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Executive Branch Imposes Limited Russia-Related Sanctions After Statutory Deadlines

  • Please note a correction has been issued for this article.
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Despite the passage of several statutory deadlines, by February 2018 the Trump administration had imposed no Russia-related sanctions pursuant to certain provisions of the Countering America's Adversaries Through Sanctions Act (CAATSA), suggesting at one point that the threat of sanctions alone would be sufficient to deter further malfeasance. Then, on March 15, 2018, more than five months after the passage of an initial statutory deadline, the Trump administration announced that it would impose sanctions on five entities and nineteen individuals for their involvement in “malign” cyber activities on behalf of the Russian government.

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1 Countering America's Adversaries Through Sanctions Act, Pub. L. No. 115-44, 131 Stat. 886 (2017) (codified as amended in scattered sections of 22 U.S.C.).

2 See Patricia Zengerle, Trump Administration Holds Off on New Russia Sanctions, Despite Law, Reuters (Jan. 29, 2018), at https://ca.reuters.com/article/topNews/idCAKBN1FI2V7-OCATP; Carol Morello, White House Says There's No Need for New Russia Sanctions, Wash. Post (Jan. 29, 2018), at https://www.washingtonpost.com/world/national-security/rich-russians-still-waiting-to-exhale/2018/01/29/7df459ca-052a-11e8-8777-2a059f168dd2_story.html?utm_term=.9dd3aa3574b6.

3 See Countering America's Adversaries Through Sanctions Act, supra note 1, at § 224(a), 131 Stat. at 908 (requiring the imposition of sanctions with respect to Russian cyber activities “[o]n and after the date that is 60 days after the date of the enactment of this Act”).

4 See Peter Baker, White House Penalizes Russia over Election Meddling and Cyberattacks, N.Y. Times (Mar. 15, 2018), at https://www.nytimes.com/2018/03/15/us/politics/trump-russia-sanctions.html?hp&action=click&pgtype=Homepage&clickSource=story-heading&module=first-column-region&region=top-news&WT.nav=top-news; U.S. Dep't of Treas. Press Release, Treasury Sanctions Russian Cyber Actors for Interference with the 2016 U.S. Elections and Malicious Cyber-Attacks (Mar. 15, 2018), at https://home.treasury.gov/news/press-releases/sm0312 [https://perma.cc/LR4Z-BBSR].

5 See generally Kristina Daugirdas & Julian Davis Mortenson, Contemporary Practice of the United States, 111 AJIL 1015 (2017) (discussing the Countering America's Adversaries Through Sanctions Act's substantive provisions); see also Kristina Daugirdas & Julian Davis Mortenson, Contemporary Practice of the United States, 111 AJIL 483, 483–504 (discussing evidence of Russian interference with the 2016 U.S. election, the response of the Obama administration, and the approach taken initially by the Trump administration).

6 Countering America's Adversaries Through Sanctions Act, supra note 1, at § 201, 131 Stat. at 898.

7 Id. § 222(a), 131 Stat. at 906–07.

8 See generally id. §§ 221–38, 131 Stat. at 906–22.

9 E.g., id. § 216, 131 Stat. at 900–06.

10 Id. §§ 241–243, 131 Stat. at 922–25.

11 Id. § 224(a), 131 Stat. at 908–10.

12 Id. § 228, 131 Stat. at 913–15.

13 Id. § 231, 131 Stat. at 916–17.

14 Id. § 224(a), (c), 131 Stat. at 908–09.

15 Id. § 231(a), 131 Stat. at 916.

16 Id.

17 Id. § 231(b), 131 Stat. at 916–17.

18 Id. § 231(c), 131 Stat. at 917.

19 See Peter Baker, Trump's Conspicuous Silence Leaves a Struggle Against Russia Without a Leader, N.Y. Times (Feb. 17, 2018), at https://www.nytimes.com/2018/02/17/us/politics/trump-russia.html (“Mr. Trump's position stood in contrast to that of fellow Republicans who responded to the indictment with calls for tougher action against Russia.”); Kheel, Rebecca, Armed Services Chair on Russian Meddling: “There Has to Be a Price to Be Paid, The Hill (Feb. 28, 2018), at http://thehill.com/policy/defense/376114-armed-services-chairman-on-russian-meddling-there-has-to-be-a-price-to-be-paid (quoting Republican Representative Mac Thornberry, chairman of the House Armed Services Committee, as saying in response to questions about National Security Director Michael Rogers's earlier testimony about Russia, “An aggressor will always push forward and do more until he meets resistance. We've seen that time and time again over history. There has to be a price to be paid.”); Maegan Vazquez, GOP Sen. Kennedy: Trump Should Have Talked About Russia Sanctions at SOTU, CNN (Jan. 31, 2018), at https://edition.cnn.com/2018/01/31/politics/john-kennedy-russia-sanctions-state-of-the-union-cnntv/index.html (quoting Republican Senator John Kennedy's reaction to President Trump's State of the Union Address: “I wish he'd talked about sanctions on the Russians and explained to us why he is not immediately imposing the sanctions, because I think President Putin has acted for the past five years like a thug.”). Democratic lawmakers in both the House and Senate introduced resolutions in February calling on President Trump to impose sanctions pursuant to CAATSA. See H. Res. 749, 115th Cong. (2018); S. Res. 402, 115th Cong. (2018).

