Jared Kushner’s alleged discussions with Russia’s ambassador about potentially establishing backchannel communications during the transition would have been viewed as not only highly improper but possibly even illegal, according to former national security officials.
President Donald Trump’s team on Saturday tried to downplay reports from the Washington Post and others that ambassador Sergey Kislyak told his superiors that Kushner, Trump’s son-in-law and top adviser, made the proposal during an early December meeting and suggested using Russian diplomatic facilities for the clandestine communications. It appears the backchannel was never set up.
“We have backchannel communications with a number of countries,” Trump’s national security adviser, H.R. McMaster, told American reporters traveling with Trump at the G7 summit in Sicily. “What that allows you to do is communicate in a discreet manner, so I’m not concerned.”
Former national security officials who spoke with POLITICO on Saturday were not so dismissive.
Many said that while presidents often set up backchannel communications with various countries, it’s neither wise nor normal for a president-elect to set up such continuing contact before the inauguration, despite likely pressure from foreign countries.
Also, the idea of using the equipment of a foreign country, especially an adversary such as Russia, would be acutely alarming.
“If candidate Trump, a private citizen, had a backchannel that would be very serious,” said Bill Smullen, who served as chief of staff to former Secretary of State Colin Powell in the administration of George W. Bush. “He had no business.”
A former senior State Department official said there’s a high likelihood that the Russians pushed Trump’s transition team to set up clandestine communications — and that Trump’s aides should have said no.
“Invariably, foreign governments will try to establish a continuing contact with a new president-elect as soon as the November election result is in,” said the official, who asked not to be named because of the official’s past communications with Trump’s team. “My advice has been to respond ‘Thanks a lot, we look forward to being in touch with you after January 20th.’”
The new allegations add to the deepening scandal regarding Trump and ties between his campaign and Russian leaders, who have been accused by U.S. intelligence officials of trying to tip the election Trump’s ways.
While much of the attention has been on former national security adviser Michael Flynn, increased scrutiny is being placed on Kushner, who reportedly failed to disclose the extent of his contacts with Russian officials during and after the campaign.
But the allegation that Kushner — with Flynn in the room — discussed setting up clandestine communications with Russian officials during the transition marks some of the damaging accusations to date.
National security officials who worked in the Obama administration were particularly concerned by the reports, which indicate Trump’s aides were trying to avoid having Obama officials overhear their conversations with the Russians.
“What could the Trump transition team not have the U.S. government hear them saying?” said Ned Price, a former CIA officer and National Security Council spokesman in the Obama administration. “Obviously this is improper and may have been illegal. … You don’t have an innocuous explanation for this. You can’t attribute this to carelessness.”
“The fact that they would want to hide it not just from the U.S. public but the U.S. government is unusual, and then they would want to embed the channel inside the Russian intelligence apparatus, if true, is entirely shocking and unprecedented,” said Evelyn Farkas, the former deputy assistant secretary of defense for Russia, Ukraine and Eurasia under the Obama administration. “It’s beyond improper.”
It’s unclear what the consequences could be for Kushner and others if the reports are proven true. At a minimum, the allegations pose a major political problem that could endanger Kushner’s White House role and could fuel impeachment talk for Trump.
On the more severe side, such communications could test the Logan Act, a largely dormant statute that bans private citizens from interfering with U.S. diplomatic relations.
In general, backchannel communication between heads of state and their surrogates has a long history, but what sets this situation apart is that the discussions allegedly took place before Trump took office and were meant to circumvent the official channels of the administration that remained in power.
“Back channels are a tried and true form of secret diplomacy,” according to Peter Kornbluh, a researcher at the National Security Archive at George Washington University and co-author of the recent book Back Channel to Cuba.
For example, “Bobby Kennedy became personal and trusted emissary of his brother President Kennedy probably at the most critical and dangerous time in modern history,” during the 1962 Cuban missile crisis with the Soviet Union, he said. “President Nixon used one in the opening to China. There were back channels to [Communist leader] Ho Chi Minh during the Vietnam War. Every president from Eisenhower to Obama used a back channel to approach Fidel Castro in Cuba and his brother Raul.”
But the key question in this case is when Trump or his aides may have discussed such communications with Putin and other Russian leaders, Kornbluh and others said — and for what purpose.
“What distinguishes Trump is he wasn’t president when they tried to set it up,” Kornbluh said. “With the cloud of the Russian scandal hanging over his head, it is not clear why he would want to cut everybody out. The question that is not being posed much by the press so far is whether Kushner and Flynn were acting alone. Usually the president has known about these back channels because he initiated them.”
Smullen, Powell’s former chief of staff, agreed with that analysis.
“Backchannels are very common. People have used them all the time. They can be a safety valve for things that can be explosive,” said Smullen, who recalled such efforts with the Soviets when he was an aide to Admiral William Crowe, the chairman of the Joint Chiefs of Staff, during the Cold war.
Smullen added that President Trump has every right to have a backchannel, but President-elect Trump would not.
Still others urged caution, saying this latest controversy could be part of a more advanced Russian plot, especially because the Washington Post report cited intelligence reports in which Kislyak talked with his superiors about Kushner’s alleged proposal.
“Typically, the Russian clandestine subversion specialists, being the best in the world in this demonical art form, operate in double, triple and sometimes multiple tactical plot lines,” said the former State Department official. “For example, in the media report … that the U.S. has intercepted a message from Kislyak to the Kremlin saying that Kushner had proposed a backchannel connection during the transition period, it has to be understood that Kislyak knows perfectly well that all his communications are being intercepted by the U.S.”