Fate of Kushner’s security clearance could ultimately lie with Trump

The decision over whether Jared Kushner will be stripped of his security clearance could ultimately be made by one man — his father-in-law, President Donald Trump.

Kushner’s actions — including initially failing to disclose meetings with Russian officials — would be more than enough to cost most federal employees their security clearances, according to people familiar with the security-clearance process.

“They would lose their job immediately,” said Danielle Brian, executive director of the Project on Government Oversight. “Their clearance would be gone.”

But Kushner isn’t your average federal government employee.

The vast majority of security clearance background investigations for officials at federal agencies are handled through the Office of Personnel Management, where nameless government bureaucrats and contractors look for even the slightest of inconsistencies.

“We’ll have clients who, you know, have $2,000 worth of debt that they did not disclose — they pay it off during the investigation and they still don’t get approved for security clearance,” said Joanna Friedman, an attorney with the Federal Practice Group, who has spent a decade representing employees seeking security clearances.

White House officials, though, go through a slightly different process, according to sources familiar with it. For new White House employees who don’t already have a clearance sponsored by another agency, background investigations are typically conducted by the FBI, with possible involvement from the CIA. The FBI then forwards its recommendations to the White House.

The security clearance process is ultimately rooted in executive authority, not law, meaning the president himself is the ultimate arbiter. It is extremely rare for a president to wade into such an issue, experts said, but Trump does have the power, if he wanted to, to demand that Kushner keep his clearance.

“If the president wants someone to have a clearance and access to classified information, there’s no one to tell him no,” said Steven Aftergood, a government secrecy expert with the Federation of American Scientists.

And this is a president who is fiercely loyal to his family.

As Trump biographer Tim O’Brien put it, “Trump has always put family first even if family members lack the skill or experience for the type of job they’re being asked to do.”

“Trump wouldn’t take away his security clearance himself,” O’Brien said. “He would have to be convinced by his own attorneys and his staff that the issues had moved beyond familial loyalty. That’s going to take a lot of arm-twisting and convincing.”

And it suggests Democrats and other critics who say Kushner should lose his access to classified information may end up disappointed.

Kushner, who is married to Trump’s daughter Ivanka and serves in the White House as a senior adviser, has been given responsibility over a wide portfolio ranging from the opioid crisis to brokering a Middle East peace deal.

Not having a security clearance would hobble him from doing large swaths of his job. On many days, he receives classified briefings, according to a senior administration official — and is often in the room with his father-in-law for sensitive decisions about classified issues.

He has traveled overseas with top military commanders and will call foreign leaders on his own.

One source said Kushner sometimes comes to National Security Council meetings "at least for part of the meeting" and that he often talks to Secretary of State Rex Tillerson.

In recent weeks, though, Kushner has become the top target of Democratic outrage over the Trump campaign’s alleged ties to Russia, with House Minority Leader Nancy Pelosi (D-Calif.) on Friday ramping up her calls for his security clearance to be revoked.

“It’s absolutely ridiculous that he should have that clearance,” Pelosi said at a press conference. “It’s not justified in any way. The president could revoke it in a moment, and he should.”

Federal employees often have temporary clearances for six months or more, and it is unclear if Kushner has a permanent clearance.

Kushner initially omitted contacts with foreign officials on his security clearance application form, known as an SF-86, including meetings with Russia’s ambassador and a top Russian businessman. Kushner recently updated his SF-86 to include more than 100 foreign contacts, The New York Times reported.

And this week, it was revealed that Kushner attended a meeting last year with a Russian lawyer that was pitched as part of a Kremlin-backed effort to help the Trump campaign. A source familiar with the issue said Kushner was not told about the purpose of the meeting and did not read to the bottom of an email chain where the purpose was stated.

These and other revelations have led to more than 50 House Democrats urging the White House to revoke Kushner’s clearance.

Jamie Gorelick, a lawyer for Kushner, said her client had "prematurely" filed the first security clearance application form, but has since done everything possible to be accurate and transparent with his meetings.

“Mr. Kushner’s SF-86 was prematurely submitted and, among other errors, did not list any contacts with foreign government officials," Gorelick explained. "The next day, Mr. Kushner submitted supplemental information stating that he had had ‘numerous contacts with foreign officials’ about which he would be happy to provide additional information.

"He has since submitted this information," Gorelick continued, "including that during the campaign and transition, he had over 100 calls or meetings with representatives of more than 20 countries, most of which were during transition. Mr. Kushner has submitted additional updates and included, out of an abundance of caution, this meeting with a Russian person, which he briefly attended at the request of his brother-in-law, Donald Trump Jr."

Omitting facts from a security questionnaire could be disqualifying if it was part of a deliberate effort to conceal them, according to federal guidelines; an inadvertent omission would not be so costly. Similarly, making "prompt, good-faith efforts" to correct the omission can mitigate security concerns.

When asked last week whether his clearance was still valid, White House spokeswoman Sarah Huckabee Sanders said: “As always, we’ve never discussed the security clearances.”

One government official who went through the process in the last six months said it was quite arduous.

Agents showed up at this person’s house out-of-state and interviewed his parents and other family members. There were dozens of forms, along with interviews with former colleagues and friends about their personal and professional habits — from clients this person held in the past, to any foreign travel, to their history with alcohol and drugs.

This person said the agents appeared to be looking for even small inconsistencies in stories.

"I don’t think it’s that hard to get one, but if you had a meeting with a Russian government lawyer, I don’t think it would be that easy," this person said. "That would be something they’d care about. They asked me if I’d ever even met with foreign clients."

For most of the more than 4 million people who have security clearances in the United States, the process works like this: They are sponsored by an agency and undergo a background investigation. The vast majority of these background investigations are handled by the Office of Personnel Management, according to OPM spokeswoman Sandy Day.

Ultimate decisions about whether to grant the clearance — called adjudication — are typically made by the sponsoring agencies. The employee is then subject to periodic reinvestigations.

But for some White House employees, background investigations are instead handled by the FBI. The president, though, has ultimate authority, since the classification system is laid out in an executive order, rather than in law.

“If the president says give this person a clearance, nothing else really matters,” said Aftergood, the government secrecy expert. “There may be political consequences to such a move, but legally and otherwise, it’s entirely within the president’s authority to grant such a clearance.”

Kyle Cheney and Jacob Lahut contributed reporting.

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