KORY LANGHOFER
Managing Attorney

December 16, 2017
The Hon. Ron Johnson, Chairman
The Hon. Claire McCaskill, Ranking Member
U.S. Senate Committee on Homeland Security &
Governmental Affairs
340 Dirksen Senate Office Building
Washington, D.C. 20510

Re:

The Hon. Trey Gowdy, Chairman
The Hon. Elijah Cummings, Ranking Member
U.S. House Committee on Oversight &
Government Reform
2157 Rayburn House Office Building
Washington, D.C. 20515

Unauthorized Review of Private, Privileged Materials by the Special Counsel’s Office

Dear Senators and Representatives:
I write on behalf of Trump for America, Inc. (“TFA”), also known as the Presidential Transition Team
(“PTT”), for the following purposes:
1.

To inform the Committees of unlawful conduct that undermines the Presidential Transition Act
of 1963, as amended, and will impair the ability of future presidential transition teams to
candidly discuss policy and internal matters that benefit the country as a whole. More
specifically, we write to inform you that (a) career staff at the General Services Administration
(“GSA”) have unlawfully produced TFA’s private materials, including privileged
communications, to the Special Counsel’s Office; and (b) although the Special Counsel’s Office
was aware that the GSA did not own or control the records in question, the Special Counsel’s
Office has extensively used the materials in question, including portions that are susceptible to
claims of privilege, and without notifying TFA or taking customary precautions to protect TFA’s
rights and privileges; and

2.

To request that Congress act immediately to protect future presidential transitions from having
their private records misappropriated by government agencies, particularly in the context of
sensitive investigations intersecting with political motives.

I.

TFA’s Nature and Function

The Presidential Transition Act of 1963, as amended, contemplates the creation and operation of a private
nonprofit organization to facilitate presidential transitions. See 3 U.S.C. § 102 note 2(h)(3)(A). For the 2016
presidential transition, TFA was the nonprofit organization that facilitated the orderly transition of executive
authority from President Barack Obama to President Donald J. Trump. Its activities were funded partially
through congressional appropriations and partially through dollar-limited private contributions. See id. note
6(c), 7(a). TFA is a private and independent nonprofit organization; it is not controlled by and does not
share employees with the White House, the GSA, or other federal agencies. In fact, most PTT personnel
are volunteers, acting in their personal capacity, to advance TFA’s nonprofit mission of peacefully and
efficiently transferring executive power.
The GSA played a statutorily defined role in supporting TFA and the 2016 transition. Specifically, the GSA
“provided [to TFA] . . . [s]uitable office space appropriately equipped with furniture, furnishings, office

 

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 Letter to Congressional Committees
December 16, 2017

