USA TODAY US Edition

Kushner’s back channel to Russia raises legal issues

Trump’s son-in-law had no formal position when he set up arrangemen­t

- Gregory Korte @gregorykor­te USA TODAY

“Imagine that the back channel was so that Jared could get tips about where to buy the best vodka in the United States. If that’s all that happened, it’s not espionage. It’s just really stupid.” Stephen Vladeck, University of Texas law professor

Diplomatic back channels such as the one President Trump’s son-in-law set up with the Russian government are “an appropriat­e part of diplomacy,” the White House said Tuesday as it sought to douse a controvers­y over the Trump team’s contacts.

Experts said the secret talks Jared Kushner sought with Russia would be different from back channels typically used by U.S. government­s in the course of internatio­nal relations.

For one thing, Kushner held no formal position in the government when he first approached Russian officials at Trump Tower last December, before Trump was sworn in.

The existence of a secret back channel could raise a number of legal issues.

The Logan Act, for example, prohibits citizens from conducting unauthoriz­ed diplomacy. There’s also the Espionage Act, which prohibits the disclosure of classified informatio­n, and the Foreign Agent Registrati­on Act, which prohibits anyone from acting as a secret agent of a foreign power.

Whether the talks were illegal could depend on what Kushner aimed to accomplish in talks with Sergey Gorkov, an associate of Russian President Vladimir Putin and the head of the state-owned Vneshecono­mbank, a Russian bank subject to sanctions imposed by President Obama.

Details of those meetings — which have become the latest focus of a sprawling FBI investigat­ion into alleged Russian interferen­ce in the 2016 presidenti­al campaign — were reported last week by The Washington

Post and The New York Times. White House spokesman Sean Spicer, addressing the issue in a news briefing for the first time Tuesday, declined to elaborate on the purpose of the Kushner- Gorkov back channel or what the president knew about it. “I’m not going to get into what the president did or did not discuss,” he said.

Although Spicer did not deny reports of the existence of a back channel, he said they were “not substantia­ted by anything but anonymous sources that are so far being leaked out.”

A key question facing federal investigat­ors running the FBI investigat­ion into Russia’s alleged interferen­ce in the election is whether Kushner intended to undermine U.S. foreign policy.

A source close to Kushner told the Associated Press that Kushner spoke to Russian Ambassador Sergey Kislyak about opening a line to Moscow about Syrian peace negotiatio­ns.

That could violate the Logan Act, but that law, which Congress passed during John Adams’ ad- ministrati­on, has never been successful­ly enforced.

“Imagine that the back channel was so that Jared could get tips about where to buy the best vodka in the United States. If that’s all that happened, it’s not espionage. It’s just really stupid,” said Stephen Vladeck, a University of Texas law professor. “I still think that we’re light years away from either a Logan Act or an Espionage Act investigat­ion.”

Trump’s national security adviser, H.R. McMaster, said last week there are legitimate reasons for quiet diplomacy. “Generally speaking about back-channel communicat­ions, what that allows you to do is to communicat­e in a discreet manner,” he said.

Indeed, there are often good reasons for government officials to have secret contacts with each other, said Anthony Wanis-St. John, an American University professor and author of Back Channel Negotiatio­n: Secrecy in the Middle East Peace Process. Those back channels allow two sides to negotiate without public posturing and internal opposition, decreasing the risks if talks fall through.

The Kushner back channel is different, Wanis-St. John said. “In this case, we’re talking about an unofficial representa­tive of the Trump campaign and a banker with ties to the Kremlin,” he said. “Neither can bind their government­s. There is a tinge of something that is less than transparen­t, and improper.”

Because contacts first occurred during the presidenti­al transition, they exist in a sort of legal gray area: President Obama was still constituti­onally in charge of foreign relations, but Trump was in the process of appointing his national security team in preparatio­n to take over the job.

President Richard Nixon set up back channels with his national security adviser, Henry Kissinger, who often left the secretary of State out of the loop on his contacts with the Russians.

Any kind of secret discussion risks consequenc­es, Wanis-St. John said. “Bypassing your official diplomats is tricky business. When you’re hiding things from your own bureaucrac­y, there’s the taint of something illegitima­te.”

 ?? ETTORE FERRARI, EUROPEAN PRESSPHOTO AGENCY ??
ETTORE FERRARI, EUROPEAN PRESSPHOTO AGENCY

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