The revelation that Donald Trump Jr. met with a Russian lawyer to try to obtain incriminating information about Hillary Clinton has sparked another round of analysis on the technicalities of criminal law. Specifically, legal experts are focused on whether Jared Kushner, a White House adviser and President Trump’s son-in-law, who also attended the meeting, violated the law by failing to disclose this meeting on a government background form. But focusing on bright-line rules of criminality misses the point. The deeper question is whether members of Trump’s administration can uphold the trust that has been placed in them as stewards of the government they have been chosen to lead. On this front, the criminal code shouldn’t be the only yardstick. Even if Trump’s aides and family members have managed to toe the line of the law, the news out of the Russia investigation so far leaves little reason to have faith in their judgment.
For the record, the form in question isn’t easy to fill out. The SF-86 , more than 100 pages long, asks an individual seeking a national security position — one requiring a security clearance — for every place they’ve ever lived, every country they’ve ever visited, background information on every close relative and almost every possible variation on their contacts with foreign officials. Even knowing that a false statement can carry a penalty of up to five years in prison, it’s not uncommon for even the most honest person filling out the form to inadvertently omit a piece of information. On my own SF-86, which I completed when I was 27 to become a special agent for the FBI, I failed to disclose a speeding ticket I got when traveling home from college for Thanksgiving when I was 19. I got a grilling from FBI agents: Why did I not mention this? “I forgot” wasn’t the answer they wanted, but to my relief, they did accept it.
Which brings up the bigger picture: The SF-86 isn’t an end in itself or an attempt to entrap someone in a falsehood. It’s a starting point for the FBI to determine the kind of person you are — and whether you can be trusted to guard sensitive information, uphold the law and protect the United States. And that’s where Carla F. Bad comes in. It is most often questions that arise on these grounds, not false statements on the application, that prevent hundreds of individuals every year from obtaining their dream job in the federal government. In fiscal 2015 , the last year for which data was available, the government approved 638,679 security clearances, but at some agencies, such as the CIA, as many as 8.5 percent of applications were denied. The government reported that “foreign influence” was the most common reason for delaying clearances, followed by “financial considerations.”
Measuring the actions of Kushner, members of Trump’s campaign and even the president himself against Carla F. Bad is revealing. Consider the questions an FBI agent would ask a reference while conducting a background check: Can this person be trusted to do the right thing in a difficult situation? Is this person known as reliable and honest in their community? Does this person associate with individuals of questionable integrity? Has this person ever demonstrated a bias against a particular group of people? Does this person spend money wisely, or are they in serious debt? Has this person done or said anything to make you question their allegiance to the United States and its institutions? Answering “yes” to any of these would not make the person in question a criminal. But it would raise serious red flags about their suitability to hold a position of public trust.
Lawyers for Trump administration officials insist that their clients didn’t break any laws at the meeting with Russian lawyer Natalia Veselnitskaya in June 2016. But merely following the law is the least we expect of anyone in our society. It should, of course, be the bare minimum of what we expect from our public servants. Carla F. Bad reminds us, though, that as a nation we have held our government officials to something far higher: to common decency, fairness, ethical behavior and moral character. The recent focus on finding a smoking gun of criminality, or defending against it, has blinded us to these qualities. As a result, any behavior that lurks in the gaps of the criminal code is defended as acceptable.
The question isn’t whether Kushner or others broke the law in meeting with Veselnitskaya. It’s not even whether Trump’s campaign aides broke any laws by “colluding” with a foreign power last year. If they did, then they should be held to account — but this is a ceiling, not a floor. To make this the standard of their suitability to lead the country suggests that Congress’s failure to imagine and criminalize every possible lapse of ethical conduct is the last word on the expectations of our government officials. The question should be, more simply, whether the pattern of behavior by various members of the administration that has so far come to light demonstrates a capacity or willingness to uphold the public’s trust.
On this point, we can’t count on the results of the special counsel to provide the answer. As a former FBI director, Robert Mueller is familiar with the spirit of Carla F. Bad, and her principles will no doubt animate the investigations under his charge. In the end, however, Mueller’s inquiry will be limited to actions that crossed the threshold of criminality, which is a very narrow question.
It remains to be seen whether any actions by Trump Jr., Kushner, Attorney General Jeff Sessions, former Trump campaign manager Paul Manafort, former adviser Carter Page, former national security adviser Michael Flynn or anyone else connected to the White House meet the very high standard for criminal liability. But while the criminal investigations take their course, the American public can reach their own verdict on the administration’s trustworthiness — and here, Carla F. Bad should be our guide.