Faculty Blog, Friedman, Hansen

Checking Trump, One Foreign Policy at a Time

We wrote recently, in Just Security, about December’s bipartisan Senate vote and resolution to withdraw U.S. military assistance from Yemen and to assign responsibility for the death of journalist Jamal Khashoggi to Saudi Crown Prince Mohammed bin Salman—legislative moves contrary to the policy wishes of the Trump administration.

The Senate’s actions suggested three developments in the relationship between the Republican-controlled Senate and the current President: First, that the Senate has the ability to meaningfully oversee U.S. participation in military actions ordered by the President without initial congressional approval; second, that the Senate can articulate approaches to foreign policy independent of the executive branch; and, third, that even Senators from the President’s own party are willing to forestall executive foreign policy decisions they believe are not in the nation’s best interest.

Of course, the question remained whether the Senate actions regarding Yemen and the Crown Prince indicated a renewed willingness by Republicans to police the President’s foreign policy decisionmaking. A vote last week regarding Russia policy certainly suggests the answer is yes.

The Senate vote on January 16 concerned a measure introduced by Senator Chuck Schumer of New York seeking to reverse a Treasury Department decision to lift the sanctions on companies controlled by the Russian oligarch, Oleg V. Deripaska, with ties to the Russian president, Vladimir V. Putin. A 2017 law allows Congress to override decisions by the Treasury Department regarding sanctions, provided that the House of Representatives and Senate pass resolutions within a certain time period.

In this case, the Treasury Secretary, Steven Mnuchin, lobbied Senators to reject the measure in order, he said, to prevent unintended consequences to companies in the U.S., Europe and elsewhere should the supply of aluminum be disrupted. And he was successful: Schumer’s measure did not receive enough Republican support to prevent Treasury from lifting the sanctions against Deripaska’s companies.

But it is significant that eleven Republicans broke ranks with their party’s leadership and joined their Democratic colleagues in supporting the effort to keep the sanctions in place. Those Senators could have been motivated by a calculation that there was little political downside to opposing the President regarding a foreign policy issue that is not top-of-mind for most Americans, much less most Republicans. Or, those Senators, like their Democratic colleagues, might have concluded that the benefit of maintaining sanctions against Deripaska in retaliation for Russia’s interference in the 2016 presidential election outweighed any potential collateral business consequences.

As far as the federal courts are concerned, there are lines that distinguish foreign affairs and national security issues from domestic issues. For example, in the famous Steel Seizure case, which concerned President Harry Truman’s effort to nationalize steel production in the midst of labor strife, the Supreme Court, in various opinions, made clear that the President has no particular authority in such domestic matters, no matter their potential national security implications.

But members of Congress and the public should understand that, outside of litigation, the world cannot be so neatly categorized as between domestic issues, on the one hand, and matters involving foreign affairs and national security, on the other.  This is particularly true today, in respect to everything related to Russia, where there are no clear lines between domestic issues and foreign policy issues. Russia, U.S. intelligence agencies agree, deliberately sought to undermine the integrity of an American presidential election, an action that should resonate in multiple spheres of legislative policy development.

This point should not be lost on all members of Congress.  Amidst mounting evidence of ties between the Trump administration and members of the Russian government, and the implications of attempts by the administration to hinder the full investigation of those ties, there really is no clear line separating foreign affairs, national security and domestic matters.

Indeed, if it turns out there is reason to believe either Putin or Russian oligarchs or their financial institutions have some leverage over the President of the United States, it will be the entirety of our national interests that may be at risk.

This article was co-authored by Lawrence Friedman and Victor Hansen:

Lawrence Friedman teaches constitutional law at New England Law | Boston and is the author, most recently, of the second edition of Modern Constitutional Law.

Victor Hansen is a Professor at New England Law | Boston where he teaches Criminal Law, Criminal Procedure, Evidence, and Prosecutorial Ethics.