Then, The Washington Post published a bombshell report that at least four countries had discussed how to use Kushner’s sparse experience, financial troubles and intricate business arrangements to manipulate him.
The triple blows at Trump’s inner circle added to the already incredible personal, political and legal pressure heaped on the President and the strain on those staffing his turbulent presidency.
They come at a moment when Mueller’s probe is gathering pace, cranking out indictments of Trump associates, and appears to be posing a more severe threat to the President, Kushner and other important associates.
The developments were more than a personal and public humiliation to Kushner, who has played an influential, if mysterious, role in the administration.
They put the sustainability of his role as a top foreign policy adviser to Trump in doubt because he will have access to far fewer government secrets and cannot see the Presidential Daily Brief, the collection of the spy community’s treasures prepared for the commander in chief.
The downgrade appears to make it all but impossible for Kushner to do his job even though the White House and his lawyer say that is not the case.
But how for example can he carry out his duties running the Middle East peace process or liaising with top Gulf powers if he is not privy to the latest intelligence about his interlocutors or other key regional players like Iran?
Similarly, Kushner could find himself asked to leave sensitive meetings in the White House or force top intelligence or foreign policy officials to avoid the most sensitive subjects in meetings that he is in with the President.
“He can’t see intercepted communications — that’s top secret, he’s now downgraded to secret … he can’t see the most secret CIA information about their informants,” said Phil Mudd, a former CIA and FBI official who is now a CNN national security analyst.
“He can’t see some of the stuff our Western allies see,” he added.
Ultimately, unless Kushner is cleared by the FBI to receive a permanent security clearance or gets a waiver from the President his diminished role will spur fresh speculation about his longevity as a White House staffer.
His departure and potentially that of his wife Ivanka Trump, who just controversially led a US mission to South Korea’s Winter Olympics at a time of flaring nuclear tensions with North Korea, would mark a huge earthquake in Trump world.
As it is, the couple will see their “influence diminished,” a GOP source close to the White House told CNN’s Jim Acosta.
Fresh doubts over Kushner’s position also risked reflecting poorly on Trump, given that the President made a close family member who was apparently unqualified or at risk of being compromised by foreign powers such a pivotal adviser.
After all, Trump pledged to hire the most qualified people in the world to serve in his administration, and made the alleged mishandling of classified material by his 2016 opponent Hillary Clinton a key argument of his campaign.
Trump was already under ethical fire for breaking anti-nepotism conventions by hiring family members. Kushner’s new troubles will make those questions even more acute.
“This is a stunning blow to President Trump,” said CNN presidential historian Timothy Naftali, noting that Kushner was one of the few senior advisers with whom Trump felt comfortable.
“This is a big deal … he must be fuming,” Naftali told CNN’s Erin Burnett.
The idea that key foreign countries, including Mexico, Israel, China and the United Arab Emirates had acted on conversations about how to manipulate Kushner, according to current and former US officials familiar with intelligence reports cited by the Post, is also a problem.
After all, the optics of a senior presidential adviser sitting down with leaders who have been publicly reported to have tried to compromise him would weaken his leverage.
The political implications of the Kushner news are less profound than the national security questions but no less intriguing.
The strike against Kushner is a bold move by Kelly who has worked to remove what he sees a distracting elements around the President — such as former top political adviser Steve Bannon and former foreign policy aide Sebastian Gorka. But his decision to take on the President’s son-in-law is the most significant and potentially risky coup yet.
Last week, Trump told reporters he would let Kelly decide what to do about his son-in-law’s clearance but stressed that Kushner had done an “outstanding job.” The comment was seen by many in Washington as a broad hint to Kelly that the President wanted Kushner kept in the loop.
Now any attempt by Trump to contradict Kelly’s move would shatter the chief of staff’s authority and make his position all but impossible. But if Kelly prevails, his decision on Kushner will be regarded as a gutsy political victory and would undercut speculation he cannot last much longer in the White House.
Signs that Mueller is looking into Trump’s finances meanwhile add a layer of intensity to the drama surrounding his investigation.
The President has previously warned that he would not tolerate the special counsel seeking such information, so speculation about whether Trump will try to fire Mueller will be revived.
While there is no indication so far of any wrongdoing by Trump or collusion with a Russian election meddling effort, the report again poses the question of whether his past business dealings could have been a target for any Russian attempt to compromise him.
Any sense on the part of the President that the walls are closing in will not have been helped by Tuesday’s testimony to a House committee by Hope Hicks, his communications director and close campaign aide.
Jared Kushner should not be working in the White House
Jennifer RubinThe Washington Post
The Washington Post reports:
“A top Justice Department official alerted the White House two weeks ago that significant information requiring additional investigation would further delay the security clearance process of senior adviser Jared Kushner, according to three people familiar with the discussion.
