On 27 May 2017, Politico ran an article focusing on Jared Kushner’s alleged attempts to establish back-channel communications with Russia. The opening sentence of the article states that the attempts “would have been viewed as not only highly improper but also possibly even illegal, according to former national security officials.” A related tweet had the following caption: “Kushner’s alleged Russia backchannel attempt would be serious break from protocol and could possibly be illegal”.
In general, the article presents a quick, reasonable overview of how and when the U.S. Government has used back channels for discreet communications with other governments or individuals. In the first quote, H.R. McMaster, the national security adviser, explains that it is normal to have back-channel communications with other countries, thereby allowing for more discreet communications. The article then offers comments from named individuals explaining why they think it would be problematic for a President-elect or his deputies to establish those back-channel communications before the President-elect’s inauguration.
The problem with the article is that it mentions several times that the attempts could be illegal without explaining the criteria for determining that illegality or discussing who would have the authority to make that determination. Instead, the notion that Mr. Kushner might have broken the law is presented vaguely to readers, first in the opening paragraph, second in a quote attributed to a former National Security Council spokesman, and third in a reference to the Logan Act. Once Politico introduced the possibility of a criminal act, it should have provided additional details about what would make it a criminal act. Was it the attempt itself, not disclosing the attempt, the nature of the communications, or something else?