April 14, 2022
Stop Iran Now/Washington Free Beacon - Adam Kredo
We thank The America First Legal Foundation for stepping up to the plate.
The distinguished group of lawyers and activists is threatening to smack the Biden administration with a lawsuit intended to thwart the implementation of a new Iran nuclear deal.
They notified the Biden administration that they "intends to take legal action to block any Biden-Iran deal that is not submitted to Congress" for approval, according to a liti
gation notice letter sent to the White House on Thursday and obtained exclusively by the Washington Free Beacon. The letter also requests that the administration preserve all internal documents and communications related to the deal so that they can be used as part of a future court case.
The legal group is engaging Republican lawmakers on the effort amid growing concerns that the Biden administration will circumvent Congress to ink a new deal, which would violate a 2015 law mandating that any new agreement with Iran be brought before the legislative branch for approval.
The legal threat is a sign of mounting opposition to a new nuclear accord and presents a new avenue to force the Biden administration into bringing the deal to Capitol Hill for a vote. With a new accord seemingly imminent, Republican lawmakers and some Democrats are concerned the administration will violate the law to push the deal to the finish line. Republican foreign policy leaders in Congress told the Free Beacon a lawsuit could delay the deal's implementation and force the administration into disclosing the full terms of a new deal, which will provide Tehran with billions of dollars in cash revenue and remove virtually all sanctions on the hardline regime.
Rep. Scott Perry (R., Pa), a member of the House Foreign Affairs Committee who has been briefed on the legal organization's lawsuit, told the Free Beacon the threat of a prolonged court case "puts the administration on notice so that they think twice before proceeding." The move, he said, "would likely delay any final action while chilling confidence in any potential agreement the terrorists in Iran may be considering and, in the best-case scenario, would void anything that was agreed upon without following the law."
Perry said the Biden administration has attempted to hide details of the deal from Congress, even in classified settings. The administration also has yet to guarantee that a deal will be brought to Congress before it is agreed upon.
"Almost all of the information we have about these proceedings has been in open-source reporting," Perry said. "Even in closed door briefings at the request of relevant committees, members are unable to get their specific questions answered."
The legal group's letter requests that the White House, State Department, and other federal agencies "segregate and preserve all records … that might be relevant to this matter."
"You are on notice to cease and desist from deleting or destroying all records, including but not limited to emails, whether under an agency document destruction policy or otherwise," the notice states. The America First Legal Foundation "considers these records to be valuable and irreplaceable sources of discoverable information."
If the case makes its way to court, the American public could get a look into the Biden administration's closed-door diplomacy with Tehran. This would include reams of information on the concessions discussed, such as removing Iran's regional terrorist forces from the sanctions list. It would also provide a window into the United States' reliance on Russia to secure a new accord. Moscow has served as the administration's top interlocutor in talks and stands to gain billions of dollars in revenue to build out potions of Iran's nuclear infrastructure when sanctions are waived.
Sen. Ted Cruz (R., Texas), a leading opponent of the deal, told the Free Beacon the Biden administration will skirt Congress because it knows there are not enough votes to endorse a deal.
"The Biden administration's deal will lift non-nuclear terrorism sanctions, pour tens of billions of dollars into Putin's coffers for nuclear work, pour hundreds of billions of dollars into the Ayatollah's coffers to spread missiles and war across the Middle East—and ultimately put Iran on a glide path to a nuclear weapons arsenal," Cruz said. "The administration has a constitutional obligation to submit any new Iran deal to the Senate for ratification as a treaty and a legal obligation to submit the deal and all secret side deals for certification but they won't, because they know that Congress would reject the deal," Cruz said. "So instead, we will do everything in our power to ensure it is never implemented and, if implemented, quickly reversed."
STOPIRANNOW encourages all members to do everything in their power to support The America First Legal Foundation and this critically important initiative.
A TEXT OF THE LETTER IS BELOW
April 13, 2022
The Hon. Joseph R. Biden, Jr. President of the United States 1600 Pennsylvania Avenue, N.W. Washington, D.C. 20500
The Hon. Anthony Blinken Secretary of State United States Department of State 2201 C Street NW Washington, DC 20520
The Hon. Merrick Garland Attorney General of the United States United States Department of Justice 950 Pennsylvania Avenue, N.W. Washington, D.C. 20530
Re: Iran Deal Litigation Hold
Dear President Biden, Secretary of State Blinken, and Attorney General Garland: America First Legal Foundation (AFL) writes on behalf of American citizens, Members of Congress, and victims of terrorism at the hands of the Islamic Republic of Iran and its proxies, Hamas and Hezbollah.
