What's next for Jared Kushner's security clearance?

The White House’s insistence that Jared Kushner’s work will not be affected by chief of staff John Kelly’s crackdown on interim clearances — a move Kelly made after former staff secretary Rob Porter’s situation became public— may prompt as many questions as it settles regarding Kushner’s role in the White House and his level of access to sensitive information.

President Trump’s son-in-law and senior adviser has the ear of the president and a portfolio that has expanded in the last year, encompassing issues from relations with Mexico to Middle East peace. White House press secretary Sarah Sanders has repeatedly declined to comment on Kushner’s clearance status, saying it isn’t the policy of the White House to do so. Kushner has reportedly operated on an interim clearance to do his job since joining the White House in January 2017.

But Kelly ordered an end to all top-level security clearances with investigations pending since June 1, a change that went into effect on Friday. Also on Friday, Mr. Trump stated that he would leave any decision about whether to grant Kushner a waiver up to his right-hand man, Kelly.

“That’ll be up to General Kelly,” Mr. Trump said in a press conference with the Australian prime minister Friday. “General Kelly respects Jared a lot, and General Kelly will make that call. I won’t make that call.”

But questions about the status of Kushner’s clearance, his access going forward, and why he has been unable to obtain a permanent clearance so far remain unanswered. The White House did not return a request for comment for this story. 

On Friday, the Washington Post reported Deputy Attorney General Rod Rosenstein called White House counsel Don McGahn on Feb. 9 to tell him there were significant issues with Kushner’s clearance, and that was currently keeping him from gaining a permanent clearance. The Post did not explain what those issues might be.

To former Intelligence Community Inspector General Charles McCullough, who is now a security clearance attorney for Tully Rinckey PLLC, it’s shocking that Kushner — and reported dozens of others in the White House — still lack permanent clearances after more than a year.

“I guess the thing that really stuns me is that, here we are a year into this, and I’m sure most of these people are clearable,” McCullough said in an interview. “I don’t think this is a situation where they’re not clearable. I’m just wondering why they’re not cleared yet. What’s going on bureaucratically that the bureau can’t work with the White House Security Office and get everyone cleared?”

White House staffers are “usually an extreme priority,” he said.

“You would think someone like the president’s son-in-law wouldn’t be waiting very long for his clearance,” he added.

There are, however, a few things that could be holding up the clearance of not only Kushner, but others in the Trump White House, McCullough said.

Kushner, whose vast business interests include foreign investments and foreign contacts, could certainly be part of the holdup, McCullough said. Kushner has amended his financial disclosure forms dozens of times since joining the White House, according to public records from the Office of Government Ethics.

“I guess he’s got a lot of foreign travel, I understand that. He has a lot of foreign investments, I understand that,” McCullough said. “But this is the president’s relative, his son-in-law. I would think that — a key position in the White House.”

Being unwilling to divest some financial interests could also pose problems, McCullough said. The two most common reasons for delaying or denying a security clearance, McCullough said, are foreign influence and failure to disclose information on an initial security clearance application, called an SF-86.

Part of why it’s taking so long for the White House clearance process — NBC reported earlier this month that more than 130 people working in the executive office of the president had an application pending as of November — is that the Trump White House has ushered in aides without previous government experience who have extensive business ties, and business ties abroad, McCullough said.

“These people are in business, so they’re jet-setting all over the place,” McCullough said. “They have a lot of money and they have a lot of investments. These are just tailor-made for headaches for the clearance process, because these are people who are not like your typical 25- year-old just coming in.”

“Draining the swamp, you’re also draining the government people who are cleared,” McCullough said.

The influx of non-government business people working in the administration is probably the best explanation for some of these delays, said Sean Bigley, a national security attorney and managing partner of Bigley Ranish, LLP, who worked in former President George W. Bush’s White House. 

“It takes time to really unravel all that and really get a picture of what those interests are and what potential concerns there might be from a national security perspective, or you know, just a conflict of interest perspective even,” Bigley said. “That’s something that I think is unusually prevalent in this administration. But it’s not necessarily a bad thing, it just means that it takes more time.”

The small Executive Office of the President (EOP) security office has also long been a “chokepoint” in the security clearance process generally speaking for the White House, said Bigley. 

“There’s not a lot of accountability in that office,” Bigley said, citing “bureacratic inefficiency” and a “lack of real motivation to work.” “And so I think that’s what you saw with General Kelly’s memorandum is kind of reading between the lines, he’s saying, ‘All right, we’re going to go around these guys and neutralize this as a problem,’ because that is truly where the choke point is.”

“This particular office has presented a challenge I think for a lot of administrations,” Bigley added. “You look back historically, even Obama, Bush, there were always complaints about security clearances taking a long time. And that’s not supposed to be the case. When you have high-level political appointees, they’re supposed to be handled on an expedited basis. And normally the FBI as the investigative entity, they do that. But they they turn over their findings to EOP security for adjudication and they sit and sit and sit. I mean, I’ve had cases where people’s adjudications have been sitting on somebody’s desk in EOP security for a year. And it’s like, what on earth are you guys doing? It’s that bad.”

But McCullough said special counsel Robert Mueller’s probe, whether directly or indirectly, could also be throwing a wrench in Kushner’s clearance.

As CBS News reported in September, members of the president’s legal team became concerned about Kushner’s role in the White House after they became aware of his June 2016 Trump Tower meeting with the president’s eldest son, Donald Trump Jr., and a Russian lawyer. The Senate Judiciary Committee has certainly expressed interest in any Kushner contact with Russians. That committee asked for more information from Kushner about a “Russian backdoor overture and dinner invite.” CNN reported last week that Mueller’s investigation has expanded to include Kushner’s alleged attempts to acquire foreign financing for his family’s company during the presidential transition.

“It gets twisted up in the Russia thing too,” McCullough said. “If you have somebody who is under — I won’t use the phrase under criminal investigation — but somebody who could be a witness or a subject who is right now a subject of a criminal investigation, and there was all this stuff just the last couple weeks about Jared coming out about how they’re looking at his finances, and everything else. The bureau (FBI) is also doing the clearance. And so, the right hand and left hand do talk to each other over there. The last thing they want to do is go grant the clearance and then indict him a week later.”

“I know that they are conducting a fairly broad investigation that involves many people currently in the White House,” McCullough added. “That’s certainly something they would have to consider is, where is the investigation going? Because we have security clearances that we’re about to adjudicate and grant for these people.”

McCullough said it’s still likely Kushner gets cleared eventually. In the meantime, the White House has insisted Kushner’s role is unaffected by Kelly’s changes. That could have a few implications.

The New York Times has reported Kushner may be outside the June 1 deadline set by Kelly. Kushner, the Times reported, initially failed to disclose scores of contacts on the standard form required for all prospective government officials, and has since amended his submission, in a way that delayed his background check. The Times reported that his background information was not submitted in its entirety until after the June 1 cutoff.

But, if Kushner’s clearance is yanked by Kelly, he wouldn’t be able to participate in the president’s daily briefings any longer, McCullough said.

Of course, the president — as the original classifying authority — could choose to declassify any information he wants for Kushner, McCullough said. Still, the president has said he would leave a decision for any waiver of Kushner’s clearance up to Kelly.

But the White House’s confidence that Kushner can continue in his role also raises questions about whether he absolutely needs a clearance in the first place, McCullough said.

“Well, if he’s doing the same thing he was before but he doesn’t need a clearance, why did he need a clearance to begin with?” McCullough said.