Lawfare

7 Observations About Jared Kushner’s Statement

The president’s son-in-law apparently thinks he’s pretty safe from investigators. But he threw Don Jr. under the bus.

Senior Advisor to the President Jared Kushner leaves after making a statement at the White House after being interviewed by the Senate Intelligence Committee in Washington on July 24, 2017. / AFP PHOTO / YURI GRIPAS        (Photo credit should read YURI GRIPAS/AFP/Getty Images)
Senior Advisor to the President Jared Kushner leaves after making a statement at the White House after being interviewed by the Senate Intelligence Committee in Washington on July 24, 2017. / AFP PHOTO / YURI GRIPAS (Photo credit should read YURI GRIPAS/AFP/Getty Images)

It is always an important moment the first time in a scandal when we get to hear from the scandal’s subjects — not the allegations against them but their responses to those allegations, not the obligatory comments, no-comments, or denials in the story itself but the subject’s own version of the story. These moments are particularly clarifying when that story comes not in the form of some impulsive reaction — say, an angry presidential tweet — but instead as a carefully prepared presentation, one put together by competent counsel based on an extensive review of the record available to the subject. Such a presentation can be particularly useful when criminal consequences will attach to any knowing lies within it; this can happen either because the subject gives the statement under oath or because he or she gives it under circumstances in which false statements are otherwise barred by federal law.

In such situations, and Jared Kushner’s statement on Monday presents one such situation, we can with reasonable confidence make a few working, though always rebuttable, presumptions:

  • that none of the factual statements contained within it are, to the lawyer’s knowledge anyway, lies;
  • that none of the factual statements contained within it are clearly at odds with the record counsel has reviewed;
  • that the statement constitutes the most favorable construction of the facts possible for the client;
  • and that counsel does not expect any facts to emerge that will render any statement in it provably false.

These are the presumptions with which the careful reader should peruse Kushner’s 11-page statement given today to congressional committees. The document reflects his lawyers’ review of a large volume of emails, phone records, calendar entries, and other documents available to them. It also reflects his memory. It is carefully prepared. And he could face prosecution if any of it is knowingly and intentionally false on a material point.

Kushner’s statement responds more confidently and convincingly on some allegations than on others. And in at least one major area, the statement maintains a conspicuous silence. Given that Kushner’s discussions with the committee on Monday, and others today, were closed, we do not know whether it held up well under questioning. But based on the document alone, here are seven observations about Kushner’s conduct we think are safe to tentatively advance at this stage.

The first notable feature of the document is that Kushner released it at all. Lawyers who believe their clients have potentially serious criminal exposure generally do not let them make public statements to congressional committees, particularly not public statements rife with firm factual claims the record may come to contradict. The very existence of this statement, in other words, is itself a show of confidence to some degree that Kushner — whatever problems he might have — is not in the sort of legal jeopardy which counsels silence. That he was apparently willing to answer questions about these matters from the Senate Intelligence Committee on Monday and the House Intelligence Committee today without asserting his Fifth Amendment rights further suggests his attorneys feel relatively good about their legal position.

Second, Kushner shows particular confidence on matters related to his meetings with Russians during the campaign. He describes what purports to be all of his contacts, certain or possible, with Russian government officials, and disputes some alleged contacts with Russian Ambassador Sergey Kislyak reported by Reuters. He treats all of the contacts as trivial, incidental interactions. As he will be in rather grave potential jeopardy if any evidence of more serious interactions emerges, it’s probably reasonable to expect that he and his lawyers are fairly certain that no more serious interactions will come to light. Notably, Kushner only disavows other contacts or any collusion with a narrow category of individuals — those who were or seemed like they might be representatives of the Russian government. The statement thus leaves some ambiguity about contacts with figures whom a reasonable person in Kushner’s position might be understand as cutouts.

Third, to minimize his own contacts with Russian government representatives, Kushner rather casually throws his brother-in-law Donald Trump Jr. under the bus on the subject of the now-infamous meeting at Trump Tower with the Russian lawyer peddling dirt on Hillary Clinton on behalf of the Russian government. In Kushner’s version of the story, he arrived late and left early — thereby conveniently missing all of the untoward stuff about the dirt; he didn’t read the relevant emails, nor the subject line; and when his lawyers discovered the matter, he disclosed it:

I arrived at the meeting a little late. When I got there, the person who has since been identified as a Russian attorney was talking about the issue of a ban on U.S. adoptions of Russian children. I had no idea why that topic was being raised and quickly determined that my time was not well-spent at this meeting. Reviewing emails recently confirmed my memory that the meeting was a waste of our time and that, in looking for a polite way to leave and get back to my work, I actually emailed an assistant from the meeting after I had been there for ten or so minutes and wrote “Can u pls call me on my cell? Need excuse to get out of meeting.” I had not met the attorney before the meeting nor spoken with her since. I thought nothing more of this short meeting until it came to my attention recently. I did not read or recall this email exchange before it was shown to me by my lawyers when reviewing documents for submission to the committees. No part of the meeting I attended included anything about the campaign, there was no follow up to the meeting that I am aware of, I do not recall how many people were there (or their names), and I have no knowledge of any documents being offered or accepted. Finally, after seeing the email, I disclosed this meeting prior to it being reported in the press on a supplement to my security clearance form, even if that was not required as meeting the definitions of the form.

