Special Counsel Robert Mueller’s indictment of Paul Manafort and Richard Gates and Information against George Papadopolous offer clues on the charges that Mueller may file against former National Security Advisor Michael Flynn, and where Mueller will look for vulnerabilities against Jared Kushner, President Donald Trump’s son-in-law. Mueller’s focus is likely on false filings with the U.S. government, whether on required registration forms, federal income tax forms or security clearance disclosure forms.
Prosecutors often view false filings with the federal government similar to false statements to federal enforcement agents as easily prosecutable offenses, as long as the prosecutors can establish criminal intent. In fact, charges for knowingly making false statements on or material omissions from security clearance disclosure forms also fall under the false statements statute, title 18, section 1001, which makes the offense a felony and provides for fines and up to five years imprisonment. The typical prosecutor’s view is such charges are black and white. Either the statement is true or it is not. Intent always is a necessary component for a criminal case, and as this writer’s go-to person on national security issues, security clearances, and FARA, Scott MacGriff, points out, “the real problem comes, not necessarily with the contacts themselves — although those can be an issue — but with the deliberate attempt to conceal those contacts, relationships and influences.”
With FARA filings, as well as failing to check the box on federal income tax forms about foreign bank account ownership, both central to the Manafort-Gates indictment, the starting point is understanding FARA. The Foreign Agents Registration Act, commonly known as FARA, requires that individuals conducting certain activities on behalf of a foreign power, or foreign political party, disclose their relationship and the scope of their activities. Congress enacted FARA in the late 1930s in response to activity in the United States of agents from Nazi Germany. The point behind the statute is to reveal the way in which foreign adversaries (and allies) are attempting to influence public opinion and public policy in the United States. Interestingly, there is a tension in that process that is part of an active and ongoing debate – should the Government use the information revealed (or the failure to reveal information) to actively investigate and prosecute companies and individuals, or, should it take a softer approach in the hope of encouraging more voluntary reporting without the threat of an active hammer for failing to report. The recent indictments using a failure to comply with FARA requirements as a tool of investigation and prosecution directly weighs into that debate; prosecutions under that statue are few and far between.
During the late spring and summer of this year, Kushner’s form SF-86 security clearance application received considerable media attention. The Form SF-86 is the painstakingly detailed security clearance questionnaire that applicants for a security clearance complete to enable investigators to conduct a background investigation. The level of detail the form demands is so comprehensive that it comes just short of asking about what color socks the applicant wore when the applicant had contact with a representative of a foreign government while standing in a food-service line at a soccer match in Europe four years ago. The form asks for all “contacts”, which is much broader than “meetings.” Given the timing of the appointment of the Special Counsel and Kushner’s multiple revised filings, Mueller’s reputation for thoroughness may have instigated Kushner’s, and probably others’, re-review and revisions to SF-86 applications for a security clearance. The mere need to review and revise does not mean there was a violation of law, let alone an intent to be incomplete. Nevertheless, no one can argue with the need for absolute candor and truthfulness by the applicant for a security clearance in the security clearance process.
Putting some perspective on the security clearance process also may promote understanding of some of the issues. The SF-86 form serves as the springboard from which the security clearance investigation launches. The FBI uses the SF-86 to investigate Kushner’s and other applicants’ truthfulness and suitability for the nation’s highest trust. MacGriff, a former Department of Justice official and former U.S. Justice Attaché to Afghanistan, explained that, “fully vetting those entrusted with classified information is critical, and the SF-86 starts that vetting process.” MacGriff added that “vetting alone does not guarantee trustworthiness; active vigilance is required. Even when an individual is fully vetted, a determined adversary can find cracks to exploit.”
For those reasons, many agencies inside the US Government simply do not rely alone on an FBI interview and investigation of background information when deciding to grant a security clearance. Agencies, including the FBI itself, often require an applicant to undergo a polygraph examination. Say what you wish about the effectiveness and reliability of a polygraph, the subject of a real and long-standing debate, the fact remains that our nation’s intelligence agencies and several federal law enforcement agencies rely on polygraph results as further evidence of an applicant’s trustworthiness. We do not know whether Kushner, Flynn and other White House senior staff were subjected to a polygraph examination, and the President certainly has the discretion to enable his senior staff to access highly classified government secrets. Meanwhile, the majority of individuals in positions below Kushner, Flynn and other Presidential advisors who touch the classified information and pass along the information will have been required to pass successfully a polygraph examination on an initial basis, and periodically thereafter. That is yet another reason truth, candor and transparency of foreign contacts play such a crucial role in evaluating the suitability for service of senior Government officials.