The Washington Post released a bombshell story on Friday that alleges that senior White House aide (and presidential son-in-law) Jared Kushner met withSergei Kislyak, the Russian ambassador to Washington to set up a private communications channel with the Kremlin. The channel reportedly was sought for secret and secure and direct communications with the Russians. Once again, there is nothing on its face unlawful about either the meeting or the desire for a secure communications line. However, the allegation (if true) would deepen the unease over the associations between the Trump camp and the Russians. The increasing number of meetings has raised questions over why Trump officials were so solicitous to the Russians — a concern that reached its apex with Trump’s bizarre decision to entertain Kislyak and the Russian Foreign Minister in the Oval Office the day after firing former FBI Director James Comey. Update: After two days, the White House has been conspicuously silent.
The Post is relying on officials who leaked the results of intelligence reports on the meetings. Reuters is also reporting that Kushner had at least three previously undisclosed contacts with Kislyak during and after the 2016 presidential campaign.
The officials told the Post that it was Kushner who suggested the use of Russian diplomatic facilities as a way to shield their pre-inauguration discussions from monitoring. That is a rather bizarre request since Trump could have asked for a secure line from U.S. officials after the election to facilitate any discussions.
Notably, Flynn was also in the meeting.
The idea of working with the Russians to create a secret line of communications would be highly alarming for U.S. intelligence officials who actively seek to monitor such communications. Nevertheless, as I explained earlier, there is no Logan Act violation in such meetings.
There are a couple of serious questions however raised by the story (again if true). First, did Kushner reveal the contacts and particularly the effort to create a secret communication channel with the Russians as part of his security clearance? The failure to do so would be a major violation and raise issues of false statements to the government. Second, is there any evidence to suggest that the Russians disclosed or discussed the hacking of the email systems? If so, statements made by Trump officials could be challenged as knowingly false or misleading, including statements made to congressional members. Finally, it is doubtful that Kushner would simply take it upon himself to carry out such meetings. This last question will be dangerously reminiscent: “What did the President know and when did he know it?”
Once again, as I have stated repeatedly for weeks, this alleged cover up still lacks a clear crime. The most that Jeff Toobin could come up with on CNN this week when pressed was “It’s a crime, aiding and abetting, hacking, it’s a crime.” Sure, but it is a highly implausible crime to suggest that Trump or his associates played an active and direct role. Section 1030 of the Computer Fraud and Abuse Act makes any unauthorized access into a protected network or computer a federal crime and permits harsh penalties for those convicted. However, there is little reason for the Russians to enlist the help or even inform Trump officials of any such effort. Indeed, intelligence officers are trained to avoid unnecessary disclosures and to compartmentize such information.
The legal danger presented by the Post story is the degree to which it contradicts statements made to investigators or Congress. Thus far, there has not been a great deal of such statements to investigators who only this week indicated a desire to interview Kushner. Yet, the risk rises with these interviews for White House staff given the ever present threat of an 18 U.S.C. 1001 prosecution for false statements.
At a minimum, Kushner’s meetings with the Russians should require his recusal from White House efforts in this area, including the recently announced war room operation with Steve Bannon.
Kushner has expressed a willingness to discuss these meetings and he may deny the allegations in the Post story. Once again, there is a presumption of innocence and the need to articulate a crime in this whole Russian mess. Yet, the Post story again raises more questions and answers.