Columns, Criminal law, Politics

Jared Kushner and The Precarious Line Between Inconsistency and Criminality

Below is my column in The Hill Newspaper exploring the legal liability for Jared Kushner.  While new media reports that some documents may have been turned over to the Trump aides in the infamous meeting with the Russian lawyer, there is no evidence of any prior or later conspiracy to commit a crime.  There is no specific crime of “collusion” and the meeting did not constitute prima facie evidence of any collateral crime.  That does not take away from the fact that Donald Trump Jr. wanted to collude. He agreed to go to a meeting with the understanding that the Russian government was sending over a lawyer with incriminating information.  He should have called the Justice Department.  Moreover, only a click-bait chump would have gone to that meeting. Now the Trump Administration will have to maintain the only thing that it has long eluded it: a consistent and coherent narrative.

Here is the column:

Jared Kushner, the president’s son-in-law and top adviser, holds the unenviable position of being the designated defendant of choice in the media. While the Russian meeting arranged with Donald Trump Jr. has been widely denounced, Trump Jr. is a private citizen. Kushner is a government official facing an array of allegations, ranging from his own participation in the meeting to his baffling failure to remember an array of meetings with Russian figures. That raises a good-faith basis for investigation, though criminal allegations have been greatly overblown on the existing facts.

Kushner has had to refile his security clearance twice already, due to his omissions of significant meetings with Russians. One meeting involved both Kushner and Michael Flynn with Sergey Kislyak, the Russian ambassador to the United States. That was the meeting where Kushner allegedly suggested the creation of a secret back channel of communication through Russian diplomatic facilities.

Kushner also participated in a meeting with Sergey Gorkov, the head of Vnesheconombank, a Russian bank that was the subject of U.S. sanctions. Gorkov is a graduate of Russia’s spy school, known as the Academy of the Federal Security Service. These are clearly meetings that should have been included in his classification form, and frankly, they should have stood out in Kushner’s memory when asked about interactions with foreigners.

I have already discussed how claims of treason and criminal election violations are not just wildly out of sync with existing case law, but dangerous expansions of criminal law. We are living in the age of rage, when no cost seems too great to pay for an indictment of a Trump. That apparently includes expanding the definition of treason or making the receipt of information from any foreigner into a federal crime. Likewise, key elements of obstruction are conspicuously absent on the current facts. Fortunately, such radical expansions of our criminal code would face substantial opposition in the courts, particularly by First Amendment advocates.

Kushner’s greatest risk is a possible charge of false statements to federal investigators under laws like 18 U.S.C. 1001. The key elements for this crime are simple and straightforward, which is why criminal defense counsels fear this charge more than most in an indictment. The prosecutors must show that Kushner made a false or fictitious or fraudulent statement of a material fact. This can include writings which create a false account. While the statement must done knowingly and willfully, that remains a jury question based on their view of the facts of the case.

Many jurors may be skeptical that even a busy person like Kushner would forget so many meetings with Russians, particularly a meeting billed as conveying information from the Kremlin to incriminate Hillary Clinton. Prosecutors do not need to show that the statement was falsely made with an intent to defraud. It is enough, as the Fifth Circuit has stated, that it is “made with an intent to deceive, a design to induce belief in the falsity or to mislead,” as opposed to an intent to deprive someone of something by means of deceit. There is also no need to prove “evil intent” — simply that the statement was made deliberately and knowingly.

18 U.S.C. 1001 is a virtual designer crime for Washington. People in this town have type A personalities and believe that they can talk their way out of every jam by sheer force of character. The ultimate example is Bill Clinton and his “too-clever-by-half” argument over the meaning of “is.” While Clinton ended up impeached rather than indicted, 1001 crimes have claimed many a dealmaker and mover shaker. The potential penalty is five years in jail (eight years for terrorism related violations).

Worse yet, the risk of false or misleading statements increases with the number of investigations and interviews for a target and Kushner is clearly a likely target. It is not clear whether Kushner has been interviewed by federal investigator but he will be. As Kushner faces congressional and federal investigators in multiple investigations, he will have to do something that has escaped the Trump administration thus far: maintain a single coherent narrative.

