What is a “Person of Interest?”

The Washington Post and the New York Times reported last week that Donald Trump’s son-in-law, Jared Kushner, is a “person of interest” to the FBI in its investigation of “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump,” along with “any matters that arose or may arise directly from the investigation.” This includes false statements to investigators (18 USC 1001), obstruction of justice (18 USC 1503) and conspiracy to obstruct justice (18 USC 371).

Kushner is not a “person of interest” because it is a state law enforcement term that the FBI declines to use. The FBI says he is “under scrutiny,” which means he is a person of interest to the investigation, but not a “person of interest.” Confused? As a former criminal defense lawyer with 30 years experience defending people charged with felonies in state and federal courts, I can set you straight.

State law enforcement officials created the term to evade the Miranda rule and federal law enforcement officials declined to play that game.

A confession is powerful evidence of guilt, but only if it is voluntary. Coerced confessions are presumptively unreliable and inadmissible. The line between a voluntary and a coerced confession is indistinct and difficult to define.

To eliminate a well-documented state police practice of obtaining confessions from suspects during seemingly endless confrontational custodial interrogations, the SCOTUS created a new rule in Miranda v. Arizona, 384 US 436 (1966), that required police to warn suspects under arrest that they had a right to remain silent (Fifth Amendment) and a right to consult with counsel before answering any questions (Sixth Amendment). The rule further required police to obtain a voluntary acknowledgment and waiver of those constitutional rights from the suspect before commencing an interrogation. A statement obtained in violation of the rule is not admissible in court.

Many state law enforcement officials were furious about the Miranda rule and determined to come up with a work-around. They eventually decided to instruct police to avoid a situation that might be characterized as a “custodial interrogation” by doing the following:

  1. Refer to the suspect in official reports as a “person of interest” instead of as a suspect;
  2. Instead of placing the suspect under arrest, give him a cigarette and a cup of coffee while engaging him in a conversation that gradually turns into an interrogation, if he doesn’t confess;
  3. When cross-examined by defense counsel, insist that the POI was always free to go, until he confessed.

Jared Kushner is represented by Jamie Gorelick, a former Deputy Attorney General of the United States from 1994-97, during the Clinton administration. She has offered to make Kushner available to be interviewed, accompanied by counsel, of course. The interview will not be a custodial interrogation, so Miranda will not be implicated.

Federal prosecutors and the FBI use the following three categories to describe people they investigate:

  1. Target: a person (or persons) who is suspected of being a major participant in the crime as a boss, organizer or director of others;
  2. Subject: a person who is suspected of participating in the crime, but not as a director or major participant and is regarded as someone to potentially flip into cooperating with law enforcement to make the case against the target and testify against him before the grand jury and at the trial;
  3. Witness: a person who has information about the crime, but is not suspected of committing the crime (also called a fact witness).

Michael Flynn and Paul Manafort have been have been described as “subjects” of the investigation.

“Under scrutiny,” means that FBI investigators believe Kushner’s relationship to Trump (confidant and son-in-law) and his position as a Senior White House Advisor and gatekeeper to Trump (the “Trump Whisperer”) means that he has significant information relevant to their inquiry. The FBI has been following the money. The interview(s) will be wide ranging and include questions about documents. They will ask questions, despite knowing the answers, to determine if Kushner is telling the truth. If the investigators catch him in a lie, it’s a False Statement violation, a felony punishable by up to 5 years in prison pursuant to 18 USC 1001. A lie might also constitute obstruction of justice in violation of 18 USC 1503. If the FBI can prove that he acted with others to obstruct justice, he could be charged with conspiracy to obstruct justice in violation of 18 USC 371. Depending on the evidence the FBI uncovers, he might end up as a witness against the presumptive target of the investigation, the 45th president of the United States.

Finally, Trump’s new idea to set up a “War Room” at the White House, staffed by Kushner, Bannon and Corey Lewandowski, to fight back against leaks and the investigation sounds like a conspiracy to obstruct justice. Terrible idea from a universe far beyond stupid.

5 Responses to What is a “Person of Interest?”

  1. Trained Observer says:

    Personally speaking, my interest is in seeing little Jared get the kick in the teeth he deserves, a felony conviction and time in the slammer. Donny Two Scoop may slither away with a pardon from Pence (assuming he doesn’t get impeached and convicted himself) , but the rest of the Trumpers need to get some jail time for treason, obstruction of justice and whatever else.

    • Kushner’s apologists, including McMaster & Kelly, are claiming that opening up back channels of communication with adversaries is always a good idea. Generally speaking, I agree. Not this time, however, because Kushner asked Kislyak to use Russian communication channels. He wanted to conceal what he was doing from US Intel & the Obama administration while Obama was still president. This has never happened before in US history.

      Michael Flynn was with Kushner when he asked the Russian ambassador to set up the secret line of communication. The meeting took place on 12/1 or 12/2 at Trump Tower. Although Obama did not impose sanctions against Russia for meddling in our election until 12/29, there were other sanctions in effect that Obama imposed in 2014 in response to Russia’s takeover of the Crimea and interference in the internal affairs of the Ukraine. Those sanctions forced Russia & Exxon-Mobil to stop their $500B joint project to drill in the Arctic. The 2014 sanctions also tied up Vnesheconombank (VEB), a Russian bank that Vladimir Putin used for “special projects.”

      Enter Sergey Gorkov . Quartz Media reports,

      In December Kushner met with Russian ambassador Sergei Kislyak alongside fired former national security adviser Mike Flynn, and soon sent a deputy to see Kislyak again. Then, at Kislyak’s request, Kushner met Sergey Gorkov, the head of Vnesheconombank (VEB)—a meeting that wasn’t previously reported, according to the Times. The Senate’s intelligence committee wants to ask Kushner about those meetings.

      VEB is a state financial firm long entrusted with carrying out Russian president Vladimir Putin’s “special projects,” and has been weighed down by US and European sanctions since 2014. It also has significant ties to Russia’s security services. Gorkov studied at the training school for the FSB, the Russian spy agency, while his predecessor, Vladimir Dmitriev, worked in a Soviet foreign embassy at a time when the distinction between diplomats and spies was often blurred. In 2016, a New York court sentenced VEB official Evgeny Buryakov to 30 months in jail after he pled guilty to spying for the Russian government under the guise of working for the bank.

      VEB was in deep financial trouble last year due to the sanctions. Putin appointed Gorkov last year to manage the bank and sale of many of its assets.

      Does anyone think Kushner and Flynn were carrying on legitimate US business when they met with Kislyak in early December and Kushner met with Gorkov in late December, or were they carrying on personal business?

  2. Can’t make this stuff up! The hubris and stupidity are unbelievable.

    Don’t worry, MichelleO – the lawbreaking, corruption, and stupidity just keeps coming. There will be consequences aplenty, but it’ll take time.

  3. And now the WaPo is reporting that Kushner met with Russian Ambassador Kislyak at Trump Tower on December 1 or 2 and asked him if he could set up a secure back channel communication line to Russian officials in the Kremlin using Russian communication equipment. He did not disclose this communication on his application for a security clearance, which is a felony.

  4. MichelleO says:

    I don’t believe anything will happen to any of them. There is a reason that a monkey was able to get into the White House. Are they conspiring to have another 9/11 or even kick off World War III? Will our civil liberties be greatly eroded under this puppet POTUS?

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