This piece has been adapted from “Donald Trump v. The United States: Inside the Struggle to Stop a President” by Michael S. Schmidt.
Counterintelligence officials had concerns about the attempts by foreign countries to buy influence with President Donald Trump's children dating back to his transition. Before Trump was inaugurated, intercepted communications revealed evidence of foreign officials from more than one country discussing how they wanted to do business deals with the children in order to gain closer access to the administration. A wiretap picked up the United Arab Emirates' ambassador to the United States, Yousef Otaiba, discussing how he wanted to help Jared and Ivanka find a home in Washington, where they planned to move from New York before the president took office.
Counterintelligence officials had concerns about the attempts by foreign countries to buy influence with President Donald Trump's children dating back to his transition.
But the fears in the intelligence community only went so far. Sure, these countries could seek to exploit the children to gain access to Trump. That was bad. But foreign countries routinely had their officials and spies cozy up to the family members of elected leaders. Next on the ladder of concerns for American counterintelligence officials is ensuring that potentially vulnerable or compromised people are restricted from having access to classified information. The good news was that none of the children were going to be able to know the country's most sensitive secrets. The president's sons Don Jr. and Eric were going to remain out of government to run the family business. And while son-in-law, Jared Kushner, and daughter, Ivanka, planned to join the administration, they had said that reports during the transition that they would seek security clearances when they joined the White House staff were false.
But as the inauguration drew near, Kushner and Ivanka quietly began completing the background forms and extensive paperwork needed to get a top-secret-level clearance. Improbably, given his paucity of experience in the area of foreign policy or international relations, Kushner planned to take the lead on negotiating Middle East peace; of course, having a security clearance would be essential to that role. From the start, there were problems. In a section of his application in which he was required to disclose all of his foreign contacts, Kushner failed to list multiple meetings with Russians during the campaign and transition. The omission suggested that he may have broken the federal law that says those filling out the forms must be forthcoming and truthful.
"I have never seen that level of mistakes," said Charles Phalen, the top Trump administration official dealing with background checks for security clearances.
After at least four revisions to Kushner's background check document — in which more than a hundred names were added to his list of contacts with foreigners — the issue largely receded from the headlines, and Kushner was issued a temporary clearance, pending his background check, which entailed a proper vetting by the FBI.
But a year into Trump's presidency, Kushner still hadn't received a clearance, and this remained a source of real concern among senior White House staff. Then, in mid-February 2018, after the staff secretary — the top aide in charge of all the documents that are sent to the president — was fired following spousal abuse accusations about him in the media, it was revealed that the staff secretary, like Kushner, had been working since the beginning of the administration with only an interim security clearance.
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The White House came under intense scrutiny for not adhering to the norms of previous administrations in dispensing security clearances. In response to the outcry, John Kelly and Don McGahn worked together to put into effect a new policy: White House officials who had had interim security clearances for more than six months would have their clearances downgraded or revoked. The new policy directed attention squarely on Kushner and his security clearance. Along with the omissions and revisions, intelligence officials had concerns about Kushner's business dealings and personal relations with foreign leaders. At the time, Kushner's family owed more than $1 billion for their mortgage on 666 Fifth Avenue — a boxy commercial skyscraper in midtown Manhattan — and the Kushners were seeking funding from countries like China and Qatar. Among the concerns was that foreign leaders would seek to do personal business with Kushner to gain access to the White House.
Trump's indifference to norms — like protecting state secrets — had created a problem that hit very close to home and was now very public. But in a balkanized West Wing, concern over adhering to some vestige of White House norms had long since split the staff down the middle.
On one side were Kelly and McGahn, who believed that, given Trump's carelessness with several of the most important elements of the presidency, they had to act in the best interests of both the government and the country and serve as presidential guardrails. Kelly and McGahn felt as though they tolerated more petulant and self-destructive behavior from the president than anyone to have ever held the positions of White House chief of staff and White House counsel. Between policing Trump's ignorance of presidential traditions and norms of conduct and his obsession with settling scores and fighting with the media, both men felt as if they had time for little else.
On the other side were Kushner, Ivanka, and their allies, who resented any checks on their power, believing Kelly and McGahn were using this issue as a way to limit their power because they saw them as rivals. Trump liked the conflict between his children, on the one hand, and Kelly and McGahn, on the other, because it meant that they were distracted by undercutting each other and less focused on containing him. And with the president disengaged from the issue, the battle over security clearances would be a fight for survival pitting the chief of staff and the counsel against the president's family, with Kelly and McGahn fighting for the traditional process that ensured the security of sensitive material and Kushner fighting to maintain his dominance over the senior appointees in the West Wing.
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Under the new procedures created by Kelly and McGahn, those aides who had their background checks languish unresolved would have their clearances downgraded within a week. Of course, Kushner's clearance created a distinctive problem because he was the president's son-in-law, his clearance had already attracted a lot of unwelcome attention, and any decisions made about his access to classified documents would be highly scrutinized by the media and Congress. A year into the presidency, McGahn had learned many measures he could take to protect himself when faced with a difficult situation: Either his chief of staff would take contemporaneous notes, or he would write memos to the file himself. For the Kushner problem, McGahn needed to create a record, just in case. The issue was already receiving tons of media scrutiny. Kelly had been briefed on highly sensitive national security information about Kushner. And Kushner's lawyer had put out a misleading statement to the media about how the clearance was being dealt with.