It is not a crime to lie to the public — indeed some in Washington view it as an art. However, you can be charged with false statements on federal documents like his classification form, known as the SF86. It is not uncommon to have such errors, but critics have charged a pattern of amnesia over Russia contacts.

It is possible to prosecute such failures but such prosecutions are rare. Having said that, I represented a judge in the last impeachment trial in the Senate accused of omitting material facts from his forms before the Senate Judiciary Committee. The common and obvious defense to such charges is that you simply forgot, and thus lacked criminal intent. The problem can be convincing a jury that such meetings do not concentrate the mind or stick in your memory.

Kushner’s counsel can also object that the Trump family should not be subject to a special category of prosecutorial discretion — or lack thereof — in bringing criminal charges. There were no criminal charges over misleading information given in the Clinton email investigation by aides nor the transmission of classified information. Likewise, when National Intelligence Director James Clapper gave false testimony before Congress, there was no investigation, let alone charges. A variety of officials from the Clinton administration and others before it have been alleged to have lied or obstructed Congress without a criminal charge.

The most common response to the Kushner omissions is not criminal, but administrative. Kushner appears to have only provisional or temporary access to classified information. In most cases, these omissions would likely have led to the denial of a clearance. However this is not “most cases.” The president ultimately decides what is classified. The greater power to declassify includes the lesser power to grant access to classified information.

There is one other area of potential concern for Kushner. The ever-changing explanations and disclosures about these meetings have the effect of expanding the scope of the investigation. Defense lawyers try to maintain a single narrative to avoid investigatory drift. The White House has succeeded in maximizing the potential scope of this investigation not only by the firing of James Comey (and the inevitable appointment of a special counsel) but by an array of belatedly disclosed meetings and associations. That expansion allows investigators more justification in exploring prior relationships and transactions from tax filings to loan deals. Kushner has reportedly sought loans from various foreign sources, and those transactions could come under increasing review.

At the moment, Kushner does not appear at any imminent risk of indictment. However, every new spin of the scandal wheel tends to expand the investigations and the risk for potential targets like Kushner. A Washington scandal is rarely contained in the original actions or omissions. If history shows anything in the Beltway, it is that the greatest risks are found on the other side of a scandal — when the aftermath becomes the prelude to a prosecution.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University.

78 thoughts on “Jared Kushner and The Precarious Line Between Inconsistency and Criminality”

  1. Kushner going to the Russian Embassy and met with Flynn and Kislyak to inquire about the possibility of using secure lines from the Russian Embassy to speak directly to…Putin? subverting American Security. That is no problem for you…Seditious behavior and if you believe the Russians when they say they are waging Cyberwar…Treason too.

    2. littlewitch, I am not sure of the timing of all of this, but is it a problem if an American businessman (not working for the government) has a conversation with a foreign leader and keeps that conversation secure?

  2. Pingback: Jared Kushner and The Precarious Line Between Inconsistency and Criminality – Freedom & Liberty Blog

  3. Collusion doesn’t necessarily mean that there was a result to the collusion. It has to do with intent. Thismismthe Oxford Dicrionary definition of collusion.

    “Secret or illegal cooperation or conspiracy in order to deceive others.”

    IMO, collusion does not have to have the intended outcome to qualify as collusion.

  4. The Democrats seem to be cannabalistic as they strive to their singular point of view that permits little if any dissent. Jared Kushner is a Democrat who, if anything, could help to move Trump in a leftward ideological direction. Jared’s real criminal offense to Democrats is that he married a Trump who herself is liberal.

  5. They should all take the Hillary and Comey defense. “If I could do it over” or “If I was stronger”. Seems to be a believable defense for them. Maybe for brevity we can assign them numbers like I take the fifth. These could be I take Bull*#*# 1 for Hilly or I take Bull#*#* 2 for Comey.

