By Andrew C. McCarthy — April 2, 2016
(Alex Wong/Getty Images)
President Obama and his subordinates blatantly lied to Congress in order win approval — or, more accurately, to escape disapproval — of his Iran nuclear deal. At a time when jihadist mass-murder attacks are surging, and when the Syrian regime’s war crimes are abetted by Iran’s jihadist armed forces (which include Hezbollah and the Quds Force, both formally designated terrorist organizations), Obama’s deal infuses Iran, the world’s leading state sponsor of terrorism and an unapologetic enemy of the United States, with over $100 billion in sanctions relief . . . some slice of which, the Obama administration admits, will be diverted to terrorism.
This is old news, of course. Yet, it is worth repeating, for two reasons.
First, these are impeachable offenses of the first order. As I recounted in Faithless Execution, the Framers of our Constitution counted presidential dishonesty in dealings with Congress and presidential concealment of dealings with foreign powers as among the most egregious high crimes and misdemeanors.
Second, Obama is doing it again.
To persuade the Republican-controlled Congress to refrain from rejecting the Iran deal, even under the shamefully indulgent Corker-Cardin process to which GOP leaders agreed, the Obama administration made two key promises. The first was that, if Congress went along with Obama on dismantling nuclear sanctions (for the purportedly greater good of winning the terror regime’s commitment not to build nuclear weapons), the administration would stand strong on other sanctions — sanctions that punish Iran for its terror promotion, ballistic-missile development, and related aggression. The second promise was that Iran would continue to be banned from the U.S. financial system.
The latter is a critical restraint on the mullahs. Because the dollar is the world’s reserve currency, the inability to transact in dollars is a significant impediment to commerce — and thus a fitting punitive measure against a rogue nation that bankrolls jihadists. Moreover, because Iran’s economy is dominated by a terrorist entity (the Iran Revolutionary Guard Corps), a key component of which is the Quds Force (again, formally designated as a terrorist organization), insulating our financial system from Iran’s prevents our banks and commercial actors from supporting Iranian terrorism (after all, Obama is already doing quite enough of that).
Now, having gotten his deal past Congress, Obama is reneging on both commitments.
Between Obama’s bizarre desperation to strike a deal with our enemies and Secretary of State John Kerry’s incompetent statecraft, the administration’s treachery was inevitable. Although Congress was promised that the administration would snap sanctions back into place if Iran violated the nuclear agreement, the text of the deal notes Iran’s position that “if sanctions are reinstated in whole or part,” that creates “grounds [for Iran] to cease performing commitments” under the deal.
Thus, every time the administration even hints at serious enforcement, Iran threatens to walk away from its obligations (now that it has already pocketed substantial benefits). And since Iran has seen that its intransigence works, it now wins concessions by threatening to abandon the deal in the face of any American policy of which it disapproves. For example, when Congress reacted to December’s jihadist attacks in Paris by enacting restrictions on travel to the United States from countries that are terrorist hot spots, Tehran claimed that applying the restrictions to Iran would violate the deal. Naturally, Obama caved: claiming that it was somehow in the “national security interests of the United States” to waive the anti-terror restrictions for those who travel through the world’s worst terror-sponsoring nation.
This is how Iran eviscerated the non-nuclear sanctions Obama vowed to uphold. It bleated that, to obtain Iran’s agreement, Obama and Kerry had promised to lift sanctions that target various sectors of Iran’s economy. But, as analyst Omri Ceren points out, many of those sanctions do not target Iran’s nuclear program — they relate to terrorism, ballistic missiles, money laundering, etc.
To appease the mullahs, and despite what the administration had represented to Congress, Obama essentially deemed the non-nuclear sanctions to be nuclear. This signals to business corporations and financial institutions considering business with Iranian entities that these sanctions may be considered inoperable — even though, under American statutory law, they remain in effect.
And now this week it emerged that, after struggling to keep the matter under wraps, Obama is preparing to give Iran access to the U.S. financial system. The scheme would start out small at first: Currency conversion into dollars would be permitted in the intermediary steps of commercial transactions with Iranian entities as long as Iranian banks were not involved and American dollars were not directly exchanged for Iranian rials. Even this step, however, is an outrageous betrayal of repeated assurances that White House, State, and Treasury officials gave Congress while the Iran deal was being negotiated. Furthermore, it would begin an inevitable and rapid progression to full-blown Iranian participation in our markets, effectively co-opting American commerce for the purpose of legitimizing the regime and its nefarious activities.
Regarding the administration’s deceitfulness and the aid and comfort it is giving to our enemies, a few final observations are in order.
As I made as clear as I could in Faithless Execution, the Framers intended impeachment to be a vital congressional check on maladministration by the executive branch. I do not say that to be provocative; I say it to be clinical: This is the way the system is designed — with the expectation that presidents who lie to Congress and abet our enemies will be impeached. If impeachment becomes a dormant or illusory check, our system lacks adequate means to contain a rogue president.
With respect to some executive misconduct, especially in the realm of foreign affairs, Congress’s power of the purse is not a practical check, especially if Congress has already funded the government for the year. If Congress forswears impeachment, not only of the president but of subordinate executive officials who carry out his derelictions, there simply is no other adequate countermeasure. With a president like Obama, who is committed to radical change and who has no other elections to face (i.e., no incentive to rein in his radicalism), the choice is either to start impeaching executive officials or to accept that we are in for another 300 days of profound damage to the United States.
Finally, to mitigate the damage, it will be necessary to play Obama’s game. The president rules by executive action because there is sparse congressional support for his transformative agenda. But he is nothing if not shrewd. Unable to get legislation enacted or treaties approved, he is seeking to take executive steps, including ones for which he has no authority, that will dramatically alter the facts on the ground. The idea is to spawn so many new contractual arrangements and international entanglements that, as a practical matter, the next president will be unable to undo them. The strategy is to bring about a new order by radically changed circumstances — a raw power politics that renders the absence of legal support irrelevant.
Consequently, Republicans cannot wait until there is a new president to fight back. The fight must be underway now: a fight to prevent the changed circumstances. In the case of the Iran deal, this means that presidential candidates and congressional leaders must make clear the commitment to enforce current law in the next administration — including prosecutions and civil actions against any businesses or financial institutions that violate statutory sanctions against Iran.
Obama’s deal is a mere executive agreement. As I have pointed out before, there is an argument that Congress gave Obama the authority to waive nuclear sanctions permanently; that is by no means certain, though, and it would not affect the viability of other sanctions in any event.
The president can pretend that he has boundless waiver authority, but he does not. He has no power in our constitutional system to repeal congressional statutes by fiat. He has no power to impose new international obligations without congressional approval in the form of law or a ratified treaty — no matter how many times he gets the U.N. Security Council to be his rubber stamp. And while the president’s pardon power is unreviewable (i.e., he could theoretically pardon individuals and businesses that flout the sanctions), this power extends only to criminal offenses (it would not insulate offenders from civil lawsuits), and it does not cover future wrongs (Obama cannot prospectively excuse sanctions violations committed after he is no longer president).
The radically changed circumstances Obama is trying to forge will happen only if individuals, businesses, financial institutions, and foreign actors believe that Obama’s lawlessness authorizes them to be lawless. If they are made to understand that it does not — that the sanctions are still in force and the next president fully intends to enforce them — then the players will refrain from actions that expose them to legal jeopardy. The status quo, though frayed, can be maintained.
And then Iran that can start worrying about radical change come January 2017.
— Andrew C. McCarthy is a senior policy fellow at the National Review Institute and a contributing editor of National Review.
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