Has Dermer legally entangled Kushner, Trump?
Israeli ambassador to US confirms he was in touch with US negotiator to torpedo 2016 UN resolution
Ambassador Ron Dermer on Monday told Politico what everyone pretty much already knew: that he was in contact with Jared Kushner to try to torpedo the December 2016 UN Security Council Resolution against Israeli settlements.
If everyone knew this, how could this further legally entangle Kushner and maybe even US President Donald Trump?
The big wild cards in all of this are the Logan Act and how much Kushner and Trump might have tried to cover up any contacts that they had or authorized with Russia.
The new piece provided by Dermer is whether his going on record may provide key pieces to the puzzle of questions confronting the probe.
Dermer’s coming forward may also put him in the awkward position of having to decide whether to comply with a potential future request by US prosecutors to serve as a fact-witness on the issue.
The Logan Act, legislated in 1799, makes it illegal for any citizen – even a president-elect and his staff prior to his inauguration – to tamper with the diplomatic policies of a current government and its acting president through interactions with foreign governments.
So was it illegal for Trump’s ex-US national security council chief Michael Flynn to try to convince Russia to delay the December 2016 UN vote – which Flynn has admitted doing as of last week’s plea bargain that he cut with US prosecutors?
If yes, then was it illegal for Kushner to direct or approve Flynn’s undertaking of these actions, as has been implied by a number of news reports? And If Trump was involved, did he break the law?
Let’s unpack some of these questions.
First, no one knows whether the Logan Act can actually be used to successfully prosecute someone in court because it has never been used, so there is no precedent. Secondly, according to modern court decisions, it unconstitutionally restricts free speech.
But many scholars have said it does apply, and that Flynn and anyone who directed him would be guilty of violating the law.
Assuming these scholars are right, the big question for US prosecutors going after Kushner would be whether they can prove exactly what he did and what his intent was.
Presumably, Flynn will provide part of this picture, but he may only have the view of the official in the field reporting back to Kushner.
In contrast, Dermer’s statements to Politico indicate that he “definitely spoke to officials” who joined the Trump administration, “in the hope they would help us avert what would be bad for Israel and bad for the US.”
In other words, Dermer, who many reports and past statements have shown is close to Kushner, may have met with Kushner earlier to strategize.
Dermer reportedly had been a key go-between for Prime Minister Benjamin Netanyahu with Republican officials under the Obama administration, including possibly having a large hand in developing strategy for the prime minister’s famous 2015 speech to Congress against the Iran nuclear deal.
Might this mean that Dermer could possibly provide unique insight into understanding Kushner’s intent regarding campaigning with foreign governments like Russia against the UN vote?
What if Dermer had had direct contact with Trump himself regarding the issue?
Some fascinating questions could then ensue about his diplomatic immunity, especially since Dermer spent most of his life as a US citizen – even though top Israeli officials must waive their US citizenship.
But whatever his status – and whether or not he chooses to waive any immunities – his public admission of his role in the events underlying the case could give momentum to force him to testify as a fact-witness, which might not have been the case if he had said nothing.
What Dermer could reveal is certainly more important now, because the Russian ambassador who Flynn spoke to has since died and cannot reveal anything.
All of this could also potentially uncover instances where Kushner or Trump might have told less to US prosecutors in the past – or might tell them less now – about their involvement with Russians.
But isn’t Trump immune? Why can’t he just say that he was expressing his opposition to administration policies just like he did throughout the election and the transition period?
Trump himself argued this in February, according to Fox News, saying that Flynn was “doing his job”, Trump saying that “[I] would have directed him to do it if I thought he wasn’t doing it. I didn’t direct him, but I would have.”
This comes back to the Logan Act.
Is there a difference between Trump tweeting against Obama administration policies, and Kushner or Trump ordering Flynn to actively engage foreign countries to undermine those policies? And if Kushner or Trump lied about their roles would that put them into the perjury corner?
There are many ambiguities. What is clear from Dermer’s statement is that he would have had an easier time staying out of the legal storm if he had publicly said nothing.
By going on record – even if he himself did not commit any crimes – he may have put himself into play as a possible fact-witness against Kushner or Trump.