Jeff Sessions has a good excuse for not disclosing his Russia meetings. Jared Kushner doesn’t.

Jeff Sessions Has a Good Excuse for Not Disclosing His Russia Meetings. Jared Kushner Doesn’t.

Jeff Sessions Has a Good Excuse for Not Disclosing His Russia Meetings. Jared Kushner Doesn’t.

The law, lawyers, and the court.
July 14 2017 4:16 PM

Excuses, Excuses

Jared Kushner and Jeff Sessions both failed to disclose their Russia meetings to the FBI. One has a better explanation than the other.

U.S. Attorney General Jeff Sessions
U.S. Attorney General Jeff Sessions looks during a news conference in Washington on Thursday.

Aaron P. Bernstein/Reuters

Journalists and investigators poking around the Trump-Russia story are on the hunt for lies—or, to borrow a word from Kellyanne Conway, any “furtive” activity that points to a deliberate effort to cover something up. In recent days, there’s been scrutiny of two documents that seem a little furtive. Both are security clearance forms—one belonging to the president’s son-in-law and top adviser Jared Kushner, the other to Attorney General Jeff Sessions. Only one of them deserves to be viewed with suspicion.

Leon Neyfakh Leon Neyfakh

Leon Neyfakh is a Slate staff writer.

Kushner and Sessions had to fill out SF-86 forms as part of their FBI background checks. On those forms, they were asked whether they’d “had any contact with a foreign government … or its representatives, whether inside or outside the U.S.” at any point during the past seven years. It appears that both originally checked the box for “no,” even though they’d each met with dozens of foreign officials throughout the presidential campaign.

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On Friday, it was reported that Kushner had amended his form on two separate occasions. Here’s CBS News:

The first form had no foreign names on it even though people applying for a security clearance need to list any contact with foreign governments. Kushner's team said it was prematurely sent.
Then the team submitted the second one after they updated it with all of the names except for one—the Russian lawyer Natalia Veselnitskaya who met with Donald Trump Jr., Kushner, and Paul Manafort, Mr. Trump's campaign chairman in June 2016.
After omitting her name in the second form, that meeting was then conveyed to the FBI in the third revamping of the form before July.
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Why did this happen? According to Yahoo News, Kushner’s lawyers are blaming human error, calling the omissions from the form “inadvertent” and explaining that a member of Kushner’s staff had—in the words of Yahoo’s Michael Isikoff—“prematurely hit the ‘send’ button ... before it was completed.”

While we’ve known since early April that Kushner had omitted his meetings with foreign officials, this “dog ate my homework” excuse is focusing new public attention on what Kushner has lied about, and rightly so. Even if it’s true that a staffer’s greasy fingers are to blame for the errant submission, it doesn’t explain why Kushner failed to disclose his meeting with Veselnitskaya when he amended it for the first time. Given what we now know about that meeting—that it was pitched as a conversation with a “Russian government lawyer” who wanted to avail the campaign of some Hillary Clinton dirt—it’s hard to believe there’s an innocent explanation.

Sessions filled out his own SF-86 security clearance form in late 2016. Like Kushner, the soon-to-be attorney general declined to mention any of the many meetings he’d taken with foreign dignitaries during the campaign, including his in-person conversation with Russian Ambassador Sergey Kislyak.

When Sessions’ failure to disclose his meeting with Kislyak to the FBI was first reported by CNN in May, it felt like a sequel to a controversy stemming from the attorney general’s January confirmation hearing. At that time, Sessions indicated under oath that he’d never had contact with Russian officials during the 2016 campaign—testimony that was revealed to be untrue in March, when the Washington Post reported on Sessions’ meeting with Kislyak and a separate interaction between the two men at the Republican National Convention. 

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In the wake of the Post story, the attorney general explained at a press conference that he thought he was only being asked about contacts he’d had with Russian officials about the Trump campaign. He stressed that he and Kislyak hadn’t talked about the election, which was why it hadn’t occurred to him to mention the meeting when asked about it during his confirmation hearing. Even so, Sessions announced, he’d decided to recuse himself from overseeing the FBI’s investigation into possible collusion between the Trump campaign and the Russian government.

The fact that Sessions didn’t tell the FBI about his meeting with Kislyak was confirmed on Thursday when, under pressure from a watchdog group called American Oversight, the Justice Department released a one-page excerpt of the form containing the relevant question and answer. We can now see for ourselves that Sessions indeed marked “no” in response to the question about contacts with foreign governments. But as “furtive” as this may look against the backdrop of the earlier confirmation hearing incident, it does not strike me as a meaningful omission.

