President Donald Trump ordered his chief of staff to grant Jared Kushner — Trump’s son-in-law and senior adviser — a top-secret security clearance, the New York Times reported on Thursday.
In doing this, Trump was effectively quashing concerns raised by the White House’s top lawyer and intelligence officials that Kushner should perhaps not be granted the clearance, the report says.
Security clearances allow government officials and contractors to access classified information necessary in their line of work. In order to obtain one, the government must first determine that the person is loyal, trustworthy and honest, and that they have “freedom from conflicting allegiances and potential for coercion,” according to the Department of State’s protocol.
In January, Trump told the Times that he did not participate in the decision to grant Kushner a clearance. Asked on Thursday about the new report, obtained through conversations with multiple anonymous sources, White House press secretary Sarah Huckabee Sanders told the Times they “don’t comment on security clearances.”
Here’s how they work.
Who is granted security clearances?
Security clearances are not all that uncommon. More than 4 million people had security clearances as of October 2017, according to a report done by the Office of the Director of National Intelligence. About 1.3 million people held a top secret clearance at that time, and 2.7 million more were eligible for confidential or secret access. People who work for intelligence communities, such as the CIA or NSA; federal law enforcement groups, such as the FBI or DEA; or diplomatic groups, like the State Department, are often required to be vetted for them.
How do you get a security clearance?
In most cases, employees that need security clearances to do their jobs must first fill out a security questionnaire, which is usually a Standard Form 86. Then the employee will often undergo a background investigation, which includes fingerprints and face-to-face interviews with investigators from the agency they work under. After extreme vetting, which includes contacting law enforcement officials stationed around where the applicant has lived, worked and gone to school, trained security clearance adjudicators review all of the available information before coming to a final decision. Falsifying information on the questionnaire is a felony that can result in up to five years in prison.
Not all White House employees are vetted for security clearances. Some do not need them. For those that do, the White House personnel security office will generally decide whether to grant security clearances after the FBI conducts a background check. If there are concerns about the clearance, the White House counsel will weigh in. Presidents do not usually participate in the final decision to grant clearances, though it is not against the law for them to do so.
Laura Terrell, an attorney who served as Clearance Counsel in the White House Counsel’s office during the George W. Bush Administration previously told TIME that during the Bush Administration, decisions to grant clearances were often deputized to top aides, like the chief of staff, White House counsel or national security adviser. But ultimately, “it is the President who makes the call whether someone should be granted clearance,” she said.
Why would Trump have weighed in on Kushner’s security clearance?
Special Counsel Robert Mueller’s team has reportedly asked witnesses about Kushner’s involvement in securing financing for Trump real estate properties during Trump’s transition into the White House. Last year, NBC reported that federal investigators were inquiring whether Kushner’s conversations with foreigners could have in any way shaped U.S. foreign policy. If his relations with foreigners had then shaped official policy, that would almost certainly qualify as a violation of general security clearance protocol, which states that those who have them should be free “from conflicting allegiances and potential for coercion.”
According to experts interviewed by TIME, if there were concerns about Kushner’s clearance, they would likely stem from his relations to foreign governments.
“While it is unclear what the specific issue was with Mr. Kushner’s security clearance when it was granted, typically close business and personal ties to foreigners are an issue because of the potential for inappropriate influence leading to the disclosure of classified information,” said Jamil N. Jaffer, founder and executive director of the National Security Institute at George Mason University’s Scalia Law School. “In this case, some have claimed that the inappropriate influence could go in other direction, where Mr. Kushner’s business interests could benefit from access to such information; this is more of an ethics or legal issue, because it goes to how any government official deals with existing business interests — in that sense, the concerns raised might be analogized to concerns about insider trading, where individuals use non-public information to benefit their own economic interests — such issues are typically dealt with by putting financial assets in a blind trust,” said Jaffer, who also previously served in the White House Counsel’s office and the Justice Department under President George W. Bush.
Mark Zaid, a lawyer who represents individuals in security clearance matters, says that Trump has the authority to grant clearances “regardless of what we think about it, regardless of whether it endangers national security. But that doesn’t mean it doesn’t raise concerns,” he says. “There are without a doubt significant red flags.”
Trump’s close familial relation to Jared likely played a role in his ability to get a security clearance, given his previous interactions with foreign entities. In addition to handling real estate finances during the Trump transition, Kushner has also reportedly taken out loans from foreign banks in the past. This would bar most anyone from easily obtaining a security clearance, Zaid says.
“I certainly would say that who you know obviously makes a difference in Washington, D.C. It is far more likely that a non-connected individual will have greater problems on lesser matters than someone with high level connections,” Zaid says. “And there are, without a doubt, serious, legitimate concerns with respect to Jared Kushner because of his foreign financial dealings and foreign connections that for most people would be very difficult to overcome,” said Zaid, referencing clients who merely have family members working for foreign governments that preclude them from obtaining security clearances, despite having no contact with them.
Alana Abramson contributed to this report from Washington