Robert Mueller’s special investigation may just be starting, but for President Donald Trump and his aides, it’s already entered one of the most legally treacherous phases.
Now that Trump’s current and former aides and allies officially know a probe exists, they’re responsible for preserving all available information that might be relevant. That’s a task complicated by the rise of auto-delete apps like Confide, Signal and WhatsApp, as well as the move his campaign staffers have made into the White House.
Hanging over them all: any failure to keep track of emails, messages and other records could expose them to criminal charges down the line.
Trump staffers have relied on the latest in smartphone technology to shield their digital activity from hackers as well as leak-obsessed superiors – so much so that White House press secretary Sean Spicer even reprimanded his press shop for using them in February.
But anyone questioned by Mueller’s team may find that just having encrypted apps on their phones–which didn’t exist the last time there was a major Washington investigation of this kind—may raise suspicions that they’re hiding information.
“Technology changes, but the law doesn’t,” said Stanley Brand, an attorney who represented White House press secretary George Stephanopoulos during the probe of the President Bill Clinton’s Whitewater land deals.
Another wrinkle that could cause headaches for Trump staffers: The lack of available materials from the Trump campaign. The Washington Post reported Friday that the Senate Intelligence Committee has already asked Trump’s campaign committee to produce documents—including emails and phone records—related to Russia going back to June 2015.
Unlike the White House, which is subject to federal recordkeeping requirements, campaigns aren’t bound to preserve documents. But staffers may have some emails still backed up on their phones or computers, or documents – including calendars and other records that could wind up being critical for investigators.
Presidential campaigns tend to have short windows for maintaining emails on their private servers. And while they often do keep field plans, budgets and other critical personnel documents for archival or legal purposes, the retention policies for emails frequently mean all messages are automatically deleted within 30 to 90 days unless they’re specifically preserved.
Trump’s campaign, said a former senior aide, didn’t do much in the way of establishing a backup plan to preserve those digital records. “You’d be giving us too much credit,” said the former staffer. “The idea of document retention did not come up. The idea of some formal structure did not come up.”
The White House declined to comment when asked what staff have been told about preserving documents related to the ongoing investigations. In March, the Associated Press reported that White House Counsel Don McGahn instructed White House staff in late February to save all materials that could potentially be relevant for investigations into Russia’s interference in the 2016 election. The AP report noted that the memo also applied to materials belonging to White House staffers who worked on the campaign.
Democrats on the Senate Judiciary Committee publicly demanded in mid-February that the White House, Justice Department and FBI take steps to ensure the retention of all relevant records from the Trump Organization, campaign, transition and administration tied to the Russia case.
Under U.S. criminal law, documents must be preserved once an individual is aware they may become relevant to an investigation, even if there’s no formal notice one has begun.
“It’s not like you can destroy anything until you receive a subpoena,” said Kathleen Clarke, an ethics and law professor at Washington University in St. Louis and an expert on the use of federal special prosecutors.
Publicly, the first official notice that Trump’s campaign was under investigation for potentially colluding with Russia came on March 20 during testimony from then-FBI Director James Comey.
There were several other moments over the last 10 months that legal experts say qualify as ample warning for document preservation too. As the FBI last July quietly launched its probe into the Trump campaign’s possible links to Russia, Trump was causing an uproar during a press conference by calling on Russia to “find the 30,000 emails that are missing” from Hillary Clinton’s private e-mail account.
During the campaign, Clinton repeatedly questioned Trump’s ties to Russia and the connection to cyberattacks that saw thousands of her top staff’s private email messages publicly released via WikiLeaks –including in their first debate in September on Long Island. And on Oct. 7, the Obama administration’s top intelligence agencies publicly accused Russia of hacking the Democratic National Committee to interfere with the election.
Trump advisers before the election also recognized that they could end up answering questions from law enforcement. For example, Roger Stone, a longtime Trump associate, told POLITICO in mid-October he would be “happy to cooperate” if the FBI called for an interview to discuss his relationship with WikiLeaks and a series of anti-Clinton statements he’d made that Democrats took as acknowledgment of the hacking into Clinton campaign chairman John Podesta’s Gmail account.
Former Trump aides who have been drawn into the active congressional investigations have adopted different approaches when pressed for their documents. Stone’s personal attorney, Robert Buschel, said in an email last week that Stone had complied with requests from Congress to supply “all documents that were consistent with their respective specific requests.”