“The Feb. 9 phone call from Deputy Attorney General Rod J. Rosenstein to White House Counsel Donald McGahn came amid growing public scrutiny of a number of administration officials without final security clearances. Most prominent among them is Kushner, President Trump’s son-in-law, who has had access to some of the nation’s most sensitive material for over a year while waiting for his background investigation to be completed.
“A week after the call from Rosenstein, White House Chief of Staff John F. Kelly announced that staffers whose clearances have not been finalized will no longer be able to view top-secret information — meaning that Kushner stood to lose his status as early as Friday.”
We do not know for certain why Kushner’s security clearance has been held up. Suffice it to say, however, that if a senior staffer in any other administration had to repeatedly amend his disclosure statements, failed initially to disclose meetings with Russians during the transition (including one in which a back channel cutting out our intelligence services was discussed), ran up huge personal debts and consulted with a now-fired, indicted White House official, he would have been denied a clearance and shown the door. (“Kushner’s actions during the transition have been referenced in the guilty plea of former Trump national security adviser Michael Flynn, who admitted he lied to the FBI about contacts with then-Russian Ambassador Sergey Kislyak,” The Post reports. “Prosecutors said Flynn was acting in consultation with a senior Trump transition official, whom people familiar with the matter have identified as Kushner.”)
It isn’t surprising that Chief of Staff John Kelly would be happy to see Kushner go. (“Kelly has told associates that he is uncomfortable with Kushner’s uncertain security clearance status and his unique role as both a family member and staffer, according to people familiar with the conversations. He has said he would not be upset if the president’s son-in-law and his wife, Ivanka Trump, left their positions as full-time employees.”)
Aside from whatever political backstabbing might be going on (Kushner’s wife Ivanka Trump is purportedly involved in trying to replace Kelly), Kushner now stands in violation of the deadline Kelly imposed to end all interim security clearances. If Kushner remains and gets special treatment, the message from the White House is clear: The Trump family doesn’t meet basic security requirements and gets special treatment. The mixed message to the rest of the White House staff undermines Kelly’s authority and ability to force compliance with essential security requirements.
Taking a step back, in any other White House a senior adviser whose job requires access to classified material would be obliged at the very least to step away from duties pertaining to national security. We have known since May 2017 that Kushner was under investigation. (The Post reported on May 19, 2017: “The law enforcement investigation into possible coordination between Russia and the Trump campaign has identified a current White House official as a significant person of interest, showing that the probe is reaching into the highest levels of government, according to people familiar with the matter.” That person was later identified as Kushner.) “Under no circumstances should Kushner have maintained his security clearance this entire time, given the nature of the conduct that is under investigation,” says former Justice Department spokesman Matt Miller. “And without a security clearance, he couldn’t be in the job he’s been in.”
Norman L. Eisen, former ethics counsel for President Barack Obama, tells me: “Kushner should have been gone — and in Obama’s or any other White House, would have been gone — as soon as the red flags of his dozens of omissions on his security clearance and financial disclosure forms began to accumulate. That is because they signaled the trouble ahead. It is only because of nepotism (also a violation of federal law, by the way) that he is still there.” (Citizens for Responsibility and Ethics in Washington, of which Eisen is the board chair, sent a letter to Kelly on Feb. 15 demanding that Kushner’s temporary clearance be revoked, citing multiple factors — e.g. foreign influence, omission of information — that would trigger a denial of clearance under existing regulations and executive orders.)
Unless Kushner has been entirely cleared of wrongdoing, his continued presence in his current White House role is unprecedented and inexcusable. He is entitled to the legal presumption of innocence, but not to a high White House post with a top security clearance so long as there is credible information to believe he acted improperly with regard to the matters under investigation. If this were a corporate setting, a high-level executive would be put on “leave” pending conclusion of an investigation. Former director of the U.S. Office of Government Ethics Walter Shaub tells me, “It’s ridiculous that Kushner still works in the White House, all the more so that he has access to classified information. Anybody else would be gone, but the Justice Department consigned us to this fate when it [condoned] nepotism in the White House.”
We raise this point about Kushner’s presence to underscore how entirely abnormal is the situation the country finds itself. His continuing role in the White House demonstrates just how far out of bounds is the conduct of this White House and the degree to which the administration now serves Trump’s personal and family interests rather than the nation’s. Unfortunately, as we have learned, the country at large begins to become accustomed to the inexcusable — if the inexcusable goes on long enough.
Jennifer Rubin writes the Right Turn blog for The Post, offering reported opinion from a conservative perspective.
