Warning Signs: President Trump May Violate Federal Law in Absolving Saudi Crown Prince

On November 19, 1863, President Abraham Lincoln used a scant 272 words to transform the deaths of over 50,000 Union and Confederate soldiers at Gettysburg into an embodiment of higher national purpose. Those that perished in advancing the nation’s founding ideals, Lincoln wrote, died not in vain, but in order to bring about “a new birth of freedom,” rendering real what had only been promised in the Declaration of Independence – that “government of the people, by the people, for the people, shall not perish from the earth.”

One hundred and fifty-five years later, virtually to the day, President Donald Trump’s 633-word statement of November 20, 2018, “On Standing with Saudi Arabia,” may one day be regarded as the anti-Gettysburg Address. The purest distillation yet of the Trump Doctrine, Tuesday’s statement succinctly enumerates our current president’s worldview, and America’s place within it:

1. The world, and most of its inhabitants, pose an unrelenting threat to Americans, and we are right to be afraid;
2. America derives no benefit from, and has no claim to, a national calling or sense of higher purpose;
3. Authoritarian and repressive rulers are America’s natural partners, while democratically-elected foreign leaders and most of this country’s intelligence and law enforcement apparatus are, in their affinity for rule of law, inherently hostile and untrustworthy; and
4. Effective statecraft rests upon the pillars of short-term transactionalism, economic mercantilism, and raw coercion.

As the conservative editorial board of the Wall Street Journal wrote, “we are aware of no President, not even such ruthless pragmatists as Richard Nixon or Lyndon Johnson, who would have written a public statement like this without so much as a grace note about America’s abiding values and principles,” and that it was “startling to see a U.S. President brag in a statement about a bloodthirsty murder” that he scored commercial deals with the Saudis.

Yet beyond its stunningly candid articulation of a virtual license to kill and its departure from centuries of American proclamations of the nation’s ideals (even if not always realized in practice), Trump’s statement was also noteworthy in another regard – it signaled that the president may seek to violate federal law.

As one of us has written about previously, on October 10, a bipartisan group of 22 senators, including the chairman and ranking member of the Senate Foreign Relations Committee, Sen. Bob Corker (R-Tenn.) and Sen. Robert Menendez (D-N.J.), triggered a provision in the Global Magnitsky Human Rights Accountability Act of 2016 requiring that the president, within 120 days:

1. “determine if [a foreign] person has engaged in [extrajudicial killings, torture, or other gross violations of internationally recognized human rights],” in this case with respect to the murder of Saudi dissident and Virginia resident Jamal Khashoggi; and

2. “submit a classified or unclassified report to the chairperson and ranking member of the [Senate Foreign Relations Committee] with respect to that determination that includes (i) a statement of whether or not the President imposed or intends to impose sanctions with respect to the person; and (ii) if the President imposed or intends to impose sanctions, a description of those sanctions.”

Importantly, the senators’ October 10 letter pointedly stated that “Our expectation is that in making your determination you will consider any relevant information, including with respect to the highest ranking officials in the Government of Saudi Arabia,” a pool of leaders widely understood to include Saudi Arabian Crown Prince Mohammed bin Salman (MbS).

In light of this requirement, Trump’s written statement, when combined with the sanctions imposed on 17 Saudi nationals by the Treasury Department on November 15, can be viewed in two ways, neither of which seems to suggest that the president intends to comply with the law.

A relatively unlikely reading is that the White House will consider Trump’s statement itself, which Trump referred to as “my decision,” as the final determination concerning those found to be responsible for Khashoggi’s murder (presumably the 17 sanctioned individuals referenced by Trump in his statement) and those deemed not culpable (presumably other senior Saudi officials, most notably MbS).

With respect to the Saudi leader, Trump’s view that “it could very well be that the Crown Prince had knowledge of this tragic event – maybe he did and maybe he didn’t!” stands in sharp contrast to a leaked CIA assessment concluding with “high confidence” that the killing could not have taken place without MbS’ express authorization.  A State Department official who has seen the CIA’s assessment said it was “blindingly obvious” that the crown prince ordered Khashoggi’s death. “There’s overwhelming consensus that the leadership is involved — no one is debating it within the government,” the official added.

The divide between the view of the United States’ premier intelligence agency — an assessment reportedly informed by its analysis of Saudi governance structures and admissions of guilt, intercepted communications, and recordings of the murder — and that of Trump — who has declined to review such evidence and appears persuaded solely by the denials of the crown prince himself — raises the obvious question of whether Trump’s “determination” complies with the congressional statute.

At a bare minimum, Congress has required the President to engage in a determination, which must be made in good faith, concerning responsibility for the killing, and an arbitrary and capricious decision on the part of President Trump would violate that mandate. The President cannot simply ignore relevant information or make a predetermined decision without the existence of supporting facts.

