Kushner’s back channel to Russia raises legal issues
Trump’s son-in-law had no formal position when he set up arrangement
“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.”