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American Citizens: U.S. Border Agents Can Search Your Cellphone
byCYNTHIA MCFADDEN, E.D. CAUCHI, WILLIAM M. ARKINandKEVIN MONAHAN
When Buffalo, New York couple Akram Shibly and Kelly McCormick returned to the U.S. from a trip to Toronto on Jan. 1, 2017, U.S. Customs & Border Protection officers held them for two hours, took their cellphones and demanded their passwords.
“It just felt like a gross violation of our rights,” said Shibly, a 23-year-old filmmaker born and raised in New York. But he and McCormick complied, and their phones were searched.
Three days later, they returned from another trip to Canada and were stopped again by CBP.
“One of the officers calls out to me and says, ‘Hey, give me your phone,'” recalled Shibly. “And I said, ‘No, because I already went through this.'”
The officer asked a second time.
Watch Cynthia McFadden on Nightly News for More
Within seconds, he was surrounded: one man held his legs, another squeezed his throat from behind. A third reached into his pocket, pulling out his phone. McCormick watched her boyfriend’s face turn red as the officer’s chokehold tightened.
Then they asked McCormick for her phone.
“I was not about to get tackled,” she said. She handed it over.
Shibly and McCormick’s experience is not unique. In 25 cases examined by NBC News, American citizens said that CBP officers at airports and border crossings demanded that they hand over their phones and their passwords, or unlock them.
The travelers came from across the nation, naturalized citizens and people born and raised on American soil. They traveled by plane and by car at different times through different states. Businessmen, couples, senior citizens, and families with young kids, questioned, searched, and detained for hours when they tried to enter or leave the U.S. None were on terror watchlists. One had a speeding ticket. Some were asked about their religion and their ethnic origins, and had the validity of their U.S. citizenship questioned
What most of them have in common — 23 of the 25 — is that they are Muslim, like Shibly, whose parents are from Syria.
Data provided by the Department of Homeland Security shows that searches of cellphones by border agents has exploded, growing fivefold in just one year, from fewer than 5,000 in 2015 to nearly 25,000 in 2016.
According to DHS officials, 2017 will be a blockbuster year. Five-thousand devices were searched in February alone, more than in all of 2015.
“That’s shocking,” said Mary Ellen Callahan, former chief privacy officer at the Department of Homeland Security. She wrote the rules and restrictions on how CBP should conduct electronic searches back in 2009. “That [increase] was clearly a conscious strategy, that’s not happenstance.”
“This really puts at risk both the security and liberty of the American people,” said Senator Ron Wyden, D-Oregon. “Law abiding Americans are being caught up in this digital dragnet.”
“This is just going to grow and grow and grow,” said Senator Wyden. “There’s tremendous potential for abuse here.”
What CBP agents call “detaining” cellphones didn’t start after Donald Trump’s election. The practice began a decade ago, late in the George W. Bush administration, but was highly focused on specific individuals.
The more aggressive tactics of the past two years, two senior intelligence officials told NBC News, were sparked by a string of domestic incidents in 2015 and 2016 in which the watch list system and the FBI failed to stop American citizens from conducting attacks. The searches also reflect new abilities to extract contact lists, travel patterns and other data from phones very quickly.
But the officials caution that rhetoric about a Muslim registry and ban during the presidential campaign also seems to have emboldened federal agents to act more forcefully.
“The shackles are off,” said Hugh Handeyside, a staff attorney with the ACLU’s National Security Project. “We see individual officers and perhaps supervisors as well pushing those limits, exceeding their authority and violating people’s rights.”
And multiple sources told NBC News that law enforcement and the Intelligence Community are exploiting a loophole to collect intelligence.
Under the Fourth Amendment, law enforcement needs at least reasonable suspicion if they want to search people or their possessions within the United States. But not at border crossings, and not at airport terminals.
“The Fourth Amendment, even for U.S. citizens, doesn’t apply at the border,” said Callahan. “That’s under case law that goes back 150 years.”
Customs and Border officers can search travelers without any level of suspicion. They have the legal authority to go through any object crossing the border within 100 miles, including smartphones and laptops. They have the right to take devices away from travelers for five days without providing justification. In the absence of probable cause, however, they have to give the devices back.
CBP also searches people on behalf of other federal law enforcement agencies, sending its findings back to partners in the DEA, FBI, Treasury and the National Counterterrorism Center, among others.
Callahan thinks that CBP’s spike in searches means it is exploiting the loophole “in order to get information they otherwise might hot have been able to.”
On January 31, an engineer from NASA’s Jet Propulsion Laboratory was pulled into additional screening upon his return to the U.S. after a two-week vacation in Chile. Despite being cleared by the Global Entry program, Sidd Bikkannavar received an “X” on his customs form. He is not Muslim, and he is not from any of the seven countries named in President Trump’s original “travel ban” executive order. Half his family comes from India but he was born and raised in California.
