THE KUSHNER-FLYNN “BACKCHANNEL” LINK TO PUTIN AND HIS RUSSIAN COHORTS WAS PART OF THE PLAN FROM THE BEGINNING, NOT THE PRODUCT OF SOME NAÏVE IMPULSE OR “CRAZY IDEA”

Some commentators have concluded that the extraordinary proposal by Jared Kushner and Michael Flynn to Russian Ambassador Kislyak made on December 1 or 2, 2016 at Trump Towers must have been either “naïve” or “just a crazy idea.” It was neither.

The proposal hatched by Kushner and Flynn – to establish a backchannel communications network with Moscow using the secure facilities at the Russian embassy or consulate — was part of a carefully thought out plan that Flynn had been working on for months, and with which Kushner was in full agreement.

Both Kushner and Flynn viewed the U.S. intelligence community – and indeed all U.S. law enforcement agencies and virtually the entire federal government – with deep suspicion, if not animosity. Conversely, they both viewed Russia as their friend and ally, not as a hostile foreign power. They each had their own different personal, ideological and business reasons that led them to this same startling conclusion, but they both ended up in the same place nonetheless: in a room with the Russian Ambassador discussing a scheme to deceive and circumvent the entire U.S. intelligence/law enforcement apparatus.

President Obama had fired Flynn as the Director of the Defense Intelligence Agency (DIA) after Flynn had shown an alarming degree of coziness with Russian intelligence services, particularly the FSB, for the ostensible reason of trying to enlist Russian cooperation in the fight against ISIS in Syria and elsewhere. Flynn spent a day at FSB headquarters in Moscow and otherwise started to act as if the Russians were our closest friends, not a hostile power on which we had imposed highly restrictive sanctions after carving off a large slice of Ukraine for itself and otherwise threatening the peace and tranquility of most of Eastern Europe. Flynn just didn’t get it, and so he had to be sacked.

Unrepentant, Flynn flouted the law by accepting a paid speaking engagement at a Russian dinner sponsored by RT (Russia Today), Russia’s primary state-sponsored propaganda outlet, and dining with Putin himself. He also accepted fees from at least one other Russian company within Putin’s inner orbit, without getting prior approval from the U.S. Defense Department, as was required for any retired U.S. military personnel.

But it wasn’t just about the money for Flynn, although the Russian cash was a nice supplement to his modest military pension. One way or the other, Flynn had come to the world view that Russia, as a primarily Christian nation, was America’s greatest potential ally in what he considered to be the developing apocalyptic battle with radical Islamic terrorism, and with Islam itself. When America finally woke up from its stupor and realized that its true enemy was Islam, not Russia, Flynn would be ready to help lead the country back to the true path – the protector of Western Civilization itself — and onward to its ultimate destiny.

Jared Kushner’s affinity for Russia, and suspicion of the FBI and federal law enforcement in general, was not ideologically based, but it was equally strong. As a young man of 23 he had suffered the indelible trauma of seeing his beloved father arrested, prosecuted, convicted and imprisoned on what he believed to be bogus charges. The conspiracy theory on which the federal prosecutors (under then U.S. Attorney Chris Christie’s leadership) convicted the senior Kushner involved lurid details of hired prostitutes and family intrigue that provided almost daily fodder for the New Jersey and national press.

Jared had suffered the embarrassment and disgrace of seeing his father sentenced to federal prison in Alabama, young Jared was forced to take over the reins of his family’s real estate empire, while dutifully flying down to Alabama each weekend to visit with his father. Even after his father’s release from prison, Jared continued to bear the emotional and psychological scars, viewing the U.S. government as basically a hostile adversary to be kept at arms-length whenever possible, especially when it came to family matters. With his marriage to Ivanka, the Kushner and the Trump organizations came together very neatly, much as if two Mafia families had forged an alliance through marriage.

Jared’s affinity for all things Russian was for commercial reasons, not psychological. He had seen that Russian money had come “pouring in” (in the words of Donald Trump, Jr.) to the Trump Organization just when it was in danger of collapsing after four successive casino bankruptcies in Atlantic City, New Jersey. The major banks financing the Trump casinos had taken a major financial bath as a result and had lost their appetite for further financing of Trump’s ill-conceived ventures.

Fortunately for Trump and his organization, Russian, Ukrainian and Central Asian oligarchs had billions of dollars looking for safe havens in the West to park their money, and Russian organized crime was always looking for friendly real estate developers to help them launder their ill-gotten gains. The Trump Organization was more than willing to accommodate them. Many of the original purchasers of condos in Trump Tower and other Trump projects hailed from Russia and other former Soviet countries, and Trump entered into a close working relationship with Tevfik Arif and his Bayrock organization, which had direct ties to Putin’s inner circle and Russian organized crime, which by that time had largely merged into one large state-sponsored criminal political organization.

