On Monday, President Trump’s senior adviser and son-in-law Jared Kushner told members of the Senate Intelligence Committee and the press that he did not “collude with Russia” or “know of anyone else in the campaign who did so.” In his prepared remarks for Congress, Kushner described several interactions he had with Russian ambassador Sergey Kislyak, but also claimed to have no record or recollection of other conversations that have been previously reported by the media.

Fortunately, investigators don’t need to rely on Kushner’s apparently porous memory about whom he spoke with when, and about what. The Federal Bureau of Investigation likely has it all on tape.

Listening In

The Foreign Intelligence Surveillance Act, or FISA for short, permits intelligence agencies to collect the communications of any “agents of a foreign power," including diplomats. “The Russian ambassador has probably been under surveillance since before you and I were born,” says William Banks, a professor at Syracuse University Law School and director of the Institute for National Security and Counterterrorism.

That means that while Kushner failed to report many of his meetings with foreign officials on his official SF-86 form---an innocent mistake by his assistant, Kushner insists---Congressional investigators and indeed the Department of Justice's special counsel Robert Mueller could easily check Kushner’s statements with the FBI’s own intercepts–particularly the two reported 2016 phone calls that Kushner says he does not remember. (The FBI handles FISA collection in the US, which would include the Russian embassy, while the NSA listens in abroad.)

That doesn’t mean investigators can find all the answers they seek about the Trump campaign’s interactions with Russians from these intercepts. As a US citizen, Kushner's name would initially be "masked" in those intelligence reports, revealed only if necessary to understand the context of the conversations. Perhaps more importantly, Kislyak would know as well as anyone that US intelligence monitors his every word. That means that even if those records do corroborate Kushner’s version of events, the investigators’ probe shouldn't stop there.

Playing Telephone

Naveed Jamali, author of the book How to Catch a Russian Spy, became a double agent for the FBI back in 2005, working alongside Russian intelligence and feeding whatever he learned back to the FBI. His Russian contacts, Jamali recalls, were resolutely opposed to any electronic communication.

“They believed that electronic communications, including cell phones and email, were closely monitored and were absolutely adamant they were not to be used,” Jamali says. When he did communicate with anyone over the phone, it was often to set up an in-person meeting, where the real substance of the conversation would take place.

“Just because there’s an innocuous sounding conversation with a Russian diplomat doesn’t prove the guilt or innocence,” Jamali says. “The crux of the conversation is going to come in person.”

That’s why investigators will likely home in on the June 9 meeting between Kushner, Donald Trump Jr., former Trump campaign manager Paul Manafort, and several other Russian representatives, including lawyer Natalia Veselnitskaya and former intelligence agent Rinat Akhmetshin. In his remarks to the Senate committee Monday, Kushner maintained that he took the meeting without realizing who would be attending. The meeting was such a “waste of our time,” he said, he asked his assistant to call him on his cell phone to give him an excuse to cut out.

'The Russian ambassador has probably been under surveillance since before you and I were born.' – Prof. William Banks, Syracuse University Law School

Even if Kushner believed the meeting wasted his time, the Russians may have found it to be an excellent use of theirs. Kushner’s statements, Jamali says, may not reveal an intent to collude with Russia, but they show a very deep naïveté on the campaign's part about Russia’s diplomatic intentions. Kushner explains how he asked for Kislyak’s advice about creating a secure communication channel with Russian officials, and sent his assistant to a meeting with the ambassador “to avoid offending” him. He took a meeting with Russian banker Sergey Gorkov, Kushner said, because "the Ambassador has been so insistent." Whether Kushner meant to or not, Jamali says, he gave Russian intelligence agents the impression he was susceptible to their direction.

“I believe the Russians looked at Jared Kushner and others as a potential, if not current, asset,” Jamali says. “The fact that this kept happening, and he kept engaging, is something the Russians would take as a sign that there’s an interest in building a relationship.”

Whether that constitutes a criminal act on Kushner’s part is a far more complicated question. In that case, intent does matter. The FBI’s records should be able to corroborate---or refute---the who, what, when, and where of Kushner’s many meetings and phone calls with Russian officials. The trick, though, remains figuring out why he was there in the first place.