WASHINGTON (WASHINGTON POST) - A top Justice Department official alerted the White House two weeks ago that significant information requiring additional investigation would further delay the security clearance process of senior adviser Jared Kushner, according to three people familiar with the discussion.
The Feb 9 phone call from Deputy Attorney General Rod Rosenstein to White House Counsel Donald McGahn came amid growing public scrutiny of a number of administration officials without final security clearances. Most prominent among them is Kushner, President Donald Trump's son-in-law, who has had access to some of the nation's most sensitive material for the last year while waiting for his background investigation to be completed.
A week after the call from Rosenstein, White House Chief of Staff John Kelly announced that staffers whose clearances have not been finalised will no longer be able to view top-secret information - meaning that Kushner could stand to lose his status as early as Friday.
As president, Trump can grant Kushner a high-level security clearance, even if his background investigation continues to drag on. But Trump said Friday that he would leave that decision to Kelly.
In his phone conversation with McGahn, Rosenstein intended to give an update on the status of Kushner's background investigation. He did not specify the source of the information that officials were examining, the three people said.
Justice Department officials said Rosenstein did not provide any details to the White House about the matters that need to be investigated relating to Kushner. "The Deputy Attorney General has not referenced to the White House any specific concerns relating to this individual's security clearance process," spokesman Sarah Isgur Flores said in a statement.
A White House spokesman declined to comment on the status of Kushner's clearance or on information relayed by Rosenstein to McGahn.
Kushner's lawyer, Abbe Lowell, declined to comment.
In a statement to The Washington Post last week, Lowell said he had been assured by officials that there was nothing unusual about the delay in Kushner's security clearance. "My inquiries to those involved again have confirmed that there are a dozen or more people at Mr Kushner's level whose process is delayed, that it is not uncommon for this process to take this long in a new administration, that the current backlogs are being addressed, and no concerns were raised about Mr Kushner's application," Lowell said in a statement on Feb 16.
Kushner's interim clearance allows him to view both top-secret and sensitive compartmented information - classified intelligence related to sensitive sources. With that designation, he has been able to attend classified briefings, get access to the president's daily intelligence report and issue requests for information to the intelligence community.
Security clearance experts said it is rare to have such a high level of interim clearance for such a long period of time. Typically, senior officials do not get interim access to top-secret and sensitive compartmented material for more than three months, experts said.
The day before Rosenstein's call to McGahn, The Post reported that Kushner was among dozens of White House personnel who were relying on interim clearances while their FBI background investigations were pending.
White House officials have complained that they have had trouble getting information from the Justice Department and FBI about the status of delayed clearances, including Kushner's. People familiar with the Feb 9 call said Rosenstein was returning a White House phone call seeking guidance on the status of his background investigation, among those of others.
Rosenstein intended to speak to Kelly, but the chief of staff was not immediately available, so he ended up talking to McGahn instead, according to three people familiar with the call.
In the call, Rosenstein did not say whether the information that had come to the attention of the Justice Department was learned by the FBI in its standard background clearance investigation of White House staff. Rosenstein also oversees the investigation by special counsel Robert Mueller, who has scrutinised Kushner's contacts with foreign officials and business dealings as he examines Russia's interference in the 2016 election.
There are conflicting accounts about whether Rosenstein discussed with McGahn the significance of the information and its possible impact on Kushner's clearance. Two people said the deputy attorney general told McGahn the Justice Department had obtained important new information, suggesting it could be an obstacle to his clearance process. Two others said Rosenstein did not discuss the nature of the ongoing investigation.
Bob Bauer, who served as White House counsel in the Obama administration, said administration officials should view Rosenstein's alert as a strong reason to revoke Kushner's interim top-secret access."It seems to me that he should have restricted access to highly classified material until the resolution of those issues," Bauer said.
Kushner's inability to obtain a final clearance has frustrated and vexed the White House for months. As someone who meets regularly with foreign officials and reads classified intelligence, he would typically have a fast-tracked background investigation, security clearance experts said.
During the last six months, McGahn privately discussed the slow pace of Kushner's background investigation with other senior aides, including with Kelly in the fall, according to a top administration official. Kelly expressed frustration with Kushner's access to classified material on an extended interim clearance, according to the official. But McGahn and Kelly decided to wait for the FBI to complete its background investigation and took no action at the time to change his access.
Their wait-and-see mode ended abruptly last week, when Kelly issued a new policy that would block staff with interim clearances from receiving top-secret information as of Friday.
The changes were prompted by intense scrutiny that has followed domestic-abuse allegations against Rob Porter, the president's former staff secretary, who was also working under an interim top-secret clearance.
The move puts a "bull's eye" on Kushner, a senior official told The Post last week.
Kelly has told associates that he is uncomfortable with Kushner's uncertain security clearance status and his unique role as both a family member and staffer, according to people familiar with the conversations. He has said he would not be upset if the president's son-in-law and his wife, Ivanka Trump, left their positions as full-time employees.
On Friday, Trump said he would defer the question of Kushner's access to his chief of staff. "I will let Gen Kelly make that decision, and he's going to do what's right for the country," the president said during a news conference. "And I have no doubt that he will make the right decision."
In a statement about Kushner issued earlier this week, Kelly said he had "full confidence in his ability to continue performing his duties in his foreign policy portfolio including overseeing our Israeli-Palestinian peace effort and serving as an integral part of our relationship with Mexico."
Inside the White House, officials have discussed concerns that the delay in Kushner's clearance is due in part to repeated updates he made to a form detailing his contacts with foreign officials.
He filed three amendments last year to the questionnaire, after failing to fully disclose contacts reaching back several years. Kushner has said the omissions were inadvertent errors.
Investigators scrutinise those activities to determine whether a person could be subject to influence or blackmail by a foreign government and can be trusted to guard classified information.
Ordinarily, security clearance experts said, the failure to completely disclose all contacts would jeopardize an applicant's chances of obtaining final clearance.
In addition, Kushner's actions during the transition have been referenced in the guilty plea of former Trump national security adviser Michael Flynn, who admitted he lied to the FBI about contacts with then-Russian Ambassador Sergey Kislyak. Prosecutors said Flynn was acting in consultation with a senior Trump transition official, whom people familiar with the matter have identified as Kushner.