higher force,” Boykin said, implying that the dictators club, which according to its own charter has no authority over the internal affairs of member states, was somehow a “higher authority” than even the federal government established by We The People.

Boykin also appears to be ignorant of how the United States measures up against the rest of the world. In Chicago, which has among the strictest gun-control regimes in America, there are around 15 or 16 murders per 100,000. That is very high, of course, especially when compared to the less than 5 murders per 100,000 in the rest of the United States, where guns are much more accessible and far less regulated than in Chicago. And so, by comparing it to other U.S. communities, Chicago does seem to be completely out of control.

But in comparison with other nations ruled by the UN member states that would be sending troops, both Chicago and the United States seem like an oasis of peace. El Salvador, for example, which has strict gun control, has more than 80 murders per 100,000. In 2015, the nation had more than 100 murders per 100,000 people. In Venezuela, meanwhile, where the UN helped the socialist dictator disarm the law-abiding civilian population, there has been an explosion of violence, now up to about 90 murders per 100,000 — some 500 percent higher than the murder rate of Chicago. Honduras and other nations in the hemisphere have similar numbers. South Africa, that continent's most developed nation, has an average murder rate that is almost ten times higher than the United States.   

If Boykin feels incapable of dealing with the local problems he was elected to deal with, rather than advocating for potentially hostile, child-raping UN troops in America, he should resign from his lucrative taxpayer-funded post. But if he is serious about dealing with local problems, a good starting point would be to totally re-structure the local education system to, at the very least, teach children to read and quit dumbing down and indoctrinating children in those communities. Instead of demonizing and handcuffing police, which Boykin often does, allowing cops to do their job would be helpful. Promoting morality and family would help matters, too. It seems, though, that Boykin is not really interested in solving local issues. His constituents should take note.

Google moves to censor ISIS /NYC Attack connections

SIC SEMPER TYRANNIS !!! News
Mark matheny
December 11, 2017

GOOGLE MOVES TO CENSOR ISIS, ISLAM CONNECTION AFTER NEW YORK TERROR ATTACK

Infowars News
December 11, 2017

Google’s response to the attempted terror attack in New York this morning, widely reported to have been carried out by a Bangladeshi ISIS supporter, was to suggest it would censor information related to the suspect’s connection to the Islamic State or the religion of Islam.

The failed attack happened at around 7:20am in an underpass at the Port Authority terminal near Times Square when the terrorist failed to detonate a pipe bomb correctly.

Within a short period of time, reports began to emerge that the suspect was a Bangladeshi ISIS supporter who had been living in the U.S. for seven years.

However, when Twitter users, including myself and the Daily Caller, began to share this information, CNET’s Alfred Ng tweeted, “None of this has been confirmed, but here it is on Google’s top results.”

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Pentagon To Undergo First Ever Audit After Decades Of Sloppy Accounting And Missing Trillions

Zero Hedge
December 10, 2017

Secretary of Defense Jim Mattis speaks with DoD Comptroller David L. Norquist, June 15, 2017

After decades of waste, overpayments, trillions of missing or improperly accounted for dollars, and most recently losing track of 44,000 US soldiers, the Pentagon is about to undergo its first audit in history conducted by 2,400 auditors from independent public accounting firms to conduct reviews across the Army, Navy, Air Force and more - followed by annual audits going forward. 

The announcement follows a May commitment by Pentagon comptroller David Norquist, who previously served as the CFO at the Department of Homeland Security when the agency performed its audit. "Starting an audit is a matter of driving change inside a bureaucracy that may resist it," Norquist told members of the Armed Services Committee at the time when pressed over whether or not he could get the job done at the DHS. 

According to the DoD release: 

The audit is massive. It will examine every aspect of the department from personnel to real property to weapons to supplies to bases. Some 2,400 auditors will fan out across the department to conduct it, Pentagon officials said.

"It is important that the Congress and the American people have confidence in DoD's management of every taxpayer dollar," Norquist said. -defense.gov

The Pentagon is no stranger to criticism over serious waste and purposefully sloppy accounting.  A DoD Inspector General's report from 2016 - which appears to be unavailable on the DoD website (but fortunately WAS archived)- found that in 2015 alone a staggering $6.5 trillion in funds was unaccounted for out of the Army's budget, with $2.8 trillion in "wrongful adjustments" occurring in just one quarter.

In 2015, the Pentagon denied trying to shelve a study detailing $125 billion in waste created by a bloated employee counts for noncombat related work such as human resources, finance, health care management and property management. The report concluded that $125 billion could be saved by making those operations more efficient. 

