Op-Ed

Why did Don Jr.'s emails surface? Because Robert Mueller is already changing Washington's lying ways

For more than a year, the most senior officials in the Trump administration have adamantly, even scornfully, denied that there was any contact between the Trump campaign and the Russian government. The bombshell report earlier this week of Donald Trump Jr.’s efforts to secure dirt on Hillary Clinton from Russian officials — and his June 9, 2016, meeting with the supposed purveyor of that dirt as well as then-Trump campaign manager Paul Manafort and his father’s aide Jared Kushner — has put the lie to those denials.

Why has the truth emerged now? A careful parsing of the events of the last few days points to the importance of the federal criminal investigation overseen by a stalwart special counsel, Robert S. Mueller III. His behind-the-scenes work already has changed the rules of the game for the White House and contributed to a more accurate public accounting.

The New York Times, which broke the story, reports that it was Kushner’s legal team that recently discovered the now-infamous email chain in which Trump Jr. was told that a senior Russian government official had documents that “would incriminate Hillary and her dealings with Russia and would be very useful to your father,” to which Trump Jr. quickly replied, “If it’s what you say I love it.”

And here is where Mueller’s investigation has rewritten the rule book for senior White House officials. To receive a security clearance, Kushner had to complete a form — the SF-86 — detailing, under penalty of perjury, every contact he had with foreign government officials in the last seven years. (I dealt with SF-86s as a deputy assistant attorney general at the Department of Justice.)

Prosecutions for lying on an SF-86 are rare, but they happen, and Kushner already has one strike against him: He first signed and submitted his SF-86 without listing more than 100 applicable contacts with foreign leaders or officials. His lawyer said the questionnaire was submitted prematurely; it took two tries to fully supplement it. The Trump Jr. emails reportedly surfaced when Kushner was going through his records as part of that process.

In a pre-Mueller world, Kushner might have approached the matter casually and, if anyone asked, pleaded ignorance and a busy schedule. That approach, however, is no longer feasible. In the midst of a wide-ranging criminal investigation, with multiple targets, the threat of a perjury prosecution is the sort of offense zealous and sophisticated federal prosecutors — and there is no doubt that Mueller’s team fits that description — could bring to bear.

All of this would lead a good Washington counsel — and Kushner’s lawyers, Jamie Gorelick initially, and then suddenly on Friday, criminal defense specialist Abbe Lowell, are among the best — to conclude that Kushner needed to “get ahead of the story” and turn over the emails (a development the Times learned from people “familiar with” Kushner’s application, who requested anonymity because the questionnaire is not a public document).

Absent the special counsel investigation and the potential legal jeopardy for Kushner, the email chain very possibly would never have seen the light of day. Indeed, President Trump and Trump Jr. at first decided to provide a dishonest account of the June 2016 meeting, omitting the offer of dirt on the Clinton campaign. It was only after further reporting in the New York Times and finally its plan to publish the actual emails that Trump Jr. fessed up.

The threats represented by the Mueller investigation are having additional consequences within the White House, familiar to veterans of previous scandals. Multiple accounts suggest that the Trump Jr. emails have given rise to a circular firing squad in the West Wing that we are told features widespread suspicions of Kushner. These kinds of effects will only get worse as Mueller’s work advances.

Perhaps no quality has more stunned and frustrated the president’s critics than his brazen willingness to lie. Trump frequently appears to have no independent regard for truth, to see veracity in purely expedient terms: What he can get away with in public debate. More dumbfounding, he and others in the White House do seem to get away with it, ridiculing plainly objective accounts as “fake news.”

But the prospect of genuine legal jeopardy upends the calculation, certainly for Trump’s subordinates, who have future careers to lose, families to raise and, unlike the president, no general insulation from criminal prosecution. It is probable that some powerful people will be going to jail as a result of the Mueller investigation. Among the likeliest candidates are those who don’t realize that the game has changed, and that in the ambit of the special counsel investigation, and the courts of law, a lie is a lie.

Harry Litman is a former U.S. attorney, appointed by President Bill Clinton, and deputy assistant attorney general. He teaches at UCLA School of Law and practices law at Constantine Cannon.

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UPDATES:

3:06 p.m.: This op ed was updated with changes in Jared Kushner’s defense team and the number of foreign contacts he added to his SF-86 form.

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