But the way in which this particular trail of corruption is littered with evidence suggests that this time, his action could blow up in his face — in political terms, if not in legal ones.
The New York Times reports that in May 2018, officials in the White House personnel security office — which makes determinations about security clearance, typically after the FBI runs a background check — were divided over whether to upgrade it for Kushner, who had temporary security clearance at the time.
Then-White House counsel Donald McGahn argued against it. If officials are at odds over whether to grant clearance, the White House counsel makes the determination, and in this case, McGahn was mindful that intelligence officials still had concerns about Kushner.
But a frustrated and angry Trump ordered the clearance granted the very next day, the Times reports.
It turns out there’s also a paper trail. As the Times notes, then-White House Chief of Staff John F. Kelly wrote a “contemporaneous internal memo” detailing how he had been “ordered” to give Kushner the clearance. McGahn also wrote an internal memo detailing both the concerns that intelligence officials had about Kushner and why he recommended against granting Kushner a top-secret clearance.
House Democrats, who are already looking into how Kushner and other officials were granted security clearances, are likely to investigate this latest move by Trump. The House Oversight Committee issued a statement threatening stepped-up subpoena action.
And Rep. Adam B. Schiff (D-Calif.) said the Intelligence Committee, which he chairs, would lend that effort an assist. Schiff pointed out that the new revelations expose the “deep unease that national security officials have about Kushner’s suitability” for “access to the nation’s most tightly held secrets,” adding: “There is no nepotism exception for background investigations.”
Democrats should subpoena those memos
As part of such an effort, House Democrats can subpoena those memos by Kelly and McGahn and, possibly, try to release them publicly as well.
“Congress should subpoena the memos,” Rep. Eric Swalwell (D-Calif), who is on the Intelligence and Judiciary committees, told me. “They would inform us as to whether the recommendations of experienced background investigators were being ignored, and whether this jeopardized national security secrets. The public should know if our secrets are in the hands of unscrupulous individuals.”
“It’s crucial for the appropriate congressional committees to find out the truth of what happened here, and getting hold of these documents it appears would be the best way to do that,” Noah Bookbinder, the executive director of Citizens for Responsibility and Ethics in Washington, said.
Bookbinder said that House Democrats should try not just to obtain the memos but also to release them, albeit with appropriate redactions. “Ultimately the public needs to know if the president is overriding national security interests based on personal relationships that he has,” Bookbinder said, adding that Democrats should aim for public release of as much information as national security permits, “in the interests of accountability.”
Trump may not have thought this one through
Note that Trump took this step way back in May 2018, long before Democrats took control of the House. At that time, the notion that Congress might exercise real oversight on Trump was probably very far from his mind.
In this case, we’re talking about an act of astonishing corruption and recklessness — with an unusual capacity for doing Trump political damage. Just to be very clear, the Times report notes that intelligence officials didn’t want to grant Kushner top-secret security clearance.
It’s not entirely clear why this was so — the Times says officials had concerns about contacts between Kushner’s and his family’s business ties to foreign investors and governors. But the mere fact that intelligence officials were concerned itself will now invite intensified scrutiny from House Democrats. That will throw Trump’s decision to override those officials into sharper relief.
The task of looking into this will probably be divided among various committees, according to Susan Hennessey, a senior fellow at the Brookings Institution. The House Intelligence Committee might try to establish what intelligence officials learned about Kushner that raised red flags, while the Oversight Committee might look into how Trump corrupted the security clearance process on behalf of his son in law.
As Hennessey said, the Oversight Committee should subpoena the Kelly memo in particular, because it is focused on detailing how he was “ordered” to grant Kushner the security clearance. Kelly probably wrote this memo precisely because he wanted to create a “paper trail,” Hennessey noted.
“Kelly didn’t just decide to create a contemporaneous memo like this for his own records,” Hennessey told me, adding that he might have been “motivated by an underlying fear that Kushner somehow presents a national security threat.” Hennessey added that this should lead Democrats to treat this as an “urgent” oversight matter, including subpoenaing the document to “share it with the public.”
Trump is still trapped in 2018
To be sure, the White House will fight hard against such a release, invoking executive privilege and national security. “But these committees were set up to be able to review sensitive documents, and they’ve got all kinds of ways to do that,” Bookbinder said.
Trump rage-tweeted a command Friday morning that Congress must find ways of discrediting the devastating testimony offered by his former lawyer Michael Cohen, suggesting Trump still inhabits a mental universe where the House functions as his 24/7 bodyguard against accountability. But now that Democrats control the House, some of the things Trump did during his first two blissful oversight-free years may be transforming into ticking time bombs.