On May 8, 2018, President Donald J. Trump lawfully terminated the Joint Comprehensive Plan of Action (JCPOA) with the Islamic Republic of Iran— reimposing all sanctions that the Obama Administration had lifted—because the JCPOA failed to protect U.S. national security, enriched the Iranian regime, and enabled international terrorism.1
At best, the JCPOA merely delayed Iran’s pursuit of nuclear weapons while preserving its nuclear research and development activities.2
Consequently, the Iran Nuclear Agreement Review Act of 2015, 42 U.S.C. § 2160e, requires you to submit to Congress, for its review and approval, every “agreement” that is not otherwise a “treaty” under Article II, § 2, clause 2 and Article IV, clause 2
of the Constitution, between the Biden Administration and the Islamic Republic of Iran relating to Iran’s nuclear program.3 I. Statutory requirements The Iran Nuclear Agreement Review Act provides that no later than 5 calendar days after reaching any agreement with Iran, President Biden must transmit to Congress: (A) the agreement including all related materials and annexes; (B) a verification assessment report of the Secretary of State prepared under 42 U.S.C. § 2160e(a)(2); and (C) a certification that— (i) the agreement includes the appropriate terms, conditions, and duration of the agreement’s requirements with respect to Iran’s nuclear activities and provisions describing any sanctions to be waived, suspended, or otherwise reduced by the United States, and any other nation or entity, including the United Nations; and (ii) the President determines the agreement meets United States non- proliferation objectives, does not jeopardize the common defense and security, provides an adequate framework to ensure that Iran’s nuclear activities permitted thereunder will not be inimical to or constitute an unreasonable risk to the common defense and security, and ensures that Iran’s nuclear activities permitted thereunder will not be used to further any nuclear-related military or nuclear explosive purpose, including for any research on or development of any nuclear explosive device or any other nuclear-related military purpose. 42 U.S.C. § 2160e(a)(1) (emphasis added). 3 Under the statute: The term “agreement” means an agreement related to the nuclear program of Iran that includes the United States, commits the United States to take action, or pursuant to which the United States commits or otherwise agrees to take action, regardless of the form it takes, whether a political commitment or otherwise, and regardless of whether it is legally binding or not, including any joint comprehensive plan of action entered into or made between Iran and any other parties, and any additional materials related thereto, including annexes, appendices, codicils, side agreements, implementing materials, documents, and guidance, technical or other understandings, and any related agreements, whether entered into or implemented prior to the agreement or to be entered into or implemented in the future. 42 U.S.C. § 2160e(h)(1). 2
The Secretary of State’s “verification assessment report,” in turn, must include his assessment of (i) the extent to which he will be able to “verify” that Iran is complying with its obligations and commitments under the agreement; (ii) the adequacy of the safeguards and other control mechanisms and other assurances” to ensure that Iran’s activities permitted by an agreement “will not be used to further any nuclear-related military or nuclear explosive purpose, including for any research on or development of any nuclear explosive device or any other nuclear-related military purpose.” 42 U.S.C. § 2160e(a)(2) (emphasis added). The Biden Administration has spoken about a “a mutual return to compliance with the JCPOA.”4 But this is not a route to escape Congressional review or to avoid accountability for enriching and empowering the Iranian regime and its terrorist partners. Key sunset clauses have lapsed, and the regime has irreparably violated many of the JCPOA’s critical provisions. The idea of “return to compliance” is a risible fiction. II. Liability for businesses and individuals doing business with Iran Even assuming the Biden Administration may avoid its Constitutional obligation under Article II, § 2, clause 2 to obtain ratification by two-thirds of the U.S. Senate for its promises to Iran,5 a Biden-Iran deal that does not fully comply with the Iran Nuclear Agreement Review Act is without legal force or effect. Accordingly, a person who does business with or provides financial services