  6. Like I wrote here before, Americans judge Presidents by what they do, not how they do it or who they hang around with. Trump has a roaring stock market, declining regulatory state, got his SCOTUS pick through the Senate, dramatically reduced the invasion of illegal immigrants, got ISIS in a submission hold and brought back jobs and investment seemingly lost to Americans, He even took on one of America’s unassailable sacred cows, the Press, who like our federal judiciary has gotten way too big for its collective britches. Everything else is pretty irrelevant to most folks who don’t live in DC or Lalaland. And that infuriates the radical Left.

    2. So in other words you just want the trains to run on time, you don’t care about Trump & Co following the law.

      And anyone who doesn’t agree with you is the “radical left”.

      Actually I think that accurately describes some of the views of many Trump supporters.

      The Trump supporters who think everything is all rosey right now remind me of the man who jumped off of the Empire State Building with no parachute. As he is passing the 90th floor, a person in the building asks the man how he is doing. The man answers:” So far so good!”

  7. Typical right wing- “consistent narrative” is more important than truth.

  8. Just a hunch, but this is what I think the “there” there is:
    Opening quote:”One month before Election Day, Jared Kushner’s real estate company finalized a $285 million loan as part of a refinancing package for its property near Times Square in Manhattan.

    The loan came at a critical moment. Kushner was playing a key role in the presidential campaign of his father-in-law, Donald Trump. The lender, Deutsche Bank, was negotiating to settle a federal mortgage fraud case and charges from New York state regulators that it aided a possible Russian money-laundering scheme. The cases were settled in December and January”.

    http://www.sandiegouniontribune.com/news/us-politics/ct-kushner-deutsche-bank-loan-20170625-story.html

    1. The article I linked to above is really fascinating.
      Here it introduces another character:
      “Africa-Israel’s decision to purchase the building was made by its chairman, an Uzbek-born Israeli citizen, Lev Leviev. He is one of the world’s wealthiest men, known as the “King of Diamonds” for his extensive holdings in Africa, Israel and Russia. He was then expanding his real estate holdings in New York City.

      Leviev told the New York Times shortly after the building’s purchase that he was a “true friend” of Russian President Vladimir Putin, largely through his work with an influential Jewish organization in the former Soviet Union. The newspaper wrote that he kept a photo of Putin in his office in Israel. Leviev’s company said in a statement to The Post that Leviev “does not have a personal relationship” with Putin but has met him “on a few occasions.” Leviev’s statement said he was referring to his belief that “Mr. Putin has been a ‘true friend’ to the Jewish people in Russia.”

  9. Saudi women cannot drive cars and American humans cannot talk to the Russians.
    Because: …how was I to know, she was with the Russians too!
    That sentence has an exclamation point not a question mark at the end.

  10. WAKE UP AMERICA !
    PROSECUTE U.S. / ISRAELI WAR CRIMINALS
    NUREMBERG TRIALS OF WASHINGTON, DC

    The following article states Jared Kushner approved the military strike where poster child ‘ Nora ‘ and eight other children were murdered. This makes Kushner a Mass Murderer and War Criminal as Trump and all the other Co-conspirators.

    https://www.theguardian.com/world/2017/feb/02/trump-approved-yemen-raid-five-days-after-inauguration

    “The mission was approved over dinner five days after the presidential inauguration by Trump and his closest advisers, including his son-in-law Jared Kushner and his special adviser and former Breitbart executive Stephen Bannon, as well as defense secretary General Jim Mattis.”

    ‘ Nora ‘
    Poster Child of the many thousands of Child Murders committed by Trump, Bush, Obama & Netanyahu.

    http://buenavistamall.com/murderedgirl2.jpg

  11. And these are the mutts the dupes put in to clear the swamp. Brilliant.

    1. Clinton was the least bad, or better if you will. In the dysfunctional oligarchical political system entrenched in this land, the least disgusting can be seen as the best. Trump proved to any rational mind well before he was elected that he was crazy and inept. The man’s has serious mental problems. How can one get over this festering open sore that continues to pour salt on itself?

      1. Gary Johnson was by far the least bad on a ballot full of crooks and lunatics. He would’ve advanced the GOP agenda, with which I often disagree, but I still have the quaint notion that character and integrity are significant, important qualities in public officials.

