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. Zzzzzz ZZZZZzzzzz ZZZZZzzzzz.

    (Please wake me up when the Leftists’ obsession with indulging in stupidity and ultrasubcretinesque behavior abates.)

  2. Every driver on the freeway is guilty of a crime or infraction.

    Every person in America can be proven guilty of some type of crime

    if the investigation is thorough enough.

    That is the very nature of a “witch hunt,”

    to focus investigations on one person, persistently

    until an infinitesimally minuscule anomaly turns up.

    Corruption is when “no intent” is found on behalf of truly guilty criminals.

  3. Professor Turley, these inflammatory accusations are political not legal.
    _____

    “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.”

    – The only fact is that Trump Jr. wanted to attend a meeting.

    – Where is the law against “meeting” with anyone – members of both parties meet with everyone?

    – Trump Jr. expected to obtain and possess “information” not collude (to act together).

    – Indeed and in fact, Trump Jr. did not “act” at all – alone or together – the meeting produced nothing.
    _____

    “He should have called the Justice Department.”

    – The Justice Dept. was corrupt with:

    – the AG taking orders from a disgraced, corrupt private citizen on the tarmac of the Phoenix airport

    – the AG giving direct orders to the FBI Director

    – James Comey refusing to recommend a “slam-dunk” case against Hillary

    – a previous AG, Eric Holder, being found in Contempt of Congress.

    – etc.

  4. Let’s say–who really knows?–that this Keystone Kops fiasco is the only contact the campaign as such had with Russian “entities” in the nature of something that smacks of an effort at collusion. How does this by itself disturb Trump’s overall narrative/position on any Russian campaign nexus that there was no collusion?

    And just btw, how is, if this is what happened, the “campaign” attending a meeting only to try to get Russian oppo information with no quid pro quo and no agreement to join in any cooperative effort at anything collusive? How, i.e., analytically does a passive recipient of foreign sourced information collude with the foreign provider?

  5. Maybe if I write it this way it’ll get through the censors?

    Eberwein was a former Haitian government official who was expected to expose the extent of Clinton Foundation corruption and malpractice next week. He has been found ” Un Alive” in Miami at the age of 50.

    http://www.zerohedge.com/

    Friend Insists “Un Breathing” Of Republican Operative Behind WSJ Collusion “Bombshell” Wasn’t A Suuuuicide

    “This does not seem like a settled story. It made perfect sense to me he might have “become Un Alive” of natural causes, but little chance he would have “Offed” himself,”…

    http://www.zerohedge.com/

    • Oky1

      One of the reasons your previous comments were shunted was because they contained more than two hyperlinks. I think you might know this now but generally if you wish to offer more than two you can simply use additional comments to contains these. The system does this to help curtail spam.

  6. Oky1
    July 16, 2017 at 4:09 PM

    Your comment is awaiting moderation.

    http://www.wnd.com/2016/08/clinton-death-list-33-most-intriguing-cases/

    Paul, don’t forget Sen McCain & his Peegate Fantasy, W/Russian ties is also directly tied to this Russian lawyer , the DNC & his upper crust control of Navy Intel. Also direct ties to say Syrian trouble makers, 4 JT’s censors, & funding them. And he’s likely involved up to his eyeballs in this on going Evil Peedogate crap.

    Keep in mind I’ve great sources that tell me the junior officers & rank & file Navy Intel people Hate McCain Guts & want him Gone.

    Yep! They have to come after Trump because he’s come after them, the Peedos!

    Posted July 15th, 2017 at 1:55 PM (CST) by Bill Holter & filed under In The News.

    Bill Holter’s Commentary

    One can only hope and pray President Trump wins this war!

    Trump’s War on Peedophiles Just Went Hot
    July 14, 2017

    “My Administration is focused on ending the horrific practice of human trafficking, and the three bills the House of Representatives passed today are important steps forward. Since taking office, I have met with courageous survivors, non-profit groups, and faith leaders who are devoting tremendous energy to raising awareness about human trafficking. I am hopeful that the Senate will take up and pass these three bills as soon as possible and I look forward to my continued work with the Congress on this important issue.” — Statement from President Donald J. Trump on the Passage of H.R. 2664, H.R. 2480, and H.R. 2200, July 12, 2017

    Just before leaving for his trip to France, President Trump sent three Anti-Human-Trafficking bills through the House of Representatives and on their way to the Senate. Curiously – or not – we haven’t heard much about this from #FakeNews outlets like CNN.

  7. ” 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. ”

    The same is true of Kushner. According to Jr., he sent the emails on to Kushner and Manaford, so Kushner and Manaford also knew the meeting was with a Russian lawyer about “dirt” on Clinton.

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