According to published reports from the Washington Post, Special Counsel Robert Mueller engaged in a mass seizure of all emails of the Trump transition team without a warrant or a subpoena and is there for in violation of the fourth amendment says Law and Crime.
Robert Barnes is a California-based trial attorney and he says the real question is, “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.
Essentially, what needs to be answered in this case, is whether or not 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 could possibly hear.
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.”
Barnes says that the use of a government server, like the use of an employer’s server, does not control the privilege or privacy analysis. He says it essentially boils down to “whether a person in the individual’s shoes would have had no reasonable expectation of privacy in their email communications.”
One case that Barnes goes into to prove that Mueller was violating the law is City of Ontario, Cal. V. Quon, 560 U.S. 746 (2010), a Supreme Court case.
Barnes lays out the four factors that go into a four-factor test that shows whether the government can look at a private company’s files or not.
But a fifth factor is relevant when talking about the fourth amendment is that 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 email. Which in this case, Trump and his legal team were not given the proper knowledge to give consent to a search on their email.
“‘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,’ said Barnes.”
According to a practiced attorney what Mueller and his team did was illegal and should be taken to the courts to figure this mess of an investigation out.