Graphic credit Jason Torchinsky

In the world of U.S. diplomacy, back channels of communication between governments exist for various reasons. But they are more regulated than you may think. Though, it appears that President Trump’s son-in-law ’s meeting with the Russian ambassador at Trump Tower was anything but regulated. And his actions weren’t just suspicious to the average person. Experts who held diplomatic positions with top-secret clearance said all of this looks very bad for Jared Kushner.

Secret back channels have been used by past administrations, and have their purposes. But, on the backdrop of America’s intelligence communities confirming that Russia interfered in the U.S. election to benefit Trump, and Flynn being less than forthcoming about his contacts with Russian officials, the secret back channel Kushner sought is highly suspicious. And here’s the kicker, as of this week: Congress reportedly wants to ask if Kushner sought a Russian bailout for his $1.8 billion Manhattan building because his companies are reportedly bleeding cash.

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Some members of Congress have even said he may have committed an indictable offense. “Having omitted really significant pieces of information, which I’m not a prosecutor but, a quick reading of the law suggests that … a security clearance could be denied just on this alone and might even be [an] indictable offense,” Rep. Don Beyer (D-Va.) told The Hill.

Kushner even allegedly went as far as asking, with soon-to-be NSA advisor then quickly fired NSA advisor Michael Flynn at his side, ambassador Sergey Kislyak to use Moscow embassy facilities to communicate with people in Russia.

Without question, Flynn and Kushner look dirty as hell, and as USA Today reports, the type of back channel sought here is incredibly different from ones used by the U.S. government previously.

For one thing, Kushner held no formal position in the government at the time he first approached Russian officials at Trump Tower last December, before Trump was sworn in. And the discussions were apparently set up to operate without the knowledge of the U.S. government.

The existence of a secret back channel could raise a number of legal issues. The Logan Act, for example, prohibits citizens from conducting unauthorized diplomacy. There’s also the Espionage Act, which prohibits the disclosure of classified information, and the Foreign Agent Registration Act, which prohibits anyone from acting as a secret agent of a foreign power.

Neither Kushner nor Flynn has responded directly to these claims, and neither has been charged with any crime. But former FBI director James Comey’s testimony Thursday will help address a lot of these questions. Then again, he could be very tight-lipped and not say anything. In the best of scenarios, Comey may disclose that Trump asked him to end his investigation into Flynn, making the secret back channel story an even more central focus of interest.

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Before we get into how compromised Flynn and Kushner could potentially be, let’s discuss the difference between a back channel and secure lines of communications and how it relates to diplomacy and national security.

Secure Lines Of Communication Are Highly Coordinated

Let’s assume Kushner and Flynn had good intentions and really wanted to meet with the Kislyak to establish friendly relations with Moscow. Kushner didn’t want to be bailed out with Russian rubles and Flynn wasn’t acting in the role of a Russian operative. Everything is above board.

The State Department has very sophisticated protocols in place to ensure that any incoming administration has the necessary resources to use secure lines of communication, Cecile Shea, a former U.S. State Department official and nonresident senior fellow on security and diplomacy at the Chicago Council on Global Affairs, told me.

The State Department could have helped him secure a classified arrangement. Say Kushner had a message for Putin. He would meet for coffee with the Russian ambassador or another diplomat. That diplomat would return to the embassy and type a confidential message to Moscow. All the while, someone would know about it all—the White House, State Department officials, you name it. It is not a freelance, casual affair that someone can do in the shadows.

Certainly, you wouldn’t ask to use Russia’s facilities. In the U.S., anything that is top-secret and used by a foreigner is compromised.

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“If you have a top-secret telephone and someone is using it and doesn’t have a top-secret clearance and anybody takes their eyes off him for even 10 seconds, you have to throw that phone away,” Shea said. “This equipment is that sensitive and well-cared for on the U.S. side and I am quite sure on the Russian side as well.”

Additionally, the State Department and the White House have several telephone systems set up for the president and senior officials to communicate securely with foreign governments. The president, for example, can call the State Department and ask for a briefing paper to prepare for a ten-minute call with a foreign leader. He or she can even ask for an interpreter.

There are people at the State Department whose specific job is to set up secure communications like that—very quickly. The White House also has professional switchboard operations and the White House Communications Agency that handles Oval Office-related communications.