Were the White House to claim that Trump’s statement is the determination required by the Global Magnitsky Act, a compelling case can be made that Trump is acting in knowing violation of federal law.

Recognizing this, the administration may be unlikely to claim that the November 20 statement constitutes the required final determination, thereby providing an opportunity for Trump’s position to “evolve.” In theory, Trump could reverse course and provide Congress with a written, and perhaps classified, determination of MbS’s responsibility for Khashoggi’s murder as part of the required report (even while stating that Trump has decided against sanctioning the crown prince). But such a reversal seems highly unlikely. Given that the president is still required to submit a formal report to Congress, a document that follows the logic of the November 20 statement would violate the federal statute.

There may be no ready way to enforce the law in court, and thus no judge will have the opportunity to review Trump’s “determination,” even under the most deferential standard. That does not, however, excuse a violation of the statute. Government lawyers and a bipartisan group of senators know what the law requires, and courts in other cases may well take account of the Executive Branch’s pattern of abiding by congressional mandates. The senators’ public statement announcing their bipartisan letter of October 10 highlighted that the letter was signed not only by most members of the Senate Foreign Relations Committee, but also by the chairman and ranking member of the Senate Appropriations Subcommittee on State, Foreign Operations, and Related Programs, Sen. Lindsey Graham (R-S.C.) and Sen. Patrick Leahy (D-Vt.). The administration may not want to risk toying with those who hold the purse strings.

Trump, therefore, in his eagerness to absolve Saudi’s reckless young potentate of blame, seems to have painted himself into something of a legal corner.

Within hours of Trump’s statement, Senators Corker and Menendez issued a second joint letter invoking the Global Magnitsky Act determination requirement. Unlike their letter of October 10, the senators’ second letter specifically demanded that a determination be made concerning MbS’ role in Khashoggi’s killing. While clearly intended to clarify the language of the October 10 letter and increase pressure on Trump, the second Corker-Menendez letter may also have the effect of providing Trump with the opportunity for a do-over, regardless of whether that was the senators’ intended purpose. Given the additional clarification provided by the second letter—a degree of specificity seemingly required by no one other than the president—Trump now conceivably has the opportunity to revise his earlier pseudo-determination with respect to MbS and stay on the right side of the law. Whether he will choose to do so very much remains to be seen.

Ironically, it may be President Barack Obama who ultimately provides Trump with a means to try to extricate himself from this sticky legal situation. As one of us wrote about previously, in signing the Global Magnitsky Act into law, Obama asserted that he reserved the right to adhere to or decline to act on the Act’s relevant provision “when appropriate” and “consistent with the constitutional separation of powers, which limit the Congress’s ability to dictate how the executive branch executes the law.” Obama referred specifically to the provision that requires a presidential determination upon the request of the Senate Foreign Relations Committee’s chair and ranking member.

Particularly given the bipartisan outrage over Khashoggi’s killing, however, an attempt by Trump to dodge the Global Magnitsky Act’s determination and reporting requirements by invoking Obama’s signing statement might create more problems for the administration than it solves. More likely, the administration will produce the required report while suggesting that it did so as a matter of policy, rather than keeping with a congressional requirement. Here too, however, Trump’s approach apparently remains to be determined.

In doing battle with blindingly obvious facts and a growing number of senators, even at the risk of violating the law, Trump may be inadvertently providing the basis for what will ultimately destroy his policy with respect to Saudi Arabia and, as a result, the wider Middle East. Momentum for legislative measures to limit U.S. support for the Saudis’ involvement in the war in Yemen is growing, and a bipartisan group of senators recently introduced legislation that would, among other things, remove Trump’s ability to shield MbS from sanctions. Trump apparently doesn’t adequately appreciate that this blowback is coming. Like his younger counterpart in Riyadh, the American president is both reckless and disdainful of legal constraint. By showing that the Trump Doctrine is untethered from America’s deepest values, the president has given Congress every reason to become more greatly involved in directing the ship of state.

 

Photo credit:  Sen. Bob Corker (R-TN), chairman of the Senate Foreign Relations Committee and ranking member Sen. Bob Menendez (D-NJ) prior to a committee meeting on April 23, 2018 (Alex Wong/Getty Images). 

About the Author(s)

Rob Berschinski

Senior Vice President for Policy at Human Rights First, Former Deputy Assistant Secretary of State for Democracy, Human Rights, and Labor Follow him on Twitter (@RobBerschinski).

Ryan Goodman

Co-Editor-in-Chief of Just Security, Anne and Joel Ehrenkranz Professor of Law at New York University School of Law, former Special Counsel to the General Counsel of the Department of Defense (2015-2016). You can follow him on Twitter @rgoodlaw.