WASHINGTON — After days of reports that President-elect Donald Trump had requested a top-secret security clearance for his son-in-law, Jared Kushner, people close to Kushner said that was not the case. No such request has been made, they said Wednesday, and he will not sit in on the president’s highly classified daily intelligence briefing.
But should Trump change his mind, former government officials and experts on classified information said he would have wide latitude as president to bring a family member into the most secret circles of the government.
“The president can authorize clearance for anyone he wants,” said Steven Aftergood, director of the project on government secrecy at the Federation of American Scientists. “It’s part of his commander-in-chief role. He has broad, essentially unlimited, access in this area.”
Like anyone else, Kushner would be subject to an FBI background check. But the president’s authority is so broad, Aftergood said, that he could override red flags — like fraud, huge personal debt, or ties to foreign governments — that would disqualify other applicants.
Trump said in a Twitter post Wednesday that he was not seeking security clearances for his children, who he has said will run his businesses while he is in the White House. But he did not address the case of Kushner, who is married to Trump’s elder daughter, Ivanka.
An anti-nepotism law passed by Congress after President John F. Kennedy appointed his brother Robert as attorney general in 1961 would make it difficult, if not impossible, for Kushner to take a senior position in the Trump administration, according to legal experts. But they said there was no prohibition on Kushner’s serving as an unpaid adviser to the president.
If Trump wanted to make the arrangement more formal, he could name Kushner to the President’s Intelligence Advisory Board, a 16-member committee that advises the president on intelligence matters and investigates the legality of intelligence operations. Members of the board, which dates back to Dwight D. Eisenhower in 1956, include former diplomats, military officers, and other government officials.
Among its current members are Michèle A. Flournoy, a former undersecretary of defense who was considered the front-runner to serve as defense secretary if Hillary Clinton had won the election; Wendy R. Sherman, a former undersecretary of state who helped negotiate the Iran nuclear deal; and General John Abizaid, a top commander during the Iraq war.
“I know of no limitations on the president’s ability to consult private citizens about sensitive national security issues,” said Gregory B. Craig, a former White House counsel to President Obama. With the advisory board, he said, “it happens in a more structured and formal sense.”
Craig noted that private citizens are routinely given clearances to handle national-security assignments, like the Manhattan Project, or legal cases that involve classified material, as with David E. Kendall, the lawyer who represented General David H. Petraeus when he was charged with turning over his confidential diary to his biographer and mistress.
If Trump were to take any of these steps, however, he would be breaking with decades of practice. Normally, a security clearance is granted because a person’s job requires access to classified information, or because of a specific assignment that involves secrets. Members of a president’s family do not receive clearances, even though the president may discuss sensitive topics in their presence.
“There is no justification for top-secret security clearances for members of the president’s family,” said Richard W. Painter, the chief White House ethics lawyer from 2005 to 2007, who now teaches at the University of Minnesota Law School. “I don’t remember Laura Bush or Hillary Clinton having a top-secret clearance.”
Kellyanne Conway, a senior Trump adviser, brushed aside questions from reporters Wednesday about whether it was a conflict of interest for Trump’s children to play a role in his transition when they were running his businesses.
“You’re presuming that they’re doing certain things that they should not be doing,” she said. “I mean, they’re his children, and they’ve been his business colleagues for a very long time. They obviously support their father as president.”
Kushner already occupies a singular position in his father-in-law’s orbit. He was at Trump’s side during much of his campaign and has taken a strong behind-the-scenes role in the transition. He was behind the recent shake-ups that removed Governor Chris Christie of New Jersey, former representative Mike Rogers, and others from the transition team.
If he took part in the daily briefing, Kushner would join one of the most rarefied circles in Washington. During Obama’s presidency, the only people regularly in the room, besides Obama, have been the vice president, the chief of staff, the national security adviser, the national security adviser’s deputy, the vice president’s national security adviser, and the counterterrorism adviser. All hold the highest-level clearance, issued by the director of national intelligence: Top Secret/Sensitive Compartmented Information.
Obama’s closest political advisers, Valerie Jarrett and David Axelrod, were never in the room. And unlike many supposedly secret meetings in Washington, the contents of this briefing never leaked, according to former officials in the Obama administration.