Bikkannavar was brought into a closed room and told to hand over his phone and passcode. He paid particular notice to the form CBP handed him which explained it had the right to copy the contents of the phone, and that the penalty for refusal was “detention.”
“I didn’t know if that meant detention of the phone or me and I didn’t want to find out,” said Bikkannavar. He tried to refuse but the officer repeatedly demanded the PIN. Eventually he acquiesced.
“Once they had that, they had everything,” Bikkannavar said. That access allowed CBP officers to review the backend of his social media accounts, work emails, call and text history, photos and other apps. He had expected security might physically search any travelers for potential weapons but accessing his digital data felt different. “Your whole digital life is on your phone.”
The officers disappeared with his phone and PIN. They returned 30 minutes later and let him go home.Sidd Bikkannavar poses for a portrait in 2014. Takashi Akaishi
CBP also regularly searches people leaving the country.
On February 9, Haisam Elsharkawi was stopped by security while trying to board his flight out of Los Angeles International Airport. He said that six Customs officers told him he was randomly selected. They demanded access to his phone and when he refused, Elsharkawi said they handcuffed him, locked him in the airport’s lower level and asked questions including how he became a citizen. Elsharkawi thought he knew his rights and demanded access to legal counsel.
“They said if I need a lawyer, then I must be guilty of something,” said Elsharkawi, and Egyptian-born Muslim and naturalized U.S. citizen. After four hours of questioning in detention, he unlocked his smartphone and, after a search, was eventually released. Elsharkawi said he intends to sue the Department of Homeland Security.
The current policy has not been updated since 2009. Jayson Ahern, who served in CBP under both Bush and Obama, signed off on the current policy. He said the electronic searches are supposed to be based on specific, articulable facts that raise security concerns. They are not meant to be random or routine or applied liberally to border crossers. “That’s reckless and that’s how you would lose the authority, never mind the policy.”
The Customs & Border Patrol policy manual says that electronic devices fall under the same extended search doctrine that allows them to scan bags in the typical security line.
“As the threat landscape changes, so does CBP,” a spokesperson told NBC News.
Since the policy was written in 2009, legal advocates argue, several court cases have set new precedents that could make some CBP electronic searches illegal.
Several former DHS officials pointed to a 2014 Supreme Court ruling in Riley v California that determined law enforcement needed a warrant to search electronic devices when a person is being arrested. The court ruled unanimously, and Chief Justice John Roberts wrote the opinion.
“Modern cellphones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans ‘the privacies of life,'” wrote Roberts. “The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought.”
Because that case happened outside of the border context, however, CBP lawyers have repeatedly asserted in court that the ruling does not apply to border searches.
For now a Department of Justice internal bulletin has instructed that, unless border officers have a search warrant, they need to take protective measures to limit intrusions, and make sure their searches do not access travelers’ digital cloud data. The ‘cloud’ is all content not directly stored on a device, which includes anything requiring internet to access, like email and social media.
Former DHS officials who helped design and implement the search policy said they agreed with that guidance.
Wyden Pushes to Change the Policy
On February 20, Sen. Wyden wrote to DHS Secretary John Kelly demanding details on electronic search-practices used on U.S. citizens, and referred to the extent of electronic searches as government “overreach”. As of publication, he had yet to receive an answer.
Now Sen. Wyden says that as early as next week he plans to propose a bill that would require CBP to at least obtain a warrant to search electronics of U.S. citizens, and explicitly prevent officers from demanding passwords.
“The old rules … seem to be on the way to being tossed in the garbage can,” said Senator Wyden. “I think it is time to update the law.”
Asked about the Shibly case, a CBP spokesperson declined to comment, but said the Homeland Security Inspector General is investigating. The spokesperson said the agency can’t comment on open investigations or particular travelers, but that it “firmly denies any accusations of racially profiling travelers based on nationality, race, sex, religion, faith, or spiritual beliefs.”
Explaining the sharp increase in electronic searches, a department spokesperson told NBC News: “CBP has adapted and adjusted to align with current threat information, which is based on intelligence.” A spokesman also noted that searches of citizens leaving the U.S. protect against the theft of American industrial and national security secrets.
After repeated communications, the Department of Homeland Security never responded to NBC News’ requests for comments. Nonetheless, the Homeland Security Inspector General is currently auditing CBP’s electronic search practices.
The Council on American-Islamic Relations (CAIR) also has filed two dozen complaints against CBP this year for issues profiling Muslim Americans. CAIR and the Electronic Frontier Foundation are considering legal action against the government for what they consider to be unconstitutional searches at the border.
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