For Trump and his son-in-law Jared, therefore, Russia was actually the savior of their real estate empire, and Russian money was the lifeblood that kept their luxury real estate projects going, one after the other. The model was simple: build a luxury condominium complex in New York or South Florida and they will come, with their hundreds of millions. When Trump built his Sunny Isles Florida towers just north of Miami, the business plan was to market the condos directly in Moscow, St. Petersburg, the French Riviera and other locales where the Russian super-rich congregated. A virtually impenetrable labyrinth of LLCs and shell companies was formed to disguise the identities of the true owners, who could then purchase the units with millions of dollars in cash of unknown or questionable origin – no questions asked.

The effusive warmth that Trump showered on Putin and all things Russian during the campaign may have been surprising to many, but not to Kushner, Flynn and those who knew that the financial fate of the Trump Organization was largely in the hands of the Russians, and that if Putin directed that Russian financing be pulled out, the Trump ship would quickly founder and then sink, virtually without a trace. Trump’s destiny was inextricably linked with that of Putin, and Trump was intent from the beginning that Putin know that he would be a loyal and faithful ally of Russia in the unlikely event that he was to be elected as President, and that the crippling sanctions imposed by the U.S. and its Western European allies would quickly be lifted.

At first, Flynn and Manafort were the primary conduits between Russians and the Trump Campaign, and they delivered a tangible reassurance to the Russians by ensuring that the plank in the Republican National Platform be watered down, so that it omitted any reference to a U.S. intention to provide defensive military equipment to Ukraine, which had suffered the annexation of Crimea and was being pressed by pro-Russian separatist and Russian special forces in eastern Ukraine and desperately needed military equipment and spare parts from the U.S.

Then came the tightening of U.S. sanctions by the Obama Administration, at least in part due to the growing conviction by U.S. intelligence agencies that Russia was actively trying to interfere with the 2016 Presidential elections through a sophisticated propaganda and data analytics campaign, which flooded Facebook and other social media platforms with disinformation and fake news stories that were both directed at undercutting the Clinton campaign and promoting Candidate Trump. This effort was closely coordinated with Julian Assange and WikiLeaks, which by then was little more than an arm of the Russian intelligence services for the purpose of the strategic release of tens of thousands of pages of documents hacked from the DNC, the Clinton Campaign, and other sources designed to inflict the maximum damage on Clinton and the Democrats.

Flynn was quickly dispatched by the Trump Campaign to assure Kislyak and the Russians that the anti-Russian tide would shift if Trump were to be elected, and that sanctions would be quickly lifted. In response, Putin and the Russians showed remarkable restraint in response to the expulsion of 35 of their spies operating in the U.S. under diplomatic cover and the further tightening of U.S. sanctions. They uncharacteristically announced that they would wait until after the election before deciding on a response. In other words, if Putin’s nemesis Hillary Clinton were to be elected as President, then Russian would retaliate in kind. If Donald Trump were to be elected, they would wait and see if he made good on his promises –conveyed through Flynn, Manafort (and to a lesser extent by Carter Page) – that U.S. would be lifted.

Jared Kushner also played a key – but heretofore lesser known role – in the successful Russian/Trump collaboration that essentially turned over the keys to the White House to a hostile power for the first time in American history.

Jared had dabbled in data analytics and “micro-targeting” efforts in the marketing of his family’s luxury condominiums, and he became the point man in the Trump Campaign for merging the campaign’s relatively anemic outreach efforts on social media with the sophisticated data analytic techniques of Cambridge Analytica (CA). CA, a Robert Mercer-owned company that originally worked for the Presidential campaign of Senator Ted Cruz until Mercer moved his considerable hedge fund resources in favor of Trump, had developed an approach that succeeded in “weaponizing” social media political efforts with the use of individually-based psychological profiling of voters that made the pro-Trump or anti-Hillary messaging virtually irresistible. Cambridge Anaytica’s parent company in the U.K. – Strategic Communications Laboratories (SCL) — had helped engineer the upset vote in favor of Brexit that led the UK out of the European Union.