machines and equipment, and office supplies.” Id. note 3(a)(1). The GSA also hosted email services for
TFA, and is statutorily required to “ensure that any computers or communications services provided . . . are
secure.” Id. note 3(h)(2)(B)(ii).
Presidential transitions occupy a unique legal space. Although they undertake executive or quasi-executive
functions and have certain rights associated with executive authority, they are not federal agencies. The
authority supporting this conclusion includes the following:
o The Presidential Transition Act of 1963, as amended, provides that a presidential transition must be
organized as a “separate fund” and operated as a private social welfare corporation pursuant to
section 501(c)(4) of the Internal Revenue Code. See 3 U.S.C. § 2 note § 3(h)(3)(A). If presidential
transition teams were governmental agencies, this requirement would be unnecessary. See generally
Internal
Revenue
Service,
1990
Exempt
Organization
CPE,
available
at
https://www.irs.gov/pub/irs-tege/eotopice90.pdf (discussing tax exemption for governmental
entities).
o The U.S. Department of Justice has for nearly 30 years maintained that presidential transition
entities are not “agencies” within the meaning of the Freedom of Information Act. This
interpretation was most recently affirmed during the Obama Administration. See U.S. Dep’t of
Justice, FOIA Counselor: Transition Team FOIA Issues, FOIA Update, Vol. IX, No. 4 (Jan. 1, 1988, rev.
Sept. 1, 2016), available at https://www.justice.gov/oip/foia-update-foia-counselor-transition-teamfoia-issues.
o The National Archives recently advised that “[t]he materials that [presidential transition team]
members create or receive are not Federal or Presidential records, but are considered private
materials.” Again, this advice was promulgated during the Obama Administration. See National
Archives and Records Administration Bulletin A.C. 09.2017, Memorandum from Laurence Brewer, Chief
Records Officer for the U.S. Government, to Federal Agency Records Officers, Nov. 16, 2016, available at
https://www.archives.gov/records-mgmt/memos/ac09-2017.
o The Presidential Transition Act contemplates that the White House, the GSA, and other federal
agencies will enter, and the GSA for many years has entered, into arms-length contracts with eligible
presidential candidates to assist the presidential transition process. See, e.g., Memorandum of
Understanding between the GSA and Hillary Clinton, Aug. 5, 2016; Memorandum of Understanding
between the GSA and Donald J. Trump, Aug. 1, 2016 (“MOU”); Memorandum of Understanding
between the GSA and the Romney Readiness Project, Sept. 17, 2012; Memorandum of
Understanding between the Obama-Biden Transition Project and the GSA, Nov. 5, 2008. If
presidential transition teams were federal agencies, such contracts would be unnecessary.
o The MOU provided that the GSA would delete “all data on [computing] devices” used by the PTT.
See MOU ¶ pp. 3, 10. This is both (a) is consistent with memoranda of understanding that the GSA
executed with Hillary Clinton and Mitt Romney and (b) would be unlawful if presidential transition
records were public records.
o The agreement between the Obama White House and TFA expressly stated that the parties intended
to “protect the confidentiality of transition information made available to the Government.” See
Memorandum of Understanding Regarding Transition Procedures, Identification, of Transition
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 Letter to Congressional Committees
December 16, 2017

Contacts, and Access to Non-Public Government and Transition Information ¶ 3, Nov. 8, 2016.
Such a confidentiality provision would be unlawful if TFA were a government agency.
o TFA has always secured the central indicia of organizational ownership and control, including
personnel decisions, the execution of contracts with third parties without federal procurement
regulations, and, crucially, the generation and maintenance of internal documents and records.
In the 54 years since Congress first codified a statutory scheme governing the transition process, the
fundamental structure and character of presidential transition teams have remained unchanged: They are
private organizations controlled and managed by the President-Elects and their authorized designees, not by
outgoing Presidents, their executive agencies, or other governmental entities. Indeed, if transition teams
were part of the federal government, which until Inauguration Day is led by the outgoing President, it would
subvert the very purpose of a transition team. Communications infrastructure and other platforms supplied
by the GSA to a presidential transition team (e.g., email accounts) are solely for the convenience and
assistance of the transition team; they plainly are not a mechanism for a federal agency to commandeer the
confidential documents of a private, nonprofit organization.
For these reasons, during the mandatory onboarding orientation for all PTT personnel, TFA informed new
PTT staffers and volunteers that PTT emails are properly considered private records.
II.

Improper Disclosure, Review, and Use of PTT Materials

After Inauguration Day on January 20, 2017, TFA wound down the bulk of its activities, vacated the
premises provided by the GSA, and returned to the GSA the computer and telephone equipment that TFA
had used during the transition period. Shortly thereafter, the GSA asked TFA for direction on the
disposition of PTT data. TFA directed the GSA to handle PTT data in a manner consistent with the MOU
and the reported disposition of data from President Obama’s presidential transition in 2008; computing
devices were to be restored to original settings and reissued to federal personnel and, to the extent that PTT
records were not required for the winding down of TFA’s affairs, the PTT email archives were no longer to
be preserved.
Approximately two months later, TFA became aware of certain requests concerning PTT records. TFA
promptly instructed the GSA, as the custodian of certain TFA records including PTT emails hosted on GSA
servers, and others to preserve PTT records. Because of TFA’s prompt reaction, all PTT emails have been
preserved.
In order to comply with congressional document production requests, TFA ordered from the GSA
electronic copies of all PTT emails and other data. Career GSA staff initially expressed concern that
providing copies of PTT emails to TFA might violate a document preservation request that the GSA had
received from the Special Counsel’s Office. This issue was resolved decisively on June 15, 2017 after a
series of emails and telephone calls between TFA’s legal counsel and Richard Beckler and Lenny
Loewentritt, the newly appointed General Counsel for the GSA and the career Deputy General Counsel for
the GSA, respectively. After discussion and consideration of the issue, Mr. Beckler acknowledged
unequivocally to TFA’s legal counsel, in the presence of Mr. Loewentritt, that TFA owned and controlled
the PTT emails and data pursuant to the Presidential Transition Act, and that the GSA had no right to
access or control the records but was simply serving as TFA’s records custodian. Mr. Beckler assured legal
counsel for TFA, again in the presence of Mr. Loewentritt, that any requests for the production of PTT
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 Letter to Congressional Committees
December 16, 2017

