Four Thoughts on Denis McDonough’s Letter to Senator Corker on the Iran Deal

By Jack Goldsmith
Sunday, March 15, 2015, 12:27 AM

President Obama’s Chief of Staff, Denis McDonough, has written a good response to Senator Corker’s letter to the President on the Iran nuclear deal.  Recall that Senator Corker had asked “whether [the President is] considering going to the United Nations Security Council without coming to Congress first.”  Here is my summary of McDonough's answer:

The Executive branch has extensively briefed Congress on the Iran negotiations.

Congress will have a role to play.  It will vote on any comprehensive deal with Iran, for only Congress can “terminate” existing sanctions (i.e. kill them permanently).

Congress’s statutory sanctions will “remain in place” even as the administration “suspend[s] some of them using waivers” that Congress included in the sanctions laws.

The White House strongly opposes the bill that Corker introduced that would require the Iran deal to be sent to Congress for review and approval.  The White House thinks this bill, if it became a law, would likely have a “profoundly negative impact” on ongoing negotiations.  The President pledges to veto it.

The deal the President is negotiating with Iran is like many other non-binding agreements negotiated by the President in similar contexts without congressional approval.

The Security Council will have “a role to play in any deal with Iran.”  That role will involve passing a resolution "to register its support for any deal and increase its international legitimacy” (and will presumably involve lifting UN sanctions).

Once the deal is reached, the administration expects a “robust debate” in Congress and knows that Congress will “make its own determinations about how to respond to the deal.”  But the administration asks for time to finish the negotiations before Congress weighs in.

Four thoughts on McDonough's letter:

First, I think McDonough's answer to Corker is a qualified "yes."  If “coming to Congress first” means coming to Congress for a vote of approval on the Iran deal, the answer is “yes,” the President plans to go to the Security Council for a vote of approval on the deal (if it is reached) before he goes to Congress for a vote of approval.  But the President's position (or at least my interpretation of it) is that this ordering is typical and makes sense because only the UN can bless a reduction of UN sanctions, while the Congress has delegated to the President the authority to waive U.S. sanctions without the need for further congressional approval.

Second, McDonough's letter strikes me as a sensible response to Corker’s letter.  It lays out why the President is acting lawfully.  And it asks for the type of breathing room in diplomatic negotiations that is traditionally the President’s prerogative and that Republicans would certainly give a Republican President as a matter of principle.  I am not saying that Congress would act unconstitutionally were it to pass the Corker Bill, and I am not arguing against congressional criticism of ongoing negotiations.  I am simply pointing out that what David Brooks recently described as “customary acts of self-restraint” would normally lead Congress to let the President complete the negotiation before weighing in so aggressively.  I know the reason for the aggressive action -- Congress worries about being presented with a deal it cannot easily unwind.  But my point still holds.

Third, Congress deserves a lot of the blame for its current predicament.  The President is able to negotiate a non-binding agreement with Iran in which he can offer relief from U.S. sanctions only because Congress gave the President such extensive waiver authority in its sanctions laws.  In other words, it was Congress that empowered the President with the bargaining chip of reduced U.S. sanctions that he can offer up in his traditional role as the organ of diplomacy for the United States.   One wonders if future sanctions and related foreign relations statutes will contain such extensive waivers.  President Obama’s lawful exercise of the waivers in this context might lead Congress be more careful about waiver authority in the future

Fourth, the one issue that McDonough noticeably did not address is whether the Security Council Resolution will in any way impose an international legal obligation that affects a future president’s ability, consistent with international law, to reimpose sanctions under domestic law.  Bernadette Meehan of NSC said Thursday that a Security Council Resolution "wouldn’t … impede the ability of any parties to the deal to reach its own judgments about compliance by other parties or conclude that the deal no longer served their interests and withdraw from it.” But then the following day the State Department’s Jen Psaki danced around a question on this topic.  She implied that she thought the UN Resolution would not bind the United States under international law to remove its sanctions, but she hesitated and said she would need to “talk to our lawyers” before answering definitively.  McDonough did not address the issue either – at least not directly or obviously so.  This is a bit puzzling since the issue is of such concern to many members of Congress.  I expect that McDonough’s silence will be discussed on the Sunday talk shows.