This strategy of exculpating himself at the expense of his fellows shows up also, albeit in a softer way, during his discussion of his transition contacts with Russian actors. In his account of the December 1 meeting with Kislyak and Lt. Gen. Michael Flynn at Trump Tower, he writes that:

[A]fter pleasantries were exchanged, as I had done in many of the meetings I had and would have with foreign officials, I stated our desire for a fresh start in relations. Also, as I had done in other meetings with foreign officials, I asked Ambassador Kislyak if he would identify the best person (whether the ambassador or someone else) with whom to have direct discussions and who had contact with his President. The fact that I was asking about ways to start a dialogue after Election Day should of course be viewed as strong evidence that I was not aware of one that existed before Election Day [emphasis in original].

Note here that in the bolded passage, Kushner is not denying that a relationship existed before Election Day. He is merely contending that there is “strong evidence” that he was not aware of any relationship that existed before Election Day. He makes a similar move right at the end of the statement, where he declares that “I did not collude, nor know of anyone else in the campaign who colluded, with any foreign government.” This is Kushner’s code for saying that he knows he did nothing wrong but cannot and will not vouch for anyone else. A reasonable reader should conclude that these statements might be stronger were Kushner more confident of the behavior of his fellows.

Fourth, Kushner’s account of the back-channel communications system he proposed to Kislyak during the campaign is more damaging to himself. But again, the fact that he’s willing to talk about it suggests that he does not fear criminal charges related to the subject. And, indeed, his explanation is at least a little bit less bizarre than the news stories that suggested he had proposed a secret ongoing line of communications to get around U.S. intelligence. In Kushner’s telling:

The Ambassador expressed similar sentiments about relations, and then said he especially wanted to address U.S. policy in Syria, and that he wanted to convey information from what he called his “generals.” He said he wanted to provide information that would help inform the new administration. He said the generals could not easily come to the U.S. to convey this information and he asked if there was a secure line in the transition office to conduct a conversation. General Flynn or I explained that there were no such lines. I believed developing a thoughtful approach on Syria was a very high priority given the ongoing humanitarian crisis, and I asked if they had an existing communications channel at his embassy we could use where they would be comfortable transmitting the information they wanted to relay to General Flynn. The Ambassador said that would not be possible and so we all agreed that we would receive this information after the Inauguration. Nothing else occurred. I did not suggest a “secret back channel.” I did not suggest an on-going secret form of communication for then or for when the administration took office. I did not raise the possibility of using the embassy or any other Russian facility for any purpose other than this one possible conversation in the transition period. We did not discuss sanctions.

To be clear, Kushner is admitting here a gross impropriety. The right approach in this situation would have been to call the State Department and ask how to handle a sensitive communication from Russian generals who couldn’t travel to the United States. Proposing the solution he advanced here could not have been better calculated to raise the hairs on the necks of FBI counterintelligence investigators.

Nor does Kushner’s statement address the substantive concerns about his being willing to have such talks at all during the transition period. For the relevant period, President Barack Obama was still the commander-in-chief. Holding talks with foreign governments regarding ongoing military engagements — without any input from or visibility to the Department of Defense — is highly unusual during a transition period. It violates the fundamental rule that the country has one president at a time. Recall that much of the scandal regarding Flynn’s contacts with Kislyak stemmed from concerns that he might have been working to undermine the sanctions policy of the sitting U.S. president.

If Kushner appreciates in retrospect the impropriety, he does not say so, but he and his lawyers have clearly decided to absorb the criticism he will — and should — face for it. They also appear to have decided that there was nothing criminal in the impropriety, and thus it is better to put out there so he can take the heat and move on.

Fifth, Kushner’s explanation of his meeting with a Russian banker close to Putin, by contrast, is actually reassuring. There has been a lot of speculation that this meeting was really about Kushner’s business. This had a menacing edge because the banker in question, Sergey Gorkov, is known to be close to Putin, so the idea of his lending money to Kushner or doing business with him raised obvious national security concerns — much as the payments to Flynn continue to.

