You may not remember Divna Maslenjak. Her case before the Supreme Court this year did not generate a ton of headlines. But it’s worth comparing what the Trump administration tried to do to her for filling out a government form incorrectly to what Jared Kushner told Senate investigators about his own difficulty in filing an accurate form. It offers further evidence that in Trumpworld, there’s one legal standard for Donald Trump, his allies, and his family, and there’s another one for everyone else.
Maslenjak, an ethnic Serb, was granted refugee status by the United States in 1999 and U.S. citizenship in 2007. Her case, argued at the Supreme Court this past spring, arose when she was charged with illegally obtaining that U.S. citizenship because of false statements she made about her husband on her naturalization forms.
At oral argument in the case, several justices on the high court found themselves utterly horrified at the posture taken by Robert A. Parker, the Justice Department lawyer arguing on behalf of the government. Parker stated that even immaterial lies on forms submitted decades ago could be the basis for stripping U.S. citizenship from any naturalized immigrant at any time. Ironically, as Slate’s Ben Mathis-Lilley noted, first lady Melania Trump was likely in violation of that exacting legal standard in her own naturalization forms, in which she allegedly failed to disclose modeling work she had done while here on a visitor’s visa in 1996.
Happily, when the Supreme Court decided Maslenjak v. United States this past June, it was in a 9–0 opinion repudiating the extreme standard put forth by the Trump administration at arguments. The court ultimately found that Maslenjak’s false statements could be used to deport her only if they would have mattered to immigration officials at the time she made them. The case isn’t over; it will go back to the lower courts now for a second look.
Compare the story of Maslenjak with Jared Kushner’s remarkable statement offered up Monday about the many, many, reasons for the many, many false statements and omissions that were made on his SF-86 clearance form. Kushner has already been given three opportunities to get that form right, submitting it, amending it, submitting it again, and amending it again. Initially, he failed to disclose more than 100 calls or meetings with representatives from foreign countries, including Russia. The Russia meeting attracts particular attention because of the federal probe into possible collusion between the Trump campaign and Russia’s electoral sabotage efforts, as well as the recently uncovered meeting that Kushner attended that was set up to get government help from Russians.
In Kushner’s highly lawyered statement on Monday, he clarified that the reason he failed to get the form right on numerous occasions over many months was that he was very busy, his staff was to blame, his assistant misunderstood, his attorneys advised him he could always amend the form in the future, and he forgot last year’s infamous June 9 meeting. So, Kushner is too busy and important to attend to trivial government forms, too much a novice and an outsider to attend to those forms, and too much of both to pay attention to the purposes of a meeting with people promising campaign aid from a foreign adversary.
Also not worth Kushner’s time or attention: more than 70 assets, including an art collection worth as much as $25 million, that we learned last week he had also failed to disclose on his government forms.
Of course, Maslenjak didn’t have a team of assistants and aides and staffers to blame when she met with U.S. immigration officials in the midst of a civil war that was tearing her country apart in 1998. She clearly lied when she claimed in her interview seeking refugee status that her husband had fled to avoid conscription during the Bosnian civil war. In fact, he had served as an officer in the Bosnian Serb army. Ultimately, her lies were on her.
In wrestling with the meaning of the statute that would cover this lie, Justice Elena Kagan explained that there is a difference between a lie intended to procure citizenship and a lie told “in the naturalization process—even out of embarrassment, fear, or a desire for privacy.” Kagan went on to add that the prospect of stripping citizenship for any falsehood is beyond what Congress could have contemplated:
Suppose, for reasons of embarrassment or what- have-you, a person concealed her membership in an online support group or failed to disclose a prior speeding violation. Under the Government’s view, a prosecutor could scour her paperwork and bring a §1425(a) charge on that meager basis, even many years after she became a citizen. That would give prosecutors nearly limitless leverage—and afford newly naturalized Americans precious little security. Small wonder that Congress, in enacting §1425(a), did not go so far as the Government claims.
It’s hard to avoid the conclusion that the fundamental difference between Jared Kushner’s forms and those filled out by Davina Maslenjak isn’t so much that he is a citizen and she was not. The difference is merely what it has long been: that the law treats busy important rich men with large staffs as less accountable than mothers fleeing civil wars. The new twist on that rule is that Trump and his immediate circle don’t seem to think the law should apply to them at all. This is the endless drumbeat from Trump and his inner circle: Hillary Clinton should be investigated for corruption, and he should not. Clinton is accountable for her errors, and his grown son is a child. Conflicts of interests rules are for others, ethics rules are for others, and divestment and transparency are for others. It’s long been clear that the rules no longer apply to the White House in Trump’s America. Whether the rule of law applies is still an open question, but Jared Kushner’s answers are not a good indication that they will.