Here’s how Jared Kushner could lose his security clearance

Kushner may have misrepresented his connections with the Russian government on official documentation.

Jared Kushner observes a meeting in Saudi Arabia. CREDIT: AP Photo/Evan Vucci
Jared Kushner observes a meeting in Saudi Arabia. CREDIT: AP Photo/Evan Vucci

Late Friday evening, the Washington Post reported that then-President-elect Donald Trump’s son-in-law, Jared Kushner, talked to Russian ambassador Sergey Kislyak in December at Trump Tower about establishing a “secret and secure communications channel between Trump’s transition team and the Kremlin.”

Kushner proposed using Russian diplomatic facilities at the Russian Embassy to attempt to shield the talks from U.S. monitoring prior to Trump’s inauguration, according to the Post. The White House only disclosed the meeting in March, and then downplayed it. Also on Friday night, Reuters reported on three previously undisclosed contacts Kushner had with the Russian ambassador during and after the campaign.

Kushner’s goal, it seems, would have been to set up a secure backchannel to the Kremlin to avoid leaks — however according to the Post, past transition officials would have avoided such a proposal over fear of leaks from the Russians. For incoming presidential administration staff, American intelligence officials are fully capable of setting up secure connections to Russian officials.

The fact that U.S. intelligence agencies agree that Russia had just effectively influenced the 2016 presidential election makes the desire to secretly confer with Russian officials seem even more suspicious.

This was part of the reason why officials interviewed by the Post said Kushner wanted to set up the secret line: “Kushner conveyed to the Russians that he was aware that it would be politically sensitive to meet publicly, but it was necessary for the Trump team to be able to continue their communication with Russian government officials.”

Investigators are also looking into separate meetings Kushner had with Sergey Gorkov, the head of a Russian bank currently under U.S. sanctions due to Russia’s aggression in Crimea and the Ukraine. Kushner’s company, at the time, was looking for investors to redevelop a Manhattan office building he had purchased.

Kushner may be criticized for a lack of experience in foreign policy and national security, but former General Michael Flynn was also at the meeting with the ambassador, the Post reported. Flynn was fired as Trump’s National Security Advisor within weeks of the inauguration for lying to the Vice President about his contacts with the Russian ambassador.

Kushner’s security clearance

When he applied for his top-secret security clearance for his White House job, Kushner was required to disclose all meetings with foreign government officials over the previous seven years but omitted dozens of contacts — including this meeting.

When questioned about it, his lawyers called it an error.

A top presidential aide simply forgetting a meeting such as this strains the bounds of credulity. As Rep. Ted Lieu (D-CA) noted, Kushner did not just omit the meeting once on his SF86 security clearance form. He also failed to include it again on his revised form, which Lieu argued would be two separate federal crimes. In a tweet, Lieu showed the certification that everyone must sign to get clearance, acknowledging the consequences that willful false statements can bring, including jail time.

Rep. Lieu called for Kushner to resign if the story is true, and said he should be prosecuted for lying on his security clearance form. Rep. Jerry Nadler (D-NY) said Kushner’s clearance “must be revoked until we get to the bottom of this.”

Knowingly falsifying or concealing information on these forms can carry up to five years of jail time.

Malcolm Nance, a career counterintelligence officer, said on MSNBC Friday night that this kind of activity is indicative of espionage.

It is not unheard-of for White House aides to lose their security clearances. Adam Lovinger, a career national security official who moved to the National Security Council from the Pentagon at Flynn’s request, lost his security clearance at the request of Defense Secretary James Mattis’ chief of staff.

Kushner is actually operating under an interim clearance as he gathers information for the FBI, the New York Times reported in April. Rep. Lieu and Rep. Donald Beyer (D-VA) sent a letter in April to the director of the National Background Investigations Bureau at the U.S. Office of Personnel Management (OPM) requesting for Kushner’s interim top-secret security clearance to be suspended (pending a review) due to his failure to disclose his meetings with Russia on his SF-86 form. OPM does not appear to have responded to their letter, and because the agency reports to the president, it is unlikely that Lieu and Beyer’s request will be granted.

A security clearance can be revoked at any time, as multiple practical guides to maintaining such clearances state. Criteria for revoking an existing clearance include “foreign influence,” meaning the individual has association with foreign citizens or business interests that risk coercion by foreign governments.

The question of who is the final arbiter of whether a clearance gets revoked is murkier. Much of the decision-making authority for the revocation and adjudication of Sensitive Compartmentalized Information (SCI) processes has been centralized into the Office of the Director of National Intelligence (DNI), per an executive order signed by former President George W. Bush in 2008. The order states that the DNI “shall direct the oversight of investigations and determinations of eligibility for access to classified information or eligibility to hold a sensitive position made by any agency.” Dan Coats, appointed by Trump early this year, is the current DNI. But as commander-in chief, the president has “authority to establish the standards for access to classified national security information” according to a Congressional Research Service report. And presidents can easily modify or rescind executive orders, and can fire staff at any time, as Trump has demonstrated multiple times in his short presidency.

Donald Trump, Mike Pence, and Reince Preibus had denied for months that the Trump campaign had any contact with Russian officials. That turned out to be inaccurate, as at least four campaign advisors, including now-Attorney General Jeff Sessions and former National Security Advisor Michael Flynn, failed to disclose meetings with the Russian ambassador during the campaign and transition period. Last week Reuters reported there were at least 18 undisclosed contacts between the Trump campaign and Russian officials. Many of these contacts were reportedly between Flynn and Kislyak, as an attempt to bypass the American national security apparatus and create a secret backchannel between Trump and Putin. These contacts are currently being investigated by the FBI and congressional oversight committees.

Kushner was a central figure in the campaign, as laid out in this thread by Max Mergmann, a senior fellow at the Center for American Progress.

In the White House, he has also reportedly been a strong voice both for firing FBI Director James Comey in the midst of the agency’s Russia investigation and mounting a counterattack to the Justice Department’s decision to appoint a special prosecutor to oversee the investigation into a possible Russian collusion.

In a briefing on the final day of Trump’s trip abroad, National Security Advisor H.R. McMaster defended the general concept of backchannel communications with other countries on the basis of discretion. However he would not comment on the report about Kushner’s meeting and any request to use the Russian Embassy to secretly talk to the Kremlin. McMaster said a back channel to Russia is “not something I’ve been involved with or have any knowledge of.”

Top White House aide Gary Cohn said at the same briefing that they would not be commenting on Kushner.

The president returns to the United States on Saturday, and there is some talk he will be firing several White House staff when he returns. However, the targets are reportedly those who leaked classified information the White House did not want released — not those who omit key information on security clearance forms or set up secret backchannels to the Kremlin.