Defense attorneys are typically wary of letting their clients share information with those investigating them, so reports that Jared Kushner agreed to a November interview with Special Counsel Robert Mueller came as something of a surprise. Was President Donald Trump’s son-in-law and top aide officially just a witness in the sprawling investigation clouding the White House?
Not exactly, former federal prosecutors say.
Kushner was brought in for an approximately 90-minute interview that focused primarily on the Russia contacts of ousted national security adviser Michael Flynn, according to reports in the New York Times and CNN. But former federal prosecutors note that political as well as legal considerations colored Kushner’s decision to talk, and that the reported focus on Flynn doesn’t mean that Mueller won’t want to learn more about other topics pertaining to Kushner.
“One thing it certainly means is that his lawyer thought there was not any significant criminal liability for Kushner as a result of that interview, which leads me to think it was fairly limited,” former assistant U.S. attorney Renato Mariotti told TPM, noting that the terms of what would be discussed were likely agreed upon ahead of time.
“But it would shock me if [Kushner attorney] Abbe Lowell thought that Kushner had no liability anywhere else,” Mariotti, who is now running for Illinois attorney general, added.
Lowell did not respond to TPM’s request for comment by press time, but said in a statement to CNN that Kushner “has voluntarily cooperated with all relevant inquiries and will continue to do so.”
Kushner, a core member of Trump’s tight inner circle, is reportedly under scrutiny for a number of issues. The top White House aide failed to disclose dozens of meetings with foreign contents on his national security clearance forms; had multiple meetings with Russians including the head of the sanctioned Vnesheconombank; and reportedly encouraged the firing of former FBI director James Comey.
Given all that, former federal prosecutor Peter Zeidenberg said that “no defense attorney in his right mind would let Jared Kushner anywhere near a prosecutor.”
But Zeidenberg pointed out that there are optics issues at play in special counsel investigations, and White House attorneys have maintained that administration officials are fully cooperating with Mueller’s team.
A similar situation played out during his time working on the investigation into the leaked identity of former CIA officer Valerie Wilson, Zeidenberg said, because officials in George W. Bush’s administration followed White House orders to cooperate with the probe.
“Even [indicted former White House adviser] Scooter Libby came in multiple times, and it wasn’t helpful to him,” Zeidenberg told TPM.
“There are political considerations as opposed to just legal ones,” he added. “If you’re looking at it from a legal perspective, you just keep your mouth shut and see what the government, the prosecutor comes up with. But if there are political considerations, it’d be a real problem if Jared Kushner asserted his Fifth Amendment or if other people close to the White House said they were pleading the Fifth. There would be a terrible perception problem.”
One former DOJ official sees a more innocent explanation for Kushner’s willingness to conduct the interview: he may have been a witness to key events or been sloppy in filing his national security clearance application, but none of the publicly available evidence suggests that he is criminally liable.
“So far I don’t see the things Kushner has done to be criminal, and you want to continue to send a message to the prosecutors that your client is cooperative,” said Michael Zeldin, a former federal counsel who worked closely with Mueller in the DOJ’s Criminal Division. “So it would make sense that you’d bring him in to help the prosecutor in the areas that they’re investigating, as long as it doesn’t implicate your client’s liberty.”
Though prosecutors are mindful of the optics of bringing high-profile White House officials in for multiple interviews, Mariotti and Zeidenberg said Mueller’s team will likely need Kushner to address the other issues that pertain to him, and it’s unclear if Lowell will agree to all of those discussions. Cautioning that most of the developments in the probe are happening out of sight, the three former prosecutors said that reports that Flynn’s legal team may be hammering out a possible deal don’t necessarily say anything about the progress of investigations into matters like obstruction of justice.
News that former Trump campaign aide George Papadopoulos was indicted and pleaded guilty to lying to FBI agents about his Russia contacts, for example, emerged like a “bolt out of the blue,” Zeidenberg said.
The prospect of other bolts raining down render the President’s rosy predictions about the probe’s impending conclusion unlikely, prosecutors warned.
“The idea that this is going to be wrapped up by the end of this year is laughable,” Zeidenberg said. “That I can say with a high degree of confidence is not true.”