On September 10th, 2001, Secretary of Defense Donald Rumsfeld announced that "According to some estimates we cannot track $2.3 trillion in transactions," after a Pentagon whistleblower set off a probe. A day later, the September 11th attacks happened and the accounting scandal was quickly forgotten.

And twenty years before that, DoD analyst Franklin C. Spinney exposed what he called "accounting games," saying "Those numbers are pie in the sky. The books are cooked routinely year after year." In a 2002 testimony before the House Committee on Government Reform, Spinney laid out the DoD's accounting quagmire of un-auditable books and budget projections which don't match reality. 

Franklin Spinney, 2002

Finally, those of us old enough to remember the 80's, let's not forget the bombshell report on overpayments the Pentagon made for simple items, such as $37 screws, $7,622 coffee makers, and $640 toilet seats which Sen. William Roth Jr (R-DE) was able to whittle down to $200. 

The announcement of the audit comes amid a looming government shutdown battle which was given a two-week extension last week until December 22. If this occurs, military personnel would report to work as usual, but the DoD would not pay them until the shutdown ends. 

 "I cannot emphasize too much how destructive a shutdown is," Norquist said. "We've talked before about the importance of maintenance on weapons systems and others, but if it's not an excepted activity, there'll be work stoppage on many of those maintenance functions."

With both parties standing to lose more than gain from a shutdown, that is unlikely to happen. Meanwhile, with decades of lost confidence in the Pentagon's accounting practices, we eagerly await the results of this "massive" audit to see exactly how much dirt - and where -previous administrations have swept under the rug.

TRUMP'S JERUSALEM DECLARATION SPARKS TALK OF 3RD TEMPLE

World Net Daily
December 10, 2017

President Donald Trump addressing the United Nations Sept. 19, 2017 (Video screenshot)

WASHINGTON – While Muslims jeer, Israelis cheer President Trump’s Jerusalem declaration, prompting Jewish religious activists to suggest building the Third Temple is closer to reality than ever before.

“What he did … was an enormous step in bringing the Temple,” said Asaf Fried, official spokesman for the United Temple Movement, an association of organizations working towards making the Third Temple a reality.

He added, “This necessarily had to come from a non-Jew in order to bring them into the process, so they will be able to take their part in the Temple.”

Fried sees Trump’s role similar to the one played by Cyrus, the Persian king who ended the Babylonian exile and helped build the Second Jewish Temple.

“There have been amazing advances towards bringing the Temple this year. It was clear that Trump was part of that process, guided by Hashem (God),” Fried declared.

Thank President Trump for declaring Jerusalem to be the capital of Israel and all his accomplishments during his first year in office. Send him a FREE card of your choice. Go to ThankTrump.us

He is hardly alone in his jubilation about the possibilities of rebuilding a Temple last destroyed in A.D. 70 – 1,948 years ago.

“The prophets’ words of prophecy are coming forth from the Bible and becoming facts right before our eyes,” said Likud lawmaker and prominent Temple Mount movement figure Yehuda Glick.

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Americans Give Trump Higher Grades on Economy Than Overall

Wall Street Journal
December 10, 2017

Although President Donald Trump’s overall approval ratings have dropped to the lowest point of his presidency, he is getting significantly higher marks in one important area: his handling of the economy.

With the U.S. unemployment rate holding at a 17-year low, hiring strong and the stock market hitting regular records, Mr. Trump is getting stronger reviews from the public on the economy, with 42% approving and 37% disapproving, according to the most recent Wall Street Journal/NBC News survey, conducted in late October.

That stands in stark contrast to his overall approval rating, which dropped last week to 32%, the lowest point of his 11-month presidency, according to a Pew Research Center poll. His disapproval rating of 68% in the same survey was also a new high.

The WSJ poll showed the president with a 38% approval rating, his lowest to date in this poll, while 58% disapproved of his overall performance.

A Gallup survey from November showed the president’s approval rating for his handling of the economy at 45%, eight points ahead of his overall approval number, which sagged to 37%.

“He’s a political contortionist in that he has high economic numbers and very low personal approval ratings. That’s almost impossible to do,” said Peter Hart, a veteran Democratic pollster.

On Friday, the White House celebrated the December jobs report that showed the economy gaining 228,000 jobs in November.

“President Trump’s bold economic vision continues to pay off,” White House Press Secretary Sarah Huckabee Sanders said in a statement that also referenced an increase in manufacturing jobs since the president took office. “As we continue to unleash the American economy from unnecessary regulation and taxes, we look forward to seeing more reports like this, showing a healthy and thriving jobs market for the American people.”

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