OPINION | Kushner is safe if White House contains scandal, but can it?

Jared Kushner, the president’s son-in-law and top adviser, holds the unenviable position of being the designated defendant of choice in the media. While the Russian meeting arranged with Donald Trump Jr. has been widely denounced, Trump Jr. is a private citizen. Kushner is a government official facing an array of allegations, ranging from his own participation in the meeting to his baffling failure to remember an array of meetings with Russian figures. That raises a good-faith basis for investigation, though criminal allegations have been greatly overblown on the existing facts.

Kushner has had to refile his security clearance twice already, due to his omissions of significant meetings with Russians. One meeting involved both Kushner and Michael Flynn with Sergey Kislyak, the Russian ambassador to the United States. That was the meeting where Kushner allegedly suggested the creation of a secret back channel of communication through Russian diplomatic facilities.

{mosads}Kushner also participated in a meeting with Sergey Gorkov, the head of Vnesheconombank, a Russian bank that was the subject of U.S. sanctions. Gorkov is a graduate of Russia’s spy school, known as the Academy of the Federal Security Service. These are clearly meetings that should have been included in his classification form, and frankly, they should have stood out in Kushner’s memory when asked about interactions with foreigners.

I have already discussed how claims of treason and criminal election violations are not just wildly out of sync with existing case law, but dangerous expansions of criminal law. We are living in the age of rage, when no cost seems too great to pay for an indictment of a Trump. That apparently includes expanding the definition of treason or making the receipt of information from any foreigner into a federal crime. Likewise, key elements of obstruction are conspicuously absent on the current facts. Fortunately, such radical expansions of our criminal code would face substantial opposition in the courts, particularly by First Amendment advocates.

Kushner’s greatest risk is a possible charge of false statements to federal investigators under laws like 18 U.S.C. 1001. The key elements for this crime are simple and straightforward, which is why criminal defense counsels fear this charge more than most in an indictment. The prosecutors must show that Kushner made a false or fictitious or fraudulent statement of a material fact. This can include writings which create a false account. While the statement must done knowingly and willfully, that remains a jury question based on their view of the facts of the case.

Many jurors may be skeptical that even a busy person like Kushner would forget so many meetings with Russians, particularly a meeting billed as conveying information from the Kremlin to incriminate Hillary Clinton. Prosecutors do not need to show that the statement was falsely made with an intent to defraud. It is enough, as the Fifth Circuit has stated, that it is “made with an intent to deceive, a design to induce belief in the falsity or to mislead,” as opposed to an intent to deprive someone of something by means of deceit. There is also no need to prove “evil intent” — simply that the statement was made deliberately and knowingly.

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.

The most common response to the Kushner omissions is not criminal, but administrative. Kushner appears to have only provisional or temporary access to classified information. In most cases, these omissions would likely have led to the denial of a 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. That expansion allows investigators more justification in exploring prior relationships and transactions from tax filings to loan deals. Kushner has reportedly sought loans from various foreign sources, and those transactions could come under increasing review.

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.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University.

The views expressed by contributors are their own and are not the views of The Hill.