So on February 23, McGahn sent a two-page memo to Kelly that laid out why he believed Kushner's clearance should be downgraded. The memo was marked "Sensitive, unclassified, privileged and confidential." McGahn began by memorializing the new policies that had been put in place. He said that among those whose clearances remained unresolved were some of the highest-ranking officials in the West Wing, including an assistant to the president and two special assistants to the president.
McGahn then tackled the biggest issue at hand.
"There remains the question of one assistant to the president, however, whose daily functions will be considerably impacted by the implementation of today's roll off," McGahn wrote, referring to Kushner. "As you're aware, there have been multiple reports in the media regarding this particular assistant to the president that have raised questions about the individual's fitness to receive the most sensitive national security information."
The White House counsel then laid out how Kelly had recently received a classified briefing about Kushner and had briefed McGahn about what he had learned.
"The information you were briefed on one week ago and subsequently relayed to me, raises serious additional concerns about whether this individual ought to retain a top security clearance until such issues can be investigated and resolved," McGahn said.
McGahn said he had been unable to receive the briefing or "access this highly compartmented information directly" about Kushner.
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Given all these factors — the unresolved background check and the derogatory information Kelly had been briefed on — McGahn made his recommendation, saying his clearance should be downgraded.
"According, in my judgement, the roll off of this individual for interim access to TS and TSSCI information, including the PDB (presidential daily briefing), is only appropriate at this time," McGahn said.
"Interim secret is the highest clearance that I can concur until further information is received," McGahn concluded, referring to the level of classified information Kushner would be able to access.
By reducing Kushner's clearance from top secret to secret, McGahn and Kelly had restricted Kushner's access to the PDB, the closely held rundown provided by the intelligence community six days a week for the president and his top aides, and other highly sensitive intelligence that exposed sources and methods.
McGahn did note that there was a possibility that when the background check was complete, it could be resolved in Kushner's favor, or there could be a recommendation that he not receive a clearance.
And then McGahn conceded that Trump could if he chose simply disregard any security concerns and circumvent any standard procedures and grant Kushner the security clearance himself.
McGahn conceded that Trump could if he chose simply disregard any security concerns and circumvent any standard procedures.
It was in 1883 that Congress had first implemented a standard process for examining a government employee's "fitness" for a job, and since then a system of culling government officials' backgrounds had been created and refined. What it had evolved to was far from perfect. But it had a track record of ensuring that state secrets remained secret and that foreign countries had to overcome great obstacles to infiltrate the president's inner circle and influence American domestic and foreign policy. Now that system faced a test — a test probably greater than any that has ever been publicly known. And that test came from the two people closest to the president. Kelly and McGahn believed that when pushed whether to side with the children or the country, Trump would pick the children. But they were not going to let Trump do that without a fight.
Three months after Kushner's clearance was downgraded, his background check had been completed, and McGahn and Kelly had to make a determination about whether to grant him a security clearance and at what level.
As he had done in February, McGahn wanted to create a record of how he handled the matter, and so he wrote another memo to Kelly.
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The subject line read, "Re: Security clearances for Jared Kushner and Ivanka Trump." "Background investigations, BIs, for both Mr. Kushner and Ms. Trump are both complete," McGahn wrote. "Individuals in the personnel security office were divided on opinion on whether to recommend granting a TS clearance at this time based on the unclassified information in the BI.
"The Central Intelligence Agency does not recommend granting the SCI clearance at this time," McGahn wrote, using the acronym for the most sensitive compartmented information.
"Given this situation as well as additional classified and sensitive information available to the White House counsel that it is not within the BIs [background investigations] review of the personal security officers or Central Intelligence Agency, the White House counsel does not recommend granting any adjudicated clearance at this time," McGahn wrote.
"Additional time and information may resolve some of these issues," he wrote. And in the final paragraph of the letter, in language that echoed his February memo, McGahn acknowledged that the president ultimately determines who should have access to the nation's secrets and could well ignore his recommendation.
"The president may ultimately grant a security clearance to an individual regardless of a BI or his staff's recommendation," McGahn wrote. "Should the President of the United States wish to bypass the established process by which the adjudicate clearances or override the recommendation of the staff and direct the granting of a clearance to Mr. Kushner or Ms. Trump, he may either by executing an order in his own hand or by issuing an order to the Chief of Staff to do so."
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The following day Trump told Kelly that despite the concerns of the agencies and over McGahn's objections, he would grant Kushner and Ivanka "Top Secret" security clearances.
Like McGahn, Kelly felt the need to take measures to protect himself.
"Memorandum for the file," read the memo at the top.
The subject line read, "Re: Security Clearances for Jared Kushner and Ivanka Trump."
The memo was only one paragraph.
"The President of the United States has ordered that Jared Kushner and Ivanka Trump be allowed to access national security information up to the Top Secret Level," Kelly said. "Accordingly, Jared Kushner and Ivanka Trump shall be granted Top Secret security clearances. Mr. Kushner and Ms. Trump shall be notified of their grant of Top Secret level security clearance."
Kushner and Ivanka had received their clearances.
Copyright © 2020 by Michael S. Schmidt. Adapted from "Donald Trump v. the United States” by Michael S. Schmidt, published by Random House on Sept. 1, 2020. Printed with permission.
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