Why Is Kushner Withholding Key Documents From Congress?

This article first appeared on Just Security.

The most incendiary part of a stinging letter from Senate Judiciary Committee leaders to Jared Kushner’s counsel, Abbe Lowell, is the committee’s disclosure that “other parties have produced documents concerning a ‘Russian backdoor overture and dinner invite’ which Mr. Kushner also forwarded.”

That sounds like a major piece of evidence in the broader context of Russian election interference and allegations of Trump campaign collusion with Russia.

However, it is impossible to assess the significance of the email referenced without more information.

Who wrote that email? When was it written, i.e., how does it fit into the overall timeline of events?

To whom was it sent when Kushner was copied? To whom did Kushner forward it? Who produced it to the committee?

The committee has possession of the underlying email, but what Kushner did with it could reveal significant evidence that might not have been in the possession of the person who produced it.

In their letter to Lowell, Chairman Chuck Grassley (R-Iowa) and Ranking Member Diane Feinstein (D-Calif.) accuse Kushner of failing to provide other documents also requested by the committee.

In particular, they note that “other parties have produced September 2016 email communications to Mr. Kushner concerning WikiLeaks, which Mr. Kushner then forwarded to another campaign official.

Additionally, other parties also produced email communications with Sergei Millian, on which Kushner was copied. Millian, a Belarus businessman, is apparently identified as “Source D” in Christopher Steele’s dossier. They also note that Kushner has not produced any responsive phone records that “we presume exist.”

Beyond the Russia overture bombshell, their letter reveals several other dynamics at play in the congressional investigations of Russian interference.

A Bipartisan Show of Force

Of note, the letter is signed by both Grassley and Feinstein. A bipartisan committee leadership letter sends an unmistakable signal to Kushner’s team that the Senate Judiciary Committee is escalating its pressure.

Grassley’s participation brings with it a credible implicit threat of a subpoena. Under the committee’s rules, the “Chairman of the Committee, with the agreement of the Ranking Member or by a vote of the Committee, may subpoena the attendance of a witness at a Committee or Subcommittee hearing or Committee deposition, or the production of memoranda, documents, records, or any other materials.”

The measured tone of the letter still presumes Lowell’s goodwill. (“It appears that your search may have overlooked several documents.”) While the Committee’s patience has been tried, it has not been lost.

The message is clear: Stop playing word games and conduct a thorough and diligent search, or else a subpoena will be forthcoming. The committee gave a two-week deadline of Nov. 27, 2017. Grassley and Feinstein may not react well to Lowell’s public statement in response to the letter, reported here.

GettyImages-865479082 Jared Kushner, senior advisor to Donald Trump, in the Rose Garden of the White House, October 23, 2017 in Washington, DC. Win McNamee/Getty

In it, Lowell argued Kushner had provided the committee with all relevant documents that had to do with Kushner’s calls, contacts, or meetings with Russians during the campaign and transition, which he characterizes as the sum of the committee’s request.

That is clearly not how the committee interpreted its own document request.

Dawdling on Executive Privilege Non-Claims

The letter notes that Kushner’s team has “raised concerns that certain documents might implicate the President’s Executive Privilege and declined to produce those documents.”

Based on Lowell’s public statement Thursday, it sounds like Kushner has thus far declined to produce any documents from after the inauguration that are responsive to the committee’s request.

The committee asks Lowell to work with White House counsel to resolve executive privilege claims or provide a privilege log describing the documents over which President Donald Trump is asserting executive privilege.

As I have written previously, from the executive branch perspective, executive privilege claims do not ripen for presidential determination until a document is compelled by subpoena, and even then not until the congressional committee has scheduled a contempt vote for noncompliance.   

Therefore, I anticipate the only way the committee will ever hope to obtain access to those documents is by subpoenaing them, and then holding Kushner to account for failure to produce them by means of contempt.

At that point, Trump will have to decide whether he is going assert privilege with all the attendant political consequences. That is an important decision that requires a legal and political defense.

Unless Grassley holds up judicial nominations in return for document access (which is probably a nonstarter for a chairman who just tore up the century-old blue-slip process ), the only way the committee can force the issue is by means of its powers of compulsion.

With respect to an executive privilege log, should this ever escalate to subpoena enforcement litigation, an opinion in the Fast and Furious congressional subpoena litigation (my analysis here ) indicates the court would likely expect Kushner and the White House to have provided a log during negotiations between the legislative and executive branches.

Inter-Committee Rivalries & Intramurals

Lowell appears to be making the understandable, but likely futile, attempt to limit Kushner from having multiple interviews with investigators.

Grassley and Feinstein seek Kushner’s assistance in obtaining transcripts of his interviews with the House and Senate intelligence committees.

It is clear that, notwithstanding Kushner’s consent, the intelligence committees have declined to provide transcripts to the Senate Judiciary Committee. Those committees, in particular, have authorities that prohibit sharing intelligence sources and methods with other senators.

“While all Senators have access to classified intelligence assessments, access to intelligence sources and methods, programs, and budgets is generally limited to Intelligence Committee members (and to members of the Defense Appropriations Subcommittee).”

They also have rules restricting disclosure of sensitive documents to other committees without prior approval by the bipartisan committee leadership. The intelligence committees use their jurisdictional provisions to safeguard their access to the intelligence community but also to protect their turf from other perceived encroachments by other committees.

It will be interesting to watch how this burgeoning dispute unfolds. We should get some public indication as to the committee’s level of satisfaction with Kushner’s response after November 27.

Andy Wright is Professor at Savannah Law School and a former Associate Counsel to the President in the White House Counsel’s Office.

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