records would therefore be routed to legal counsel for TFA. In the meantime, Mr. Beckler agreed to
maintain all computer equipment in a secure, locked space within GSA facilities. There are multiple
surviving witnesses to this conversation, including me. Additionally, we understand that the following day,
June 16, 2017, Mr. Beckler personally informed the Special Counsel’s Office that PTT records are not
owned or controlled by the GSA, and that the Special Counsel’s Office should communicate with TFA if it
desired to obtain PTT records.
It is our understanding that Mr. Beckler was hospitalized and incapacitated in August 2017.
Notwithstanding Mr. Beckler’s June 16, 2017 instruction to the Special Counsel’s Office concerning the
ownership and control of PTT records, the Special Counsel’s Office, through the Federal Bureau of
Investigation (“FBI”), sent to the GSA two requests for the production of PTT materials while Mr. Beckler
was hospitalized and unable to supervise legal matters for the GSA. Specifically, on August 23, 2017, the
FBI sent a letter (i.e., not a subpoena) to career GSA staff requesting copies of the emails, laptops, cell
phones, and other materials associated with nine PTT members responsible for national security and policy
matters. On August 30, 2017, the FBI sent a letter (again, not a subpoena) to career GSA staff requesting
such materials for four additional senior PTT members.
Career GSA staff, working with Mr. Loewentritt and at the direction of the FBI, immediately produced all
the materials requested by the Special Counsel’s Office – without notifying TFA or filtering or redacting
privileged material. The materials produced by the GSA to the Special Counsel’s Office therefore included
materials protected by the attorney-client privilege, the deliberative process privilege, and the presidential
communications privilege. It is our understanding that Mr. Beckler passed away without returning to the
GSA, and that career GSA staff (including Mr. Loewentritt) never consulted with or informed Mr. Beckler
or his successor of the unauthorized production of PTT materials.
The unauthorized production of PTT materials by career GSA staff violates (a) the GSA’s duties to TFA
pursuant to the GSA’s previous acknowledgement concerning TFA’s rightful ownership and control of PTT
materials; (b) the statute requiring the GSA to “ensure that any computers or communications services
provided to an eligible candidate . . . are secure,” 3 U.S.C. § 102 note 3(h)(2)(B)(ii); and (c) the Fourth
Amendment’s prohibition on a government actor (e.g., Mr. Loewentritt), or a private actor working at the
request of a government official, failing to obtain a warrant for the search of seizure of private property in
which the owner has a reasonable expectation of privacy, see Coolidge v. New Hampshire, 403 U.S. 443, 489
(1971).
We understand that the Special Counsel’s Office has subsequently made extensive use of the materials it
obtained from the GSA, including materials that are susceptible to privilege claims. Additionally, certain
portions of the PTT materials the Special Counsel’s Office obtained from the GSA, including materials that
are susceptible to privilege claims, have been leaked to the press by unknown persons. Moreover, the leaked
records have been provided to the press without important context and in a manner that appears calculated
to inflict maximum reputational damage on the PTT and its personnel, without the inclusion of records
showing that PTT personnel acted properly – which in turn forces TFA to make an impossible choice
between (a) protecting its legal privileges by keeping its records confidential and (b) waiving its privileges by
publicly releasing records that counteract the selective leaks and misguided news reports. In short, since the
GSA improperly provided them to the Special Counsel’s Office, the PTT’s privileged materials have not
only been reviewed privately by the Special Counsel’s Office without notification to TFA – they have also
been misused publicly.