Under the watchful eye of Jared Kushner, and with the assistance of Steve Bannon, who moved over to the Trump Campaign from Breitbart News, another Mercer-owned entity, Cambridge Analytica developed a sophisticated marketing strategy that closely paralleled – and indeed mimicked – the already established efforts of hundreds of Russian-financed “trolls” (computer operators) who were flooding American social media platforms with fake sites posing as “grassroots organizations” spewing Russian disinformation and fake new stories plucked from Breitbart News, Alex Jones’ Infowars or other alt-right media outlets. Both the Russian-backed operators and their parallel U.S.-based allies within the Trump Organization and its data analytical contractors –such as CA – were able to micro-target voters in key voting precincts in key battleground states (e.g. Michigan) with laser precision because they had available to them huge databases of publicly available information on virtually every man, woman and child in the U.S., as well as critical voter rolls that had been hacked by the Russians and – possibly – shared with the Trump Campaign to help them micro-target their efforts to reach voters in key precincts that would prove to provide the decisive edge on election day.

When the Washington Post and other news organizations recently reported that Jared Kushner was a “person of interest” with regard to the FBI’s investigation of possible collusion between the Trump Team and the Russians, most of the focus was on the aborted plan to open a back channel line of communication with the Russians. However, the much more significant activities that Kushner engaged in had to do with the significant – and possibly decisive – coordination between the Trump Campaign’s social media campaign and that of their Russian counterparts. Of particular interest to the FBI is the uncanny speed with which the Trump Campaign was able to capitalize on the WikiLeaks data dumps of thousands of pages of DNC/Clinton Campaign documents, raising the suspicion – if not probability – that the Trump Campaign had been given advance copies of the key documents or their metadata, so that these purloined documents could be utilized almost instantaneously once the Russians/WikiLeaks publicly released them. Indeed, some of the “chatter” that the FBI is undoubtedly looking into is that one of the biggest fears that the Trump Campaign had was that someone would “jump the gun,” and that information from the WikiLeaks documents would be used by campaign operatives before the official release date by WikiLeaks.

Jared Kushner should thus be questioned under oath by the Senate Intelligence Committee and by the FBI on a wide range of subjects, not just his inexplicable omission of reference to his Kislyak meetings on his security clearance forms. During the Transition, Kushner also apparently had undisclosed meetings with Putin-crony Sergey Gorkov, the head of the Russian state-owned Vnesheconombank  (VEB) and former deputy chairman of Sberbank, Russia’s largest state-controlled bank.

Since Kushner (like Flynn) was still a private citizen during the transition period, he is subject to criminal prosecution under the Logan Act (1 Stat. 613, 18 U.S.C. § 953), which prohibits an unauthorized United States citizen from negotiating with foreign governments having a dispute with the United States.  He may be also liable under the Espionage Act, which the Obama Administration aggressively used – to the general applause of Republicans – for the leaking of national security secrets by Chelsea/Bradley Manning, NSA operative Eric Snowden and others.

Kushner must also account for his role as the chief coordinator of the Trump Campaign’s data analytics and social media campaign, and how it came about that it so closely mimicked and paralleled the Russian-backed political efforts that were virtually choreographed with the WikiLeaks disclosures of illegally-hacked documents.

In the meantime, Kushner’s top-secret security clearance should be suspended pending further investigation. Many U.S. intelligence operatives and officials have had their clearances suspended for completely inadvertent omissions from their security clearance forms of meetings that they had with government officials from friendly and even allied foreign governments or the omission of personal financial information.

In Kushner’s case (as well as that of Flynn), the failure to make the necessary disclosures was far more serious – and indeed sinister – since it is impossible to believe that such omissions were “inadvertent.” It is unreasonable to believe that Kushner somehow “forgot” to disclose highly sensitive meetings with the Russian Ambassador or a chief Russian banker about highly significant matters, whether it be about the lifting of sanctions, possible Russian loans to the Kushner/Trump real estate empire, the establishment of an unprecedented backchannel communications line with the Kremlin, or other matters. No matter what was discussed, such contacts with Russian officials should have been disclosed, and the failure to do so is strong evidence of an intent to deceive U.S. law enforcement/intelligence officials, and evidence of a guilty mind.

The smell of Treason is truly in the air, and all appropriate steps must be quickly taken to deprive Kushner of any further access to America’s secrets pending further investigation and to ensure that the wheels of justice swiftly turn. Never before in American history has the White House been potentially infested by collaborators with a hostile foreign power, and never since General Benedict Arnold secretly swore allegiance to the Crown and became a British spy has the Republic been so threatened.

THE CURRENT ASSAULT ON FREEDOM OF THE PRESS AND OTHER CORE AMERICAN VALUES

 

One of the most troubling aspects of Donald Trump’s campaign, from a constitutional and legal perspective, is that he is the first presidential candidate in history (or at least in my lifetime) who refuses to accept as a “given” established core values of our constitutional democracy. These core values include Freedom of Speech and of Religion, which are embedded in the First Amendment to the U.S. Constitution, and the Equal Protection and Due Process Clauses of the Fifth and Fourteenth Amendments.