For once, it seems to me, the Trump administration has an explanation that doesn’t strain the imagination. As representatives for the DOJ pointed out back in May, Sessions didn’t just fail to disclose his meeting with Kislyak—he also failed to disclose two dozen other meetings with foreign dignitaries, including ambassadors from Bulgaria, Lithuania, Hungary, Korea, Italy, Australia, and Germany. The DOJ defended Sessions’ decision not to include any of these meetings on his SF-86 form, putting out a statement saying the attorney general didn’t think he was supposed to list meetings he’d taken in his capacity as a senator. According to the statement, Sessions had been following instructions provided to a member of his staff by an FBI investigator:

As a United States Senator, the Attorney General met hundreds—if not thousands—of foreign dignitaries and their staff. In filling out the SF-86 form, the Attorney General’s staff consulted with those familiar with the process, as well as the FBI investigator handling the background check, and was instructed not to list meetings with foreign dignitaries and their staff connected with his Senate activities.
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A DOJ spokesman told me the FBI investigator’s instructions were communicated to one of Sessions’ Senate staffers in July 2016, before either of the Kislyak encounters reported by the Post had taken place. The spokesman said the staffer was helping Sessions fill out his SF-86 form as part of a vetting process being conducted by the Trump campaign. The spokesman wouldn’t go into details about the parameters or purpose of this vetting process, but the timing suggests Sessions could have been under consideration to be Trump’s running mate.

According to the DOJ account, Sessions filled out the SF-86 form a second time in November, a few days before the election, as part of his official FBI background check. This was a distinct process from the vetting Sessions had undergone back in July and was carried out under the assumption that if Trump won the election, Sessions would have a place in his administration. At that point, the DOJ spokesman told me, Sessions and his staff proceeded under the assumption that the instructions they’d received back in July regarding the “foreign governments” question were still operative.

Call me naïve, but I find this account credible. In order to see it as suspicious, you’d have to believe Sessions deliberately elided a slew of benign meetings with ambassadors to conceal the fact he’d met with Kislyak. Anything’s possible, I guess, but it seems like a stretch. Why would Sessions feel the need to conceal the Kislyak meeting given that it was just one of so many others? Even if he did discuss something inappropriate with Kislyak, wouldn’t his conversations with all the other ambassadors he met with be camouflage enough?

Austin Evers, the executive director of American Oversight, told me he didn’t have any evidence to suggest the DOJ was lying about the Sessions team following instructions it had received from an FBI investigator. But he argued that it didn’t matter: “Even if his staffer got instructions saying he didn’t need to include all the routine meetings he had as a senator, you’d think that in the context of national security … there are some meetings that would jump out—meetings you’d want the FBI to know about.” A meeting with the ambassador from Russia, Evers said, is not the same as a meeting with the ambassador from the Vatican. In other words, even if Sessions was told he could leave it out, he should have known better.

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Evers also said we shouldn’t forget about the interaction between Sessions and Kislyak at the RNC in July—the second “meeting” that the Post reported on in March. “Even if you take Jeff Sessions at his word, his meeting at the RNC with Kislyak was not in his official capacity as a senator,” Evers told me.

Evers has a point there: Though the DOJ has insisted in the past that Sessions and Kislyak spoke after a speech Sessions was giving in his capacity as a senator, Politico has reported that Sessions was clearly introduced before his remarks as a national security adviser to Trump. Even so, I can’t work up much outrage over Kislyak showing up to this RNC event—a Heritage Foundation conference to which a total of 80 ambassadors were reportedly invited—and approaching Sessions after listening to him speak. Is that really a meeting? Was Sessions really supposed to disclose on his SF-86 form that he’d been in a room with every foreign dignitary who attended this conference?

Context is everything, of course, and when you consider what Evers calls the “mosaic of troubling [Russia-related] evidence about this administration broadly, and Jeff Sessions specifically,” maybe it makes sense to assume the worst. That reasoning cuts both ways, though. Compared with some of the other material in that mosaic now, the suspicions around Sessions’ security clearance form feel flimsy. When you’ve got Kushner blaming staffers for hitting “send” too early and meeting with someone described to him as a “Russian government lawyer” for the purpose of obtaining opposition research on Clinton, is it really worth focusing on a misstep by Sessions that the DOJ has credibly defended?

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