      2. Issac, you look at the aesthetic too much.
        Look at the reality of how government has functioned under Trump regardless of all the slime being thrown at him by the losing class.
        1) SCOTUS appointment
        2) Thrown MSM off their game and he keeps pointing out how much of an insider corporatist sham game they run in the name of journalism
        3) Withdrew US from the TPP
        4) Dismantled Obama era regulations busing the same executive action vehicles Obama used to pout those regulations in place

        Sorry dude, but the lesser of three evils means it’s up to the party’s elders to submit better candidates with real policies that affect average Americans and Clinton was FAR from that.

        Here’s a poll you might want to look at.
        http://abcnews.go.com/Politics/months-record-low-trump-troubles-russia-health-care/story?id=48639490

        Look at the “Positives For Trump” graph. That’s the canary in the coal mine for the Dems my friend.

        As they say in rehab:”Quit Stewin and Get To Doin”.

  12. Kushner is at some retreat for big wigs, this must be going down well. He and his wife are Democrats who only registered as Republicans to vote for Trump. So, is he part of the set-up plot with the Russians?

  13. A new poll is out. If you think this is driving people to drink….It’s true.

    Over 73 percent of Democrats would give up alcohol for the rest of their life if it meant President Trump would be impeached tomorrow, according to a survey released on Thursday by a drug and alcohol rehabilitation group.

    Only 17 percent of Republicans would give up alcohol for Trump’s impeachment. The poll also found that nearly 31 percent of Republicans would give up drinking if it meant the media stopped writing negative things about President Trump.

    Rep. Brad Sherman (D-Calif.) formally introduced an article of impeachment against President Trump on Wednesday, accusing the president of obstructing justice during the investigation of Russia’s 2016 election interference. It was the first time a lawmaker had offered an impeachment article against Trump.

      1. Paul Schulte,….
        Rep. Sherman stated in early January that “the Electoral College votes are controlled in Moscow”.
        He announced plans to draft articles of impeachment at least 6 weeks ago.
        I don’t know if the “electoral votes controlled in Moscow” are part of his basis for impeachment.
        Rep. Maxine Waters might still draft her own aticles of impeachment, based on the 700 Billion people😄 who will go uninsured because of Trump.

  15. Find out if she attend Charm School and can operate a Canary Trap which didn’t seem to work in that case. Withthat caliber how did they ever manage to last this long?

  17. Well if you have to talk about nothing or as we say in Spanish a Bichi Burger Pauls comment is certainly more apt to be correct than any other. However.

    However. How come I can get The Creature on computer streaming or Why are the sharks of Florida colluding on yankee tourists??? No one is talking about the serrious stuff.

    1. Why? is Why Not? There is no Why? just like there is not there there. Never mind the serious intellects of this forum but the people with no there there. or something? Thank you Autumn.

      1. Michael – thanks for the kudos. Check out videos by Styxenhammenr666, Jimmy Dore and Tim Black. There are people from various political / ideologies who are producing great stuff – we may not agree on everything, but those folks have integrity.

        BTW – how long have you lived in Mexico? Curious as my husband and I are thinking about retirement options.

          1. Dolores, if you want to compare him to the MSM I think he’s a more accurate read on reality any given day.
            You listing a couple of his quirky ideas doesn’t discount him to those of us who have had enough of the corporate media.
            Have you listened to any of his videos?
            And who would you suggest?
            Rachel Maddow, Joy Ann-Reid or possibly Ben Wittes?

    2. How about Mike Pence drain that whole Trump swamp? Send the entire band of criminals to the pokey.

  19. Speaking of the special counsel, how can Mueller be an appropriate choice given USC 18 Section 528?

    1. Uh, do you mean 28 USC 528? If so, further development of your argument is necessary.

      this is to rsa

    2. He can’t but then when did following the law become part of the socialist democrat agenda?

  20. It appears the Russian lawyer is a long-time operative of the DNC. Can you spell set-up?

      1. David Benson – you have to keep up with the real news. That Russian lawyer was let into the country on a special waiver by Loretta Lynch and has been working with the Democrats for at least 5 years.

        Get your head in the game, you are falling behind. 😉

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