Kushner still has access to nation’s secrets while under FBI scrutiny
President Trump’s son-in-law Jared Kushner is reported to be a “significant person of interest” in the ongoing Russia investigation, but for the moment he still has access to the nation’s most carefully guarded secrets and will keep his office just steps away from the Oval Office.
But the fact that he’s a “person of interest” for the FBI — as Kushner has been labeled after multiple reports that he is under FBI scrutiny — carries almost no legal restrictions at all. It does, however, cast a pall over White House decision-making, particularly given the vast array of responsibilities entrusted to Kushner by his father-in-law, including negotiating peace in the Middle East, solving the opioid epidemic in the U.S., and handling diplomatic affairs with both China and Mexico.
“The bottom line is that if Kushner were not a family member, he would be dismissed to preserve the political legitimacy of the White House decision-making process and to separate his legal situation from that of the president,” said William Yeomans, a former deputy assistant attorney general who spent 26 years at the Justice Department.
But from a legal standpoint, the existence of an investigation and the label “person of interest” won’t stop Kushner, 36, a “senior adviser” to Trump, from participating in those decisions, regardless of how sensitive. “Someone who has been labeled a person of interest is not limited in what they can and can’t do, and it is business as usual,” said Denise Minor, a former FBI agent who specialized in white-collar crime and counterintelligence during her 28 years at the bureau.
Law experts note that “person of interest” doesn’t have an exact legal definition but is rather used by some prosecutors to put the person on notice that an investigation could envelop them. As such, the only real restriction is that Kushner’s moves will now be more scrutinized.
“If someone who knows they are under investigation destroyed notes and material that they should realize may be sought for an investigation, that person could worsen their own position by giving rise to inferences against themselves, or in an extreme case, could raise the possibility of obstruction of justice,” said Paul Rothstein, a professor at Georgetown Law School.
The bottom line is that if Kushner were not a family member, he would be dismissed to preserve the political legitimacy of the White House decision-making process and to separate his legal situation from that of the president.
Separate from Kushner’s legal bind, political pressure continues to build. Over 50 Democrats in Congress called on June 1 for the White House to immediately revoke Kushner’s security clearance, up from five Democrats who demanded the same on April 13. But Trump seems unlikely to demote or fire his son-in-law, and Democrats in Congress have little power to enforce such a demand.
For now, most of Kushner’s difficulties are logistical. Defense attorneys speculate that Kushner’s lawyer Jamie Gorlick, who served as deputy attorney general during the Clinton administration, will likely be making copies and reviewing Kushner’s notes and emails while he works in the White House.
“If the documents are relevant to the Russian investigation or to the firing of [FBI Director James] Comey which is encompassed in this investigation, any lawyer would advise Jared to preserve them,” said Bill Jeffress, a partner at Baker Botts who was part of Lewis “Scooter” Libby’s legal defense team. Libby, Vice President Dick Cheney’s chief of staff, was investigated and later prosecuted by a special counsel appointed during George W. Bush’s administration.
But even though he has free rein now, Kushner could still be in criminal trouble later.
He failed to disclose meetings and phone calls with Russian ambassador Sergey Kislyak that took place in early December on his SF-86 form, which he submitted Jan. 18. “Knowingly falsifying or concealing information” on the SF-86, the standard security clearance form signed by senior White House personnel, carries a felony charge. And during the presidential transition in December, Kushner met with the head of a Russian bank under U.S. sanctions, which he also failed to disclose on his form.
But lawyers speculate that Kushner’s disclosure errors may be rolled into the larger Russia probe instead of being investigated separately, which could further delay any consequences. This has already happened with other ongoing investigations into Trump-aligned figures. On Friday, the Associated Press reported that the newly appointed special counsel, former FBI Director Robert Mueller, had “assumed oversight” of the investigation into Paul Manafort, former Trump campaign chairman.
In a December meeting with Kislyak, Kushner reportedly “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 the Washington Post.
And Kushner reportedly encouraged Trump’s decision to fire FBI Director James Comey while the director was investigating possible collusion between Trump’s campaign and the Russian government, a move that will likely come under further scrutiny in the many overlapping investigations underway.
The FBI’s criminal probe has continued after Comey’s dismissal and is now being overseen by Mueller. The status of that investigation has been kept tightly under wraps — although some speculated that Mueller’s decision to hire Andrew Weissman, a lawyer formerly with the DOJ’s Criminal Division of Fraud unit whose areas of expertise includes international financial fraud and corruption, offered a hint about its direction.
The Senate Intelligence Committee and the House Intelligence Committee have taken the lead on Capitol Hill while other committees like the Senate Judiciary Subcommittee on Crime and Terrorism also have probes underway.
The Senate Intelligence Committee launched its review on Jan. 10 — 10 days before Trump took office, and since then, that investigation has expanded in scope, from Russian meddling to possible ties between the Trump campaign and the Kremlin, to the sudden ousting of Comey, and more.
Kushner agreed back in March to appear before the Senate Intelligence Committee regarding his meetings with Kislyak, but it’s not clear when or where or in what form the questioning would happen, and whether Kushner would be under oath.
Until then, Kushner’s being a person of interest isn’t all that interesting.