But on this point, Kushner claims that Gorkov appeared not in his capacity as a banker but as an emissary from the Russian president and that they did not discuss business matters at all:

My assistant reported that the Ambassador had requested that I meet with a person named Sergey Gorkov who he said was a banker and someone with a direct line to the Russian President who could give insight into how Putin was viewing the new administration and best ways to work together. I agreed to meet Mr. Gorkov because the Ambassador has been so insistent, said he had a direct relationship with the President, and because Mr. Gorkov was only in New York for a couple days. I made room on my schedule for the meeting that occurred the next day, on December 13.

The meeting with Mr. Gorkov lasted twenty to twenty-five minutes. He introduced himself and gave me two gifts — one was a piece of art from Nvgorod, the village where my grandparents were from in Belarus, and the other was a bag of dirt from that same village. (Any notion that I tried to conceal this meeting or that I took it thinking it was in my capacity as a businessman is false. In fact, I gave my assistant these gifts to formally register them with the transition office). After that, he told me a little about his bank and made some statements about the Russian economy. He said that he was friendly with President Putin, expressed disappointment with U.S.-Russia relations under President Obama and hopes for a better relationship in the future. As I did at the meeting with Ambassador Kislyak, I expressed the same sentiments I had with other foreign officials I met. There were no specific policies discussed. We had no discussion about the sanctions imposed by the Obama Administration. At no time was there any discussion about my companies, business transactions, real estate projects, loans, banking arrangements or any private business of any kind. At the end of the short meeting, we thanked each other and I went on to other meetings. I did not know or have any contact with Mr. Gorkov before that meeting, and I have had no reason to connect with him since.

Sixth, Kushner’s account of his security clearance forms describes, at best, a terribly careless process. In his account, he didn’t lie on his SF-86 form. An underling submitted it prematurely before it contained not just Russian but any foreign contact information. He then quickly notified the transition office that it needed to be supplemented but took many months to do so completely.

This is remarkably bad management. The Trump administration blames L’Affaire Russe on media obsessions and bias, but at least as far as Kushner goes — and this by his own account — it’s largely a function of his failure over time to correct his own errors. After all, had each incremental development in the scandal not contradicted his SF-86 (assuming, of course, that his underlying narrative is accurate) the scandal would never have developed as it has. “Kushner Met with Russian Ambassador as Disclosed on His Clearance Forms” just isn’t much of a headline.

The degree of carelessness with which Kushner apparently approached his SF-86 also reveals the perils of nepotism. Of course, mistakes happen. But most people fill out the SF-86 as if their job depends on getting it right. This is because for most people, their jobs do depend on their getting it right. Evidently, that assumption does not hold when you’re married to the president’s daughter. Kushner showed the care of an individual confident he would not face any consequences for many errors uncorrected over a long period of time, and indeed, he hasn’t.

Finally, there’s at least one big area that is not discussed at all in Kushner’s statement. That is the question of the Trump campaign’s and Cambridge Analytica’s use of data analytics to target voters and the apparent micro-targeting of voters in key swing states by Russian trolls and bots. This is a matter of ongoing concern to the Senate Intelligence Committee, as Vice Chairman Mark Warner said recently on CBS’s Face the Nation:

John Dickerson (host): You- Another area that it appears you’re interested in is the data operation of the Trump campaign, which Jared Kushner was overseeing. Explain that. And is that, again, another extrapolation? Or do you have some evidence for that inquiry?

Sen. Mark Warner: Well, we do know that there was a series of Russian trolls, paid individuals, who worked for the Russian services that were trying to interfere and put fake news out. We also know they created what’s called bots. In effect, internet robots that actually could interfere as well.

The question we have is: Did they somehow get information from some of the Trump campaign efforts to target that interference? We don’t know that for sure. But what we do want to know is — I’d like to talk to the folks with Cambridge Analytica. I’d like to talk to some of the folks from the Trump digital campaign.

We do know as well that Facebook, for example, that denied any responsibility during our election, by the time the French elections took place this past spring, they literally took down 30,000 fake sites. So they have in effect got religion about the need to police fake news.

We also know that Twitter — it’s been reported that literally 8 percent of the Twitter accounts are fake. So those accounts can be manipulated as well. I’d like not to re-litigate 2016. But I think the whole role of these social media platforms, in terms of disseminating fake news, is a policy question that we’re going to have to address.

Kushner did nothing to reassure on this point for reasons that are unclear.

All in all, Kushner did himself some good with this statement. Without seeing how he held up under examination from skeptical Senate staffers, it is hard to know how much good. But narrowing the field of contested facts is critical to isolating the signal from the noise in this sprawling scandal. Kushner’s statement is one small step in that direction. Putting an end to L’Affaire Russe will take many more, much larger steps from many other people — including President Donald Trump himself.

Photo credit: YURI GRIPAS/AFP/Getty Images

Susan Hennessey is managing editor of Lawfare. @susan_hennessey
Benjamin Wittes is editor in chief of Lawfare. @benjaminwittes

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