Tuesday, July 18, 2017

Kushner's Dilemma

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.

  Jonathan Turley
And THAT's the trouble with Washington (and its associates, such as Wall Street). They get away with shit. Illegal shit. Unethical shit.
In most cases, these omissions would likely have led to the denial of a [security] 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.
Yes, I imagine Mueller's folks are going to be all up in Kushner's grill.
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.
That would be the hottest show in town.

...but hey, do what you want...you will anyway.

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