Once again, the Trump administration is playing word games to spin out a defense that entirely misses the point of the underlying problem.
The problem this time is Jared Kushner’s attempt to hide dealings with Russia from the United States government.
The Washington Post reported last Friday that Kushner and Michael Flynn discussed the possibility of setting up “a secret and secure communications channel between Trump’s transition team and the Kremlin, using Russian diplomatic facilities in an apparent move to shield their pre-inauguration discussions from monitoring, according to U.S. officials briefed on intelligence reports.”
Press reports described the proposed secret line of communication as a “backchannel.”
Trump’s apologists jumped on the word “backchannel” and defended that word, not the substance of what Kushner had done. The press cooperated in this diversion by dutifully cataloging instances in American history when United States presidents used backchannel communications to alter history, sometimes for the better.
On one of the Sunday talk shows, the Trump administration trotted out poor John Kelly, the Homeland Security Secretary, to once again tarnish his previously gold-plated reputation in the service of the latest example of Trump’s refusal, or perhaps inability, to deal with the true substance of a scandal within his inner circle.
Kelly defended the form of Kushner’s secret communications with the Russians, not the substance of Kushner’s actions. He deemed it “normal” and “acceptable” to communicate with a foreign power through a back channel. “Any way that you can communicate with people, particularly organizations that are maybe not particularly friendly to us is a good thing.” Any channel of communications, “back or otherwise, is a good thing,” Kelly said on “Fox News Sunday.”
National Security Advisor H.R. McMaster similarly continued to squander the reputation he had earned through years of valuable service. He pretended to defend Kushner on the narrow ground that backchannel communications, in and of themselves, can be useful tools of government. “We have back-channel communications with a number of countries,” said McMaster. “What that allows you to do is communicate in a discreet manner, so I’m not concerned.”
None of this, however, even begins to excuse Kushner’s conduct. The issue here is not whether backchannel communications can be an appropriate and useful tool for governments to conduct diplomatic relations.
The backchannel tool, in and of itself, is neither good nor bad, moral nor immoral, appropriate nor inappropriate, legal nor illegal.
Those distinctions can only be made by looking at the full context of the communication. Who is setting up the backchannel communication? With whom? By what means? To what end? Under what governmental authority? From whom are they trying to hide it?
In this case, Jared Kushner was attempting to set up a backchannel to Russia as a private citizen. Donald Trump was not yet president, and Kushner had not even been designated for a formal role in the upcoming Trump administration. The “you” in McMaster’s observation about how backchannel communications “allow you” to communicate “in a discrete manner” makes sense only to the extent that “you” refers to a government actor, not a private citizen outside of government.
Historical references to the use of backchannel communications by JFK or Richard Nixon are red herrings. They neither excuse nor explain Kushner’s conduct. Jared was not a president, and neither was his sponsor, Donald Trump. True, Trump was the president-elect, so it is perfectly understandable that a member of his transition team would be setting up lines of communication with foreign powers.
But as a private citizen, even one who has a role in a presidential transition, attempting to set up a secret line of communications with a foreign power is another thing. Especially when the purpose of setting up a backchannel is to keep the communications secret from the United States government.
Comparing Kushner’s conduct here with that of previous presidents is obscene.
And there can be no doubt that in this case, Kushner’s (and Flynn’s) purpose was not to further some objective of the government, but to subvert it. Why else would they try to use secure Russian communications facilities, the ones the Russians use to spy on the United States, to establish this channel of communications?
And what about the intended subject matter of these secret communications? We don’t know exactly what Kushner and Flynn intended to communicate through this secret channel, but they claim that it had something to do with Syria.
At the time, the United States and Russia were in the midst of a serious dispute about Syria. The United States was primarily concerned with the defeat of ISIS, and believed that no workable solution could be achieved while Syrian President Bashar al-Assad remained in power. Russia, on the other hand, was Assad’s primary backer, and was actively using its diplomatic and military power to keep Assad in office.
Going to unprecedented lengths to open a secret line of communications with Russia regarding Syria stinks of intention to undermine government policy. That would probably be a violation of the Logan Act, which prohibits private citizens from negotiating with foreign governments in a dispute with the United States.
Legal commentators, most notably Alan Dershowitz, have argued recently that the Logan act is a relic of a bygone era that can no longer be used as a basis for bringing criminal charges.
Maybe so. But even if criminal charges could not be brought successfully, isn’t it still a serious problem that a key member of Trump’s administration might have committed a blatant violation of a statute that prohibits private persons from interfering with United States foreign policy? And while the Logan Act may have been enacted initially over 200 years ago, it is not entirely a dead-letter relic. After all, Congress amended the Logan Act as recently as 1994, hardly proof that our government doesn’t take the Act seriously.
More importantly, even if the government may not be able to send Kushner to jail for violating the Logan Act, that doesn’t mean that his conduct should not be subjected to critical scrutiny. Unless, that is, the new standard is that if it doesn’t land you in jail, it’s OK. Hopefully we haven’t sunk that low, even in the Age of Trump.
But forget the Logan Act if it makes your head spin. Just look at the known facts:
The president-elect’s 36-year-old son-in-law, who has absolutely no government or diplomatic experience, attempted to secretly use Russia’s intelligence communications network to conduct secret discussions with the Kremlin about an active dispute between Russia and the United States, and did so in a manner intended to be hidden from the United States government and its intelligence agencies.
Does the Secretary of Homeland Security really think that’s “a good thing?” God help us if he does.
Backchannel communications may indeed be a “good thing” when wisely used by a government in service of its foreign policy and security goals. But that doesn’t mean that all backchannel communications are defensible. Especially secret lines of communications set up by private, non-government actors who, in addition to quasi-official interests as part of a transition team, also have private financial interests at stake.
Kushner’s attempt to set up a communications channel specifically designed to be kept secret from the United States government, and likely intended to undermine government policy, is at best conduct that demands careful investigation by both congressional and law enforcement authorities.
And if Trump was complicit in it, as appears likely, it could well be a predicate act of an impeachable offense.
Philip Rotner is an attorney and an engaged citizen who has spent over 40 years practicing law. His views are his own and do not reflect the views of any organization with which he has been associated. Follow him on Twitter at @PhilipRotner.