AP Photo LAW AND ORDER How to Understand Kushner’s ‘Back-Channel’ Back-channels might be a regular part of government operations, but not this one.

Carrie Cordero is an attorney in private practice, adjunct professor at Georgetown Law, and former Counsel to the Assistant Attorney General for National Security.

This article expands and adapts an earlier version that first appeared on Lawfare.

L ast month, the Washington Post and New York Times reported that during the presidential transition Donald Trump’s son-in-law and senior adviser, Jared Kushner, met with Russian Ambassador Sergey Kislyak to discuss establishing a direct line of secure communication from the White House to the Kremlin—possibly run out of Russian diplomatic facilities. The Washington Post report left the motivation for the potential back-channel vague, while the New York Times said it intended to allow short-lived National Security Adviser Michael Flynn—who was reportedly present at the meeting with Kislyak as well—a direct line to Russia to discuss Syria policy “and other security issues.”


The revelations raised a host of questions. The White House has neither officially denied nor meaningfully clarified the information reported, although Secretary of Homeland Security John Kelly and Assistant to the President for National Security Affairs H.R. McMaster have offered some public defense of Kushner’s efforts. Criticisms of the meeting have included questioning why a secure communications channel was ever on the table, as well as whether the meetings were appropriate given that the United States operates with one president at a time. Incoming administration personnel have traditionally exercised care not to send other countries mixed messages about U.S. policy before the official change of administrations. In addition, another Kushner meeting during the transition period is under scrutiny—this one with Sergey Gorkov, the head of a Russian bank. Conflicting information about the purpose of that meeting only adds to the speculation (emboldened by the lack of divestitures and financial disclosures from the Trump family) about whether Kushner’s various meetings with Russian and other foreign government officials from November to January took place as part of his role as a future White House official, or, as the head of his family-owned real estate business.

I spent 10 years working on national security operations, law and policy for the Department of Justice and intelligence community, and, as both a practitioner and professor of intelligence and national security law I can tell you that so-called back-channels exist in diplomacy and intelligence. They don’t need to be centralized in the White House. Indeed, in normal times, foreign intelligence services are often the official government entities that operate these lines. At a public conference this past fall, then-CIA Director John Brennan led a discussion with intelligence service leaders from Britain, Afghanistan and Australia. The intelligence chiefs briefly touched on the role that intelligence back-channels play in facilitating dialogue between nations that might have difficulty discussing certain issues through overt diplomatic channels. As Brennan described, “It’s a balancing of openness, which, being here on this stage we are trying to engage with the public about our work. And at the same time, we have a responsibility to make sure we keep certain things secret, and using these very discreet, and secret intelligence channels, allows things to happen and to take place between governments that are out of the spotlight, that maybe the diplomatic realm is not able to have that same type of discretion.”

So, if back-channels are an accepted part of diplomatic and national security interactions between foreign nations, then why the concern about the Kushner-Kislyak meeting? The issue is not so much that the White House wanted to establish a back-channel with a foreign government on a particular matter—the issue is with whom they wanted to establish the channel with (Russia), and, how they reportedly wanted the channel to operate (using Russian facilities and secure communications).

Regardless of the president’s favorable talk regarding Russia on the campaign trail, Russia is an antagonist, and its strategic global interests do not align with ours. Until very recently in U.S. political discourse, this was a nonpartisan, noncontroversial view. Russia seeks to expand its military advantage and geo-political influence on the backs of western democracies. The objective of Russian leadership is to expand its sphere of influence and strength, and it targets the U.S. and our allies to further that goal. This is not just my assessment; this is the considered professional assessment of the U.S. government. “Russia is a full-scope cyber actor that will remain a major threat to US Government, military, diplomatic, commercial, and critical infrastructure,” reads the statement for the record on worldwide threats that Director of National Intelligence Dan Coats’ wrote earlier this month. “We assess that Russian cyber operations will continue to target the United States and its allies.”

Coats goes on: “Russia is likely to continue to financially and politically support populist and extremist parties to sow discord within European states and reduce popular support for the European Union. … Moscow is pursuing a wide range of nuclear, conventional, and asymmetric capabilities designed to achieve qualitative parity with the United States. These capabilities will give Moscow more options to counter US forces and weapons systems.”

Given this professional judgment on Russia by the Director of National Intelligence, the notion that a senior transition team or White House official would either propose—or even be open to discussing—using Russian secure communications channels is, to the say the least, unsettling. It indicates that individuals who occupy senior positions in the White House considered putting into place a system that would give the Russians an intelligence collection advantage by bypassing the U.S. intelligence community.