20 Zengerle, supra note 2.

21 Countering America's Adversaries Through Sanctions Act, supra note 1, at § 231(c), 131 Stat. at 917; see also Chesney, Robert, Is the Trump Administration Breaking the Law by Failing to Issue New Russia Sanctions, Lawfare Blog (Jan. 31, 2018), at https://www.lawfareblog.com/trump-administration-breaking-law-failing-issue-new-russia-sanctions (concluding that the Trump administration has likely made “a ‘delay’ determination under 231(c)”).

22 See Indictment, United States v. Internet Research Agency LLC et al., No. 1:18-cr-00032-DLF, 2018 WL 914777 (D.D.C. filed Feb. 16, 2018), available at https://assets.documentcloud.org/documents/4380504/The-Special-Counsel-s-Indictment-of-the-Internet.pdf [https://perma.cc/V6J6-GH7M]. The special counsel is mostly independent from the Trump administration, as part of his mandate is to investigate “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump.” Rod J. Rosenstein, Acting Attorney General, Order No 3915-2017 re Appointment of Special Counsel to Investigate Russian Interference with the 2016 Presidential Election and Related Matters (May 17, 2017), at https://www.justice.gov/opa/press-release/file/967231/download [https://perma.cc/6M9E-T4ZV].

23 U.S. Dep't of State Press Release, Department Press Briefing (Feb. 20, 2018), at https://www.state.gov/r/pa/prs/dpb/2018/02/278501.htm [https://perma.cc/9W4E-PXD9].

24 See Letter from Robert Menendez, U.S. Senator, to Rex Tillerson, U.S. Sec'y of State, and Steven Mnuchin, U.S. Sec'y of Treasury (Feb. 28, 2018) (noting that the Trump administration has “failed to impose any sanctions against Russia for its cyber activity, even though Section 224 of CAATSA requires sanctions against anyone who knowingly undermines the cyber security of an individual or a democratic institution on behalf of the Russian government”).

25 Countering America's Adversaries Through Sanctions Act, supra note 1, at § 224(a), 131 Stat. at 908; see also Chesney, supra note 21 (remarking that there is “no sign that the [Section 224(c) waiver] provision has been invoked, and … it seems that it could not be invoked in good faith given that certification requirement”).

26 See Off. of the Brit. Prime Minister Press Release, Salisbury Attack: Joint Statement From the Leaders of France, Germany, the United States and the United Kingdom (Mar. 15, 2018), at https://www.gov.uk/government/news/salisbury-attack-joint-statement-from-the-leaders-of-france-germany-the-united-states-and-the-united-kingdom (commenting that “it was highly likely that Russia was responsible for the attack”).

27 U.S. Dep't of Treasury Press Release, supra note 4.

28 Id.

29 Id.

30 Id.

31 Id.

32 Id.

33 Countering America's Adversaries Through Sanctions Act, supra note 1, at § 241(a)(1)(A)–(E), 131 Stat. at 922–23.

34 See U.S. Dep't of Treasury, Report to Congress Pursuant to Section 241 of the Countering America's Adversaries Through Sanctions Act of 2017 Regarding Senior Foreign Political Figures and Oligarchs in the Russian Federation and Russian Parastatal Entities (2018) [hereinafter Treasury Report], available at https://s0.rbk.ru/v6_top_pics/media/file/8/78/755172907012788.pdf; Neil MacFarquhar & Peter Baker, Trump's Stance on Russia Sanctions Angers Both Moscow and Washington, N.Y. Times (Jan. 30, 2018), at https://www.nytimes.com/2018/01/30/world/europe/kremlin-russia-trump-list.html.

35 US. Dep't of Treas. Press Release, Treasury Information on CAATSA Report and Russian Sanctions (Feb. 1, 2018), at https://home.treasury.gov/news/press-releases/sm0276 [https://perma.cc/B6M2-U7JS].

36 Id.

37 U.S. Dep't of State Press Release, Unsafe Russian Military Practices (Jan. 29, 2018), at https://www.state.gov/r/pa/prs/ps/2018/01/277753.htm [https://perma.cc/CVQ7-9SWL].

38 MacFarquhar & Baker, supra note 34 (further quoting Putin as saying, “We were prepared to undertake retaliatory steps, and quite serious ones too, which would cut our relations to zero.”).

39 Morello, supra note 2.

40 See Gardiner Harris, Coming U.S. List of Oligarchs Linked to Putin Alarms Russia's Rich, N.Y. Times (Jan. 26, 2018), at https://www.nytimes.com/2018/01/26/us/politics/russia-oligarchs-list-sanctions.html?action=click&contentCollection=Europe&module=RelatedCoverage&region=EndOfArticle&pgtype=article; Treasury Report, supra note 34.

41 Harris, supra note 40.

42 See Borger, Julian, US “Name-and-Shame” List of Russian Oligarchs Binned by Top Trump Official-Expert, Guardian (Jan. 30, 2018), at https://www.theguardian.com/world/2018/jan/30/russia-kremlin-list-trump-administration-forbes; Adam Taylor, “The Kremlin List”: Why Russian Oligarchs Shrugged, Wash. Post (Jan. 30, 2018), at https://www.washingtonpost.com/news/worldviews/wp/2018/01/30/the-kremlin-list-why-russian-oligarchs-shrugged/?utm_term=.91cf9383dcf1.

43 Taylor, supra note 42; see also Dep't of Treas. Press Release, supra note 35 (“The unclassified report was derived from open source materials which include websites, government documents, public records, and news stories among other items. The classified version was derived from classified sources and methods.”).

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