Back channels

Jared Kushner, President Trump’s son-in-law and key adviser, is reported to have tried to set up a secret “back channel” with the Russians, using Russian communications and circumventing US intelligence agencies and the National Security Council. Is there something wrong with that?

Not necessarily. The president can set up pretty much any channel he wants. President Obama set up a secret channel with Cuba in preparation for normalizing diplomatic relations. He also set up a secret channel with Iran in preparation for the nuclear deal. Both these were kept hidden not only from the American people, but also from most of the bureaucracy, in particular much of the State Department. I don’t know about the intelligence agencies. It’s not smart to try to keep anything from them, as they may well pick up traces of it and blow a back channel the president values.

First problem: Trump wasn’t yet president when Kushner’s effort allegedly took place in early December. That makes it more analogous to the allegations against Ronald Reagan, who some allege encouraged the Iranians via a back channel to hold on to the American hostages captured in 1979 until he took the oath of office in January 1980. Those allegations have not been proven.

Second problem: It is illegal for US citizens to negotiate with foreign powers in a dispute with the United States, but the 1799 Logan Act has only once led to an indictment and no one has been successfully prosecuted. So that is an unlikely legal course of action, especially as the Russians seem to have rejected Kushner’s overture, unless the overture itself is regarded as the opening of a negotiation.

Third problem: A lot will depend on what Kushner wanted to use the channel for. Many of us–I count myself in this category–are coming to believe that both Kushner’s companies and Trump’s are heavily dependent on Russian investment in, and purchases of, real estate. I’m no lawyer, but my understanding is that American companies are required to do due diligence on investors and purchasers to ensure that their assets are not derived from criminal activity. Clean Russian assets of the size Trump needed after his bankruptcies, and that Kushner needed for his big deals, have got to be pretty rare.

So questions become: was the due diligence adequate? If not, were the Russians blackmailing Kushner or Trump, thus making a secret communications channel desirable even before January 20? Was the back channel being set up to negotiate improved conditions for Kushner or Trump companies, perhaps in exchange for support for Russian ambitions in Ukraine or Syria once Trump was in office? There are many other possibilities, but few of them are savory and some of them are downright malevolent. All are speculative and unproven at this point.

Fourth problem: Now that a serious Special Counsel has been appointed, we can expect the FBI to examine Trump’s and Kushner’s personal and campaign finances with a fine tooth comb. Trump will react to that angrily, obfuscating where he can and trying to disrupt and divert the investigation by throwing in other issues, in particular the leaks that Trump seems unable to stop despite his many threats. The effort at coverup may turn out to be just as important as the intended uses of the back channel. That’s certainly what happened in the Watergate case: the break-in was a problem, but the cover-up was a full-blown crisis that would have led to impeachment, hence Nixon’s resignation.

Nothing can lead to impeachment so long as the House Republicans remain loyal to a president they dislike and even despise. There is no telling how long that will last, but the smart money is betting at least through the 2018 election. It is just impossible to predict which straw will break the camel’s back. In Bill Clinton’s case, it was lying about Monica Lewinski, after years of far more serious allegations (none of which panned out). Trump has already survived far more than anyone would have predicted. He may well survive much more.

Or not. No telling. But Kushner’s back channel isn’t going away any time soon.