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Simply put: if Kushner and Flynn were on the up and up, they had every resource available to them to communicate with Russia. But, apparently, they preferred not to take advantage of any of it. Plus, there’s the not small matter of the fact that Kushner wasn’t a member of the government at the time of these supposed discussions.

Back Channels Are OK, Secret Back Channels Are Not Unless You’re Up To No Good

Sometimes, information is so sensitive that limiting the number of people who know about it is necessary to protect a particular person or interest, making a back channel vital. The White House, for example, may be negotiating a high-profile human rights situation or want to secure the release of a hostage.

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Instead of writing a classified memo that could be read by hundreds of people, the White House may opt to communicate directly with a select few officials in the country where the hostage is located. Doing this can avoid leaks to the press, or sensitive information getting back to the wrong person in the country holding the hostage, making the situation worse. It is technically an unofficial line of communication and protocols that would potentially jeopardize the operation.

Other examples, according to the Los Angeles Times, include the negotiations during the Cuban missile crisis, President Nixon talking to the Soviets, and Obama’s own nuclear deal with Russia.

The main takeaway is that someone, or a lot of someones, knows what is going on—especially the FBI, which is what will make Comey’s testimony crucial in determining the intentions of Kushner and Flynn’s meeting with Kislyak.

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Richard Moss, an associate research professor at the U.S. Navy War College who has written extensively about back channels, told me the FBI is usually aware of any secret back channel a transition team or a presidential administration arranges to ensure no one is engaging in improper behavior. It would be unusual for the agency to be kept out of the loop.

Moss brought up the example of how Henry Kissinger set up a back channel with a KGB officer posing as a Novosti reporter named Boris Sedov during the 1968 presidential transition period. Richard Nixon surely authorized the back channels, which were likely kept secret from others on his transition team, and counterintelligence officials in the outgoing Lyndon B. Johnson administration.

“Kissinger was getting regular reports from the FBI about Boris Sedov,” Moss said. “So J. Edgar Hoover knew what was going on. He may not have known the details, but he clearly knew there were things going on and was in communication with Kissinger about it. So the optics of that look much better than Comey as director of the FBI being completely unaware of what was going on with Kushner and Flynn.

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For now, we aren’t aware of what Comey knew or didn’t know and the fact that Trump fired him as he was investigating Flynn makes Kushner’s secret back channel even more suspicious.

Malcolm Nance, a former counterintelligence officer and executive director of the Terror Asymmetrics Project on Strategy, Tactics and Radical Ideologies (TAPSTRI), was more blunt.

“That’s not a back channel,” he said of Kushner and Flynn’s meeting. “It’s behind the back.”

Did Kushner and Flynn Commit Espionage?

Nance certainly thinks so, at least in the case of Flynn.

Why would Kushner and Flynn want meet with senior-level officials without anyone knowing it? Even if you wanted to forgive Kushner for not knowing any better, Flynn certainly knew his actions were inappropriate, if the allegations are true. He was a top U.S. spy with no excuse.

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Former President Barack Obama fired Flynn in 2014, something that Nance believes made him disgruntled and a prime recruit for Russian intelligence services. This is what makes Kushner’s exact words and what Flynn may have said to him during their December meeting with the Russians critical.

In the case of Kushner, if he did ask for a secret back channel, Nance said the only way he could save himself during an intelligence interrogation is if he responds with one of two answers.

“‘The president-elect directed me to’ or ‘Michael Flynn thought it would be a good idea,’” Nance said. “And if Michael Flynn thought it was a good idea, then Michael Flynn is an agent of Russia. And I don’t mean registered agent doing business with Russia. I mean an espionage agent for Russia.”

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Comey’s testimony on Thursday could reveal a lot, especially if he is willing to spill the tea on his conversations with Trump in which the president allegedly told him to quash his investigation into Flynn. If Comey says Trump asked him to end the investigation, that will force more heat on Kushner’s secret back channel allegation.

We’ll have to wait and see, but one thing is for certain:

“There is no such thing as a secret back channel to a country like Russia without the right agencies in America knowing about it,” Shea said. “You just can’t do that. You’re just opening yourself up to being recruited as a spy by the Russians.”