Did Kushner and Flynn realize that using Russian communications channels would either evade or appear to evade the U.S. intelligence community’s own foreign intelligence surveillance activities? It’s hard to believe they didn’t. Of course, it’s possible that the information they were going to share with the Russians wouldn’t have undermined the U.S. But if that’s the case—if they were just going to talk about Syria military de-confliction, or the future of counter-ISIS activities—why would they want to deliberately hide that from their own government? It is the role of the U.S. intelligence community, after all, to provide both tactical and strategic information to our own military and intelligence personnel who may be in harm’s way, as well as to our allies in the region.

These considerations take us into serious legal territory.

If the reports about using Russian communications facilities are correct, Flynn and Kushner may have crossed a threshold of considering taking action that would benefit a foreign government, instead of their own government. While I am inclined to think that the FBI investigation into Russian influence (now led by the special counsel) has passed the point of using surveillance conducted under the Foreign Intelligence Surveillance Act (FISA) against any U.S. persons targeted in the investigation, we can look to FISA’s definitions to understand how behavior can move from acceptable international relations activities into the uncharted territory of aiding and abetting a foreign nation:

First, Russia is, obviously, a foreign power as defined by 50 U.S.C. 1801(a)(1): a foreign government or any component thereof, whether or not recognized by the United States.

Second, in the counterintelligence arena, an agent of a foreign power (who is also a U.S. person), is defined by 50 U.S.C 1801(b)(2). It is any person who:

(A) knowingly engages in clandestine intelligence gathering activities for or on behalf of a foreign power, which activities involve or may involve a violation of the criminal statutes of the United States;

(B) pursuant to the direction of an intelligence service or network of a foreign power, knowingly engages in any other clandestine intelligence activities for or on behalf of such foreign power, which activities involve or are about to involve a violation of the criminal statutes of the United States; ...

or (E) knowingly aids or abets any person in the conduct of activities described in subparagraph [(A) or (B)]. (Other sections have been omitted.)

A key factor for a U.S. person to be found an agent of a foreign power is that there needs to be probable cause that the individual is knowingly engaged in the activity. In other words, the individual cannot innocently be taken advantage of by a foreign intelligence officer and then be found by the Foreign Intelligence Surveillance Court to be an agent of a foreign power. But it would be hard to argue that Kusher and Flynn made their back-channel plans without understanding the effects or consequences. As examples, had this secure communications plan been implemented, Flynn and/or Kushner, if using the channel, could have potentially—and without U.S. government knowledge:



Communicated classified or sensitive national intelligence information to the Russian government, including its intelligence service officials;



Revealed sensitive U.S. government or national intelligence information that the Russians otherwise would have had to try to collect through other clandestine means;



Provided valuable information about the thinking within the Trump White House and the inner workings of the U.S. Executive Branch; and/or



Compromised themselves in a way that—if they intended to keep the channel secret from U.S. intelligence services and/or the American public—would have provided Russian intelligence with information that could be used against them in the future.

Based on currently available public information, it is unclear how far the discussion ever got, and the back-channel appears to have never been established. And I, along with many other former government national security types, have a healthy amount of skepticism about the accuracy of press reports that delve into intelligence matters. But if these multiple reports are indeed accurate, this is dangerous ground.

Early in my career, as a Justice Department lawyer, I handled counterintelligence cases that were presented to the Foreign Intelligence Surveillance Court for surveillance authority. In the office where I worked, which is now part of the Department’s National Security Division, counterintelligence cases that involved government employees suspected of working on behalf of a foreign government were unique, highly sensitive and closely-held. In my experience, FBI investigations that involve political individuals or organizations are considered highly sensitive and have required decision-making involvement by the highest levels of the Justice Department. The current case captivating the public attention—the Russian influence investigation—involves both: It involves individuals at the highest level of politics, those entering and in the White House, and, it involves the intelligence efforts of one of our foremost strategic adversaries, the Russian government. We are observing a set of facts that is highly unusual, even in the world of counterintelligence.

There is plenty of public information available—and presumably classified information available to White House officials—that details Russian foreign intelligence efforts. If one knows that a secure communication line exists between U.S.-based Russian diplomatic facilities and Moscow; one certainly knows why it exists—that is, it exists to help Russian government officials evade U.S. surveillance capabilities. An effort on the part of an American government soon-to-be official to use a channel expressly intended to undermine the U.S. government—comes awfully close to the line of aiding and abetting the clandestine intelligence activities of a foreign power that presumably take place out of those very facilities.