Fox’s Napolitano baselessly claims GSA acted unlawfully by not informing Trump transition team of Mueller's request for emails

GSA told Trump officials that it would comply with requests for information from law enforcement

Fox News senior judicial analyst Andrew Napolitano baselessly claimed that the Government Services Administration (GSA) “had a legal obligation to tell” President Donald Trump’s transition team that the agency had handed over emails to the team investigating Russian interference in the 2016 election at the request of special counsel Robert Mueller. Not only is there no indication GSA has a  legal requirement of the sort, but officials at the GSA said they warned Trump officials that anything they created could be turned over to law enforcement.

When discussing on Fox & Friends a (false) claim from Trump’s lawyers that Mueller’s team improperly obtained emails from the presidential transition team by going to the GSA rather than the transition team itself, Napolitano claimed, “The GSA had a legal obligation to tell” Trump’s transition team that it had handed over the emails to the special counsel. Co-host Brian Kilmeade agreed, saying, “I would think so. It seems logical.”

But the GSA did notify the Trump transition team that it would be handing over documents and other materials to law enforcement if asked. BuzzFeed reported that GSA Deputy Counsel Lenny Loewentritt said, “Transition team members were informed that materials ‘would not be held back in any law enforcement’ actions.” Additionally, a memorandum of understanding between the GSA and the transition ream obtained by Crooked Media’s Brian Beutler shows “no provision denoting the documents as being the property of the transition team” and suggests transition members agreed to rules that “include a privacy waiver, which notes that, ‘Users have no expectation of privacy on GSA IT resources since all activities are subject to monitoring.’”

From the December 19 edition of Fox News’ Fox & Friends:

ANDREW NAPOLITANO (FOX NEWS SENIOR JUDICIAL ANALYST): But [special counsel] Bob Mueller and his team did obtain the emails of the transition team. So we’re talking about the three-month period from Election Day until Inauguration Day. How did he get them? Well, he can't issue a subpoena, only a grand jury can. And the grand jury will only issue a subpoena if somebody gives them a reason. So some FBI agent testified under oath before the grand jury as to what they thought was in the emails, why they needed them. The grand jury issues the subpoena. Now the problem arises. So when the subpoena is served on the GSA, Government Services Administration, which is part of the executive branch, which had the records of the transaction.

STEVE DOOCY (CO-HOST): The custodian.

NAPOLITANO: Correct. Donald Trump’s now president when this is happening. The GSA should have said to the transition team, “Hey, the -- it still exists, we have a subpoena from the special prosecutor’s grand jury. We’re going to comply with it in 10 days. If you want to challenge it, here’s a copy. Go to court and challenge it.” They didn't do that. When no challenge came, they complied with it. And so Mueller's people had tens of thousands of emails.

You may say so what? Well, I’ll tell you the significance: Mueller's team interviewed, the FBI agents interviewed, most people in the West Wing who also worked for the transition team. Those people at the time of the interviews undoubtedly did not know that the --

DOOCY: Didn’t know they had the emails.

NAPOLITANO: Correct. The FBI agents who were interviewing them had already read their emails. Remember, it's a crime to lie to the FBI. It is not a crime for the FBI to trick you into lying. Just ask [former national security adviser] Mike Flynn.

DOOCY: A perjury trap.


BRIAN KILMEADE (CO-HOST): Just so you know, they feel as though they were told by a GSA official who now have died that if we need any of this information on the computer equipment that we gave you for the transition, we’ll tell you [INAUDIBLE] to subpoena it. That guy’s dead. So, let's just move on real quick.

NAPOLITANO: The GSA had a legal obligation to tell [the] transition [team].

KILMEADE: I would think so. It seems logical.