Paul Manafort, the former Trump campaign chairman whose work in Ukraine is under review, also turned over documents last week to the Senate Intelligence Committee, according to a Capitol Hill source who added that the materials are still under review and it’s not yet clear if he’s complied or not.
Michael Caputo, a political consultant who worked in Russia and then on the Trump campaign, has been asked by the House Intelligence Committee to produce documents. Caputo, who resigned from the Trump campaign in June 2016, said in a recent letter to the panel’s GOP and Democratic leaders that he didn’t have any documents related to its investigation. “I knew nothing of this matter, I had no discussions of this matter when I served the presidential campaign of Donald J. Trump, nor did I send or receive emails about this topic,” Caputo wrote, while also offering to testify publicly on the issue.
Former Trump White House National Security Adviser Michael Flynn’s attorneys last Monday also sent a letter to the Senate Intelligence Committee citing his Fifth Amendment right to reject a subpoena seeking a list of all his communications with Russian officials before the November election. But that’s hardly the end of the chase. The Senate Intelligence panel voted unanimously last Thursday to give its leaders blanket authority to issue subpoenas as they deem necessary. And more subpoenas are coming soon from the House Intelligence Committee, said California Democratic Rep. Adam Schiff, the panel’s ranking member.
Congress has the power to file contempt charges against people who do not comply with subpoenas, but it’s far from certain either the GOP-led House or Senate would go that far. That makes the Mueller probe that much more potent. His requests are likely to generate expensive, time-consuming searches and potentially explosive legal fights that could come to define the Russia investigation just as much as the underlying mission to figure out whether Trump’s staff colluded with a foreign adversary to win the White House.
Mueller, the former FBI director, is known for his thoroughness diving in on all relevant angles, and that has law enforcement veterans expecting his search for materials to start with the lowest-level campaign aides who may have useful documents and potentially even work their way up to Trump himself.
“In any of these investigations, and especially one of this magnitude, you’re going to start at the easy part and then work to the hard,” said Robert Anderson, a former senior FBI official who ran the bureau’s criminal and cyber investigations.
Mueller and his investigators have lots of options for gleaning Trump materials like telephone records, emails and other digital trails. They can issue a criminal subpoena through a grand jury, and for matters involving counter-intelligence issues, they can get a national security letter, which is a classified administrative subpoena that doesn’t require a judge’s prior approval.
Even if Trump aides successfully masked the content of their communications with Confide or other encrypted tools, prosecutors aren’t at a total loss in their search for answers. They can obtain phone records, app downloads and other useful data logs under Supreme Court precedent that allows the government to obtain information shared through a third party, like a telephone company or internet search engine.
“Just the fact you have this app on your phone I think is going to be a red flag to investigators, particularly if it’s on a phone that’s being used for official business,” said David Vladeck, a Georgetown University law professor and former official at the Federal Trade Commission.
Search warrants are another option – though that would require an extra burden of proving probable cause. They’d also need to be handled in delicate fashion given the sensitive nature of the investigation.
“That’s a power they have,” said William Jeffress, a white-collar defense attorney who represented I. Lewis “Scooter” Libby, the chief of staff for then-Vice President Dick Cheney, during the investigation into the leak of CIA agent Valerie Plame’s identity.
Democrats are warning Trump and his current and former staffers that the consequences can be very real if they don’t comply with Mueller’s document requests.
"The rule of law depends on lawyers and other sworn public servants actually caring to follow it — preserving documents, not tampering with evidence, not interfering with investigations,” said Ian Bassin, a former attorney in the Obama White House counsel’s office.
“This takes knowledge of the rules and effort to abide by them, two things that seem to be in short supply in this White House,” he added. “They’d be wise to fix that quickly if they want to avoid what can be serious legal consequences for individual lawyers and staffers who get this stuff wrong.”
Trump’s White House could try to invoke executive privilege to prevent document disclosures. But that would likely lead to a heated public legal fight invoking the unanimous 1974 Supreme Court case rejecting President Richard Nixon’s attempts to keep private presidential tape recordings and other materials that had been subject to subpoena.
“To the extent there’s any precedent to this, and there’s not a lot, that’s what we got,” Vladeck said. “And the bottom line is the tapes ended up in the hands of the special prosecutor.”