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 Letter to Congressional Committees
December 16, 2017

We discovered the unauthorized disclosures by the GSA on December 12 and 13, 2017. When we learned
that the Special Counsel’s Office had received certain laptops and cell phones containing privileged
materials, we initially raised our concerns with Brandon Van Grack in the Special Counsel’s Office on
December 12, 2017. Mr. Van Grack confirmed that the Special Counsel’s Office had obtained certain
laptops, cell phones, and at least one iPad from the GSA – but he assured us that the Special Counsel’s
investigation did not recover any emails or other relevant data from that hardware. During this exchange,
Mr. Van Grack failed to disclose the critical fact that undercut the importance of his representations,
namely, that the Special Counsel’s Office had simultaneously received from the GSA tens of thousands of
emails, including a very significant volume of privileged material, and that the Special Counsel’s Office was
actively using those materials without any notice to TFA.1 Mr. Van Grack also declined to inform us of the
identities of the 13 individuals whose materials were at issue. We followed up with Mr. Van Grack the next
day after learning of the unauthorized disclosure of PTT emails to ask what procedures, if any, had been
implemented to protect privileged PTT communications from unauthorized and improper review. Mr. Van
Grack declined to respond at the time, but contacted us on December 15, 2017 to inform us that the Special
Counsel’s Office had, in fact, failed to use an “ethical wall” or “taint team” and instead simply reviewed the
privileged communications contained in the PTT materials. Mr. Van Grack also acknowledged on the
December 12, 2017 telephone call that, even before we contacted him, the Special Counsel’s Office had
been aware of the importance and sensitivity of the privilege issues that we raised.
III.

Statutory Amendments Are Necessary to Protect Future Presidential Transitions

The GSA’s malfeasance in this matter necessitates a legislative response. As described above, career GSA
staff subverted a congressional directive to support and assist presidential transitions with “secure”
communications into a license to seize and misappropriate privileged documents and records. Whether
born of a gross misunderstanding of the Presidential Transition Act or a deliberate attempt to violate the
rights of TFA, the actions of career GSA staff underscore the need for immediate statutory amendments to
protect future presidential transitions from bureaucratic arrogations and political interference. To this end,
we respectfully propose two statutory amendments.
1.

Timely Notice to Presidential Transition Teams of Document Production Requests

Although the Presidential Transition Act does not abridge – and indeed, fully preserves – control of internal
documents and records by transition entities and their private boards of directors, the GSA’s conduct
underscores the need for more robust statutory protections. In furtherance of Congress’ clear intent that
the GSA’s role is to support and assist – not usurp – transition functions, the Presidential Transition Act
should fortify safeguards for presidential documents and records that may be stored in GSA computer
systems. Specifically, Congress should provide that if the GSA receives any request or demand for a
transition entity’s documents – including but not limited to subpoenas or other legal process issued by
courts or law enforcement agencies – it must provide to the presidential transition team notice and an
opportunity to respond, object, or intervene before it reviews or produces any such documents or materials.
                                                        
1
On two other occasions after the GSA improperly provided PTT records to the Special Counsel’s Office,
legal counsel for TFA had stated to the Special Counsel’s Office that the Special Counsel’s Office had never
requested or received PTT records. On both occasions, as on the December 12, 2017 telephone call with
Mr. Van Grack, the Special Counsel’s Office failed to correct the record or disclose that, at the time of those
discussions, the Special Counsel’s Office was already in possession of and had accessed a significant volume
of privileged PTT materials.
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 Letter to Congressional Committees
December 16, 2017

2.