If Donald Trump’s campaign is any indication of what a Trump Administration would be doing, then we can anticipate that the freedom of speech and expression exercised by non-violent protesters at his rallies would continue to be suppressed. Mr. Trump himself has repeatedly urged his supporters at his mass rallies to assault non-violent protesters. He has also made a continuing practice of belittling and berating the press for its coverage of his campaign and has even withheld press credentials from certain news organizations that have had the temerity to report on certain aspects of his campaign in a negative light.

On Monday, September 19, 2016, immediately after a series of bombings in New York and New Jersey, Trump blamed “freedom of expression” as a potential roadblock to the war against terrorism. In an interview on Fox News, Trump blamed freedom of the press for the fact that magazines were being sold that published bomb-making instructions. He did not identify which magazines he was referring to, but presumably, he was referring to Al Qaeda’s English-language propaganda magazine, Inspire, or jihadi websites that publish bomb-making instructions. What Trump failed to note – perhaps because he does not himself know – that these kind of magazines are not sold at any mainstream U.S. bookstores or newsstands.

Trump’s suggestion that First Amendment freedoms should be eliminated, or at least abridged, under the guise of supporting the fight against terrorism is reminiscent of Putin’s heavy-handed attacks on press freedom in Russia by labeling all media opposition there as unpatriotic or treasonous.

Over the past few years, numerous prominent Russian reporters have been found murdered or have “disappeared” after writing articles critical of Putin and his inner Kremlin circle. Similarly, the political opposition in Russia has been mostly crushed with the jailing or exile of several prominent political opposition leaders. As Timothy Snyder pointed out in a recent New York Times article on Russian fascism (09/21/16), Putin has long idolized Ivan Ilyin, the founding father of Russian fascism, who believed that individuality, diversity, and democracy were evil, and that the only thing that was important was a Holy Russia governed by a “national dictator.” Writing in the 1930s and 1940s, Ilyin looked to Mussolini and Hitler as the kind of leaders who could save Europe by destroying democracies and the individual freedoms that went along with them.

Trump’s real concern with the press and American media in general is that it has been largely critical of both him and the policies that he has espoused in his campaign, suggesting, for example, that his proposals to build a multi-billion-dollar Wall on the southern border with Mexico would be ineffective at stemming the flow of Mexican immigrants, a nonsensical waste of money and resources, and an environmental catastrophe. The press has also portrayed him and his campaign as xenophobic, misogynistic and racist, which Trump has considered being “unfair” and “false”, even though mainstream reporting is, for the most part, backed up with a wealth of documentary support. Trump has now ratcheted up his criticism of the press by suggesting that the media coverage of his campaign and press freedom in general is basically harmful to the country as long as we are in the midst of an existential war on terrorism.

What Trump seems to be missing, or at least ignoring, is that America’s longstanding tradition of a free and uncensored press is precisely part of what has made this country an exceptional example of how real democracies are different from autocratic pseudo-democracies such as Russia, Turkey and countless other “republics” in name only around the globe.

A likely reason why Trump has expressed such admiration for President Vladimir Putin of Russia is that, if elected, he would like to emulate Putin’s iron hand when it comes to the press and political dissent. Correspondingly, Putin’s embrace of Trump and aversion to Hillary Clinton springs from his belief that Clinton, as Secretary of State during the Russian parliamentary elections of December 2011 and the presidential elections of March 2012, gave the signal to the Russian opposition to demonstrate in the streets against the rigged elections and stuffed ballot boxes that kept Putin and his ruling party in power. Putin forced all nongovernmental organizations as “foreign agents” and branded all political opponents as enemies of the Russian state. It is not surprising, therefore, that Putin would support Trump and release hacked emails embarrassing the Democratic National Committee and Hillary Clinton, since Trump has reciprocated by expressing agreement with most of Russia’s foreign policy, including the weakening of NATO and the democratic republics of Western Europe and Ukraine. Just as the institutions of democracy have been hollowed out in Russia and reduced to a sham, the undermining of democracy in the U.S. and Western Europe is also part of the grand design of Putin and his former KGB cronies.

Given Trump’s affinity for Putin and the way that he has been able to control the press and to suppress dissidents in Russia, it is likely that President Trump would take similar steps to “discipline” the U.S. mainstream press, but denying White House press credentials to reporters who consistently question Trump’s policies and practices, by having his administration challenge the FCC licenses of offending news organizations, and other measures designed to stifle a free press. Borrowing from Putin’s playbook, opposition political leaders would also be likely subjected to a barrage of investigations and prosecutions by a politicized U.S. Dept. of Justice, with perhaps Chris Christie or some other political hit man being appointed to the position of Attorney General of the United States. And since President Trump would have the pardon power, no doubt Christie’s Bridge Gate problems would also be quickly solved.

