Betteridge’s law of headlines states that “any headline that ends in a question mark can be answered with the word no.” But this question is not that simple, since it is rooted in reports that would suggest that Jared Kushner really did commit a felony. The SF-86 is a form that anyone applying for a government security clearance must fill out, and it is serious business. The applicant must sign it and affirm that “I have read the instructions and I understand that if I withhold, misrepresent, or falsify information on this form, I am subject to the penalties for inaccurate or false statement (per U.S. Criminal Code, Title 18, section 1001), denial or revocation of a security clearance, and/or removal and debarment from Federal service.” Violators can spend up to a maximum of five years in prison.
U.S. Criminal Code, Title 18, section 1001 outlines three basic offenses that one can make:
1. falsifies, conceals, or covers up by any trick, scheme, or device a material fact;
2. makes any materially false, fictitious, or fraudulent statement or representation; or
3. makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry;
In April, it was widely reported that Jared Kushner “did not mention dozens of contacts with foreign leaders or officials in recent months.” His lawyer, Jamie Gorelick, claimed that this was an unintentional error when the SF-86 was submitted on January 18th, and said that he would amend it to reflect this mistake. This is not unnatural, as the government allows for someone to supplement this form with additional information if the omission is deemed to be an oversight. Prosecution for this type of offense is rare simply because it commands more resources than it is usually worth. However, this certainly is not a normal case.
In March, The New York Times reported that Kushner and Michael Flynn met with Sergei Kislyak in Trump Tower in December—so at most, six and a half weeks had passed between this meeting and the day that Kushner submitted his SF-86. Kushner no doubt met with many officials during the transition since he is Donald Trump’s de facto Secretary of State, but a powwow in your boss’s building with the top diplomat of the country that just intervened in your boss’s election seems like a difficult thing to forget. Additionally, the details from that encounter are alarming.
On Friday night, just as most of us were abandoning the news cycle for a relaxing three day weekend, The Washington Post dropped one of the biggest news bombs yet, when they reported the reason behind that December gathering in Trump Tower:
Jared Kushner and Russia's ambassador to Washington discussed the possibility of setting up a secret and secure communications channel between Trump's transition team and the Kremlin, using Russian diplomatic facilities in an apparent move to shield their pre-inauguration discussions from monitoring, according to U.S. officials briefed on intelligence reports.
Kislyak was apparently “taken aback” by this suggestion, as it is as brazen an idea as it is stupid. Perhaps most importantly, Kushner's lawyer did not dispute this version of events. Why would Kushner feel the need to shield his communications from the United States intelligence community? Secondly, how stupid do you have to be to think that American spies don't have the Russian embassy covered in surveillance? Michael Flynn was certainly this dumb, as he was caught because he spoke openly to Sergei Kislyak about potentially dropping or easing sanctions. Scott Olson, a recently retired FBI agent who ran counterintelligence operations for over 20 years, told Business Insider that:
”This is way beyond a private server. This is doing US government diplomatic business over a foreign government's communication system. It's not an off-the-record conversation. It's a conversation recorded by the opposing party. This shows a staggering lack of understanding of the US and its place in the world. Actually, it shows a staggering lack of common sense. When he negotiates a business deal does he use the other guy's notes?”
Michael Hayden—the former director of the CIA and NSA—told CNN that “This is off the map. I know of no other experience like this in our history, and certainly not within my life experience.” Glenn Carle, a former counterterrorism official at the CIA for over two decades told BI:
“If you are in a position of public trust, and you talk to, meet, or collude with a foreign power” while trying to subvert normal state channels, “you are, in the eyes of the FBI and CIA, a traitor. That is what I spent my life getting foreigners to do with me, for the US government.”
Combine Flynn's conversation about sanctions with Kushner's insanely stupid “back-channel,” and this starts to really look nefarious. Even more so when Donald Trump admitted to Lester Holt that “the Russia thing” was a reason for firing James Comey as FBI Director. The New York Times reported that the back channel was floated as a way to discuss strategy in Syria, but this is a nonsensical excuse, as a former NSA lawyer pointed out the obvious.
Even more alarming is that this seems to be spin coming from the Kushner camp, as the national editor of The Washington Post confirmed that they spoke to the same people the Times did, but they did not print this version of events.
Throw in the Reuters report that dropped shortly after WaPo set the internet ablaze—asserting that Kushner had three undisclosed meetings with the Russian ambassador—and this starts to look really, really bad. Even worse is the kicker towards the bottom describing what the FBI is investigating.
FBI investigators are examining whether Russians suggested to Kushner or other Trump aides that relaxing economic sanctions would allow Russian banks to offer financing to people with ties to Trump, said the current U.S. law enforcement official.
The head of Russian state-owned Vnesheconombank, Sergei Nikolaevich Gorkov, a trained intelligence officer whom Putin appointed, met Kushner at Trump Tower in December. The bank is under U.S. sanctions and was implicated in a 2015 espionage case in which one of its New York executives pleaded guilty to spying and was jailed.
The response from Kushner’s lawyer isn’t too comforting.
“Mr Kushner participated in thousands of calls in this time period. He has no recollection of the calls as described. We have asked (Reuters) for the dates of such alleged calls so we may look into it and respond, but we have not received such information.”
Translated to English, that reads: can you tell us which one of our secret conversations you have a record of so we can deny it?
So, let’s return to the question at the top of this column: could Jared Kushner go to jail? U.S. Criminal Code, Title 18, section 1001 has a very important qualifier for a violation to be considered a crime. For Kushner to be subject to a felony, he must have “knowingly and willfully” omitted that gathering from his SF-86.
This is something that can only be demonstrated in a court room, so it’s impossible to come to any firm conclusion given how early we are in this process, but the circumstantial evidence is a bit overwhelming. Kushner met with the head of Putin’s most trusted bank and spoke with the Russian ambassador three times between April and November, then proposed setting up a communications channel owned and operated by the Russians in a meeting with Michael Flynn and Kislyak, who both discussed American sanctions on Russia later that month. None of this was disclosed to the federal government.
Jared Kushner very clearly “concealed a material fact.” It seems like quite a small needle to thread, arguing that Kushner did not “knowingly and willfully” hide an encounter from the government in which he was discussing plans to obscure future communications from the government. Given that Kushner’s motives are under FBI investigation, at the very least, this potential offense should serve as leverage that investigators can use to get to the bottom of what really went on between Donald Trump and the Russians.
Jacob Weindling is a staff writer for Paste politics. Follow him on Twitter at @Jakeweindling.