Limitations on the Government’s Access to Potentially Privileged Materials

As discussed above, the GSA’s unlawful production of TFA’s internal records was exacerbated by the
Special Counsel’s Office failure to preserve and respect the legal privileges that attach to a large number of
those documents. More generally, however, the GSA’s and the Special Counsel’s Office’s misconduct in
this matter demonstrates why investigators and government attorneys, who in many cases are not entirely
neutral, should not be trusted to decide without proper oversight which records belonging to private parties
are privileged.
In theory, investigators and attorneys can establish “ethical walls” or “taint teams” to review potentially
privileged materials, and then pass only non-privileged materials on to the investigators and attorneys who
are primarily responsible for a case. This process ostensibly prevents the investigators and attorneys
primarily responsible for enforcement decisions from basing their decisions on private, privileged materials.
In practice, however, this procedure is fraught with the potential for both intentional misconduct and
innocent mistakes – to the severe detriment of the individuals or entities whose privileged communications
fall into the hands of adverse government officials or witnesses. See generally United States v. North, 920 F.2d
940, 942 (D.C. Cir. 1990) (noting that witnesses’ exposure to inadmissible evidence can impermissibly “taint
their trial testimony irrespective of the prosecution’s role in the exposure”). For this reason, “[f]ederal
courts have taken a skeptical view of the government’s use of ‘taint teams,’” United States v. SDI Future
Health, Inc., 464 F. Supp. 2d 1027, 1037 (D. Nev. 2006), and have held that “the government’s affirmative
decision to invoke these [taint team] procedures constitutes a per se intentional intrusion” into relationships
and communications protected by legal privileges, see United States v. Neill, 952 F. Supp. 834, 840–41 (D.D.C.
1997). Because it is “logical to suppose that taint teams pose a serious risk to holders of privilege, and this
supposition is substantiated by past experience,” In re Grand Jury Subpoenas, 454 F.3d 511, 523 (6th Cir. 2006),
constitutional and policy considerations have prompted many courts to significantly curtail, and at times
outright reject, their use.
These concerns are especially acute in investigations that implicate legislative, executive, or judicial functions
and the attendant privileges that may attach to them. See United States v. Rayburn House Office Buildings, Room
2113, 497 F.3d 654 (D.C. Cir. 2007) (holding that a taint team was inappropriate and violated a
congressman’s right to independently review and assert legislative privilege over documents). While
transition teams and their members are not immune from the lawful search and seizure of their documents
and records, it is vital that these investigations be conducted within the parameters of procedural safeguards
that preserve legitimate privileges – many of which have a constitutional provenance. See id. at 661
(emphasizing the need “to distinguish between the lawfulness of searching a congressional office pursuant
to a search warrant and the lawfulness of the manner in which the search is executed in view of the protections
afforded against compelled disclosure of legislative materials” (emphasis added)).
And as this matter demonstrates, entrusting the implementation of ethical walls and taint teams to
investigators and attorneys who may not be entirely neutral, without proper oversight, can result in their
failure to implement any process, however flawed, to protect the privileges of private parties. Such failures
not only harm the parties whose information is improperly obtained and reviewed, but also the investigators
themselves, whose investigation is tainted by the use of privileged materials.

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 Letter to Congressional Committees
December 16, 2017

To this end, Congress should provide that, unless exigencies of public safety or national security require
otherwise, any federal official or agency in possession of a third party’s documents or information (through
whatever means) must provide the rightful owner an opportunity to identify and assert privilege, subject to
customary judicial oversight, over such materials before the federal official or agency (or any of its agents or
designees) may view or access their contents. Such legislative protections are particularly crucial in the
context of investigations focusing on political activities or the discharge of legislative, executive, or judicial
responsibilities. As recent events have unfortunately illustrated, such inquiries are especially vulnerable to
the taint of partisan agendas, political bias, and other malign machinations.
***
We hope this letter is useful in discharging your oversight responsibilities, ensuring the integrity of the
Special Counsel’s investigation, and crafting appropriate legislation.
Please do not hesitate to contact TFA should you have any questions or require additional information.
Respectfully,
/s/ Kory Langhofer
Kory Langhofer
Counsel to Trump for America, Inc.
Cc:

Ken Nahigian, TFA Trustee and Executive Director
Charles Gantt, TFA Trustee and Chief Financial Officer

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