The President of the United States has awesome powers. If used without restraint in order to silence critics or to get even with political opponents, the U.S. government can quickly be turned into something more closely resembling the pseudo-democracies of Russia, Turkey or countless other “republics” in name only, which outwardly profess adherence to democratic principles and the electoral process, but in practice are nothing more than autocratic regimes. These regimes rule through raw power and fear, who perpetuate themselves through the brutal suppression of free speech and a free press.

Although we take the Freedom of the Press for granted, this country has gone through some extremely troubling periods when there were severe restrictions placed on the right of free expression and freedom of the press.  It is entirely within the realm of possibility that such rights can be suppressed once again under the administration of a Trump or someone like him. It should be remembered that in 1798, only a few years after the passage of the Bill of Rights and adoption of the Constitution in 1791, the governing Federalist Party attempted to suppress criticism by means of the Alien and Sedition Acts, which made criticism of Congress and of the President a crime. Fortunately, Thomas Jefferson was elected President in the election of 1900, in part due to his opposition to the Sedition Acts, and he pardoned most of those who had been convicted under them.

During the Civil War, four New York newspapers were prosecuted in mid-1961 for “frequently encouraging the rebels by expressions of sympathy and agreement.” These actions all followed various “executive orders” issued by President Lincoln, including his eighth order on August 7, 1861, which made it both illegal and punishable by death to hold “correspondence with” or give “intelligence to the enemy, either directly or indirectly.” This was understood as an explicit direction for actions taken by various state and federal governmental officials to harass or prosecute newspapers and reporters who published any articles deemed to be sympathetic to the Southern cause.

During World War I, the Espionage Act of 1917 and the Sedition Act of 1918 imposed restrictions on the press, with offenders subject to fines of $10,000 and up to 20 years imprisonment for the publication of “disloyal, profane, scurrilous, or abusive language about the form of government of the United States or the Constitution of the United States, or the military or naval forces of the United States ….”

Similarly, a Minnesota law that targeted publishers of “malicious” or “scandalous” information was not invalidated by the U.S. Supreme Court until 1931, when the decision in Near v. Minnesota struck down this state law as an infringement on the First Amendment’s freedom of the press. In 1938, in Lovell v. City of Griffin, the U.S. Supreme Court extended the reach of the First Amendment’s freedom of the press beyond just newspapers and periodicals, holding that freedom of the press was a fundamental persona right extending to “every sort of publication which affords a vehicle of information and opinion. This, of course, now extends to the internet.

In January 2014, the Ninth Circuit Court of Appeals held, in Obsidian Finance Group LLC v Cox, that the protections of the First Amendment’s free speech and free press clauses extend to bloggers on internet, and that they cannot be liable for defamation unless the blogger acted negligently. The Ninth Circuit explained that journalists and bloggers are essentially equal under the First Amendment since those protections do not depend on “whether the defendant was a trained journalist, formally affiliated with traditional news entities, engaged in conflict-of-interest disclosure, went beyond just assembling others’ writings, or tried to get both sides of a story.”

One way that Donald Trump has said that he would consider restricting the freedom of the press is by loosening up the defamation and libel laws, which subject newspapers and other media outlets to possible lawsuits for the publication of information that is alleged to be false and defamatory. As the law now stands, however, there are severe legal restrictions on a person’s ability to successfully pursue a lawsuit for an allegedly defamatory article if that person may be considered to be a “public figure.” The reason for this is that in New York Times Co. v. Sullivan, a 1964 case, the Supreme Court sharply restricted such libel cases by holding that when a publication involves a public figure, a plaintiff in a libel suit bears the burden of proving that the publisher acted with “actual malice,” meaning that the publisher had to know of the inaccuracy of the information or statement being published, or acted with “reckless disregard” as to the truth of the statement. In another watershed case, in 1971 the Supreme Court, in New York Times Co. v. United States, upheld the publication of the previously secret Pentagon Papers, which contained some highly critical information regarding America’s involvement in the Vietnam War. I recall this case very clearly since I was a law school intern in the U.S. Attorney’s Office in Manhattan at the time that the case was argued in federal court.

If Donald Trump has his way, these and other restrictions on the ability of a public figure such as himself to sue the press for its negative reporting of him would be swept aside, and the country would embark on a new era of press restrictions and even criminal prosecutions of newspapers and investigative reporters, no doubt including the teams of reporters now delving into the illegal activities of the Trump Foundation.