to a currently sanctioned Iranian person will not be sheltered from potential liability for providing material support for terrorism in violation of 18 U.S.C. §§ 2339A, 2339B, and/or 2339C and similar laws. Nor is an officer or employee of the United States who acts under or pursuant to such a deal entitled to the safe harbor protection of 18 U.S.C. § 2337 against personal capacity liability. III. The Biden Administration cannot be trusted about Iran The Biden Iran policy is being made by former Obama Administration officials with close ties to the Iranian regime. This raises grave concerns for at least four reasons. First, the Obama administration systematically deceived Congress and the American people about the measures it was taking to prop up the Iranian dictators. A June 6, 2018, majority report by the Senate Permanent Subcommittee on Investigations documented how multiple Obama officials lied to Congress about 4 See Senior State Department Official on the JCPOA Talks, U.S. Department of State (Jan. 31, 2022), https://www.state.gov/senior-state-department-official-on-the-jcpoa-talks/. 5 A treaty is a contract with a foreign nation. Bond v. United States, 572 U.S. 844, 875 (2014) (Scalia, J., concurring); Whitney v. Robertson, 124 U.S. 190, 194 (1888). 3
opening the U.S. financial system to the regime. At the same time, Obama officials pressured European banks and firms to invest in Iran despite U.S. sanctions. A senior State Department official was quoted in the report acknowledging that such transactions “are prohibited by U.S. sanctions,” yet immediately after, he affirmed that the official and his colleagues were providing assistance to the Iranian regime “as a gesture of support.”6 Second, both John Kerry, President Biden’s climate “czar”, and Robert Malley, his Special Envoy for Iran, played key roles in negotiating the JCPOA. During the Trump Administration, these individuals advocated for the Iranian regime, obstructing Trump Administration policies that strengthened American national security and protected our regional allies by crippling the regime’s ability to spread terrorism; choking off the corrupt trade between foreign businesses and the regime’s principals; and freeing the Iranian people to live with their neighbors, including Israel, in peace. Neither Mr. Kerry nor Mr. Malley nor any of the other former Obama officials have been investigated and held accountable for their actions.7 Third, following President Obama’s blueprint, the Biden Administration team has kept Congress, the American people, and our regional allies in the dark about its support for the regime. All indications suggest that you are being less than forthcoming with Congress precisely because the Biden Administration insists on making extraordinary efforts to appease the Iranian regime, contrary to American interests. Three top U.S. diplomats have quit the negotiations because, according to a whistleblower, the Biden Iran deal is “much, much worse” than the Obama deal.8 Published reports indicate that you support allocating billions in International Monetary Fund special drawing rights to Iran (and to China and to Russia), which may be exchanged for U.S. dollars and other major currencies, to help the regime and to avoid Congressional oversight.9 And Congress has been forced to take 6 U.S. Senate, Permanent Subcommittee on Investigations, “Majority Report: Review of U.S. Treasury Department’s License to Convert Iranian Assets Using the U.S. Financial System,” pp. 2, 5-7, 11-14, 20, 33, 43-45 (June 6, 2018), https://www.hsgac.senate.gov/imo/media/doc/2018-06- 06%20PSI%20Majority%20Staff%20Report.pdf. 7 Ben Wolfgang and Guy Taylor, “John Kerry held backchannel talks with Iran, Javad Zarif”, The Washington Times (Feb. 21, 2021), https://www.washingtontimes.com/news/2021/feb/21/john-kerry- held-backchannel-talks-iran-javad-zarif/. 8 Gabriel Noronha, “This isn’t Obama’s Iran deal. It’s much, much worse”, Tabletmag.com (Mar. 7, 2022), https://www.tabletmag.com/sections/news/articles/this-isnt-obamas-iran-deal-its-much-much- worse. 9 Zachary Halaschak, “Kennedy presses Biden on support for IMF currency for Russia, Iran, and China”, The Washington Examiner (Apr. 6, 2022), https://www.washingtonexaminer.com/policy/economy/kennedy-presses-biden-on-support-for-imf- currency-for-russia-iran-and-china. 4
extraordinary measures to obtain information about your activities,10 precisely the kind of situation the Iran Nuclear Agreement Review Act was enacted to avoid. Finally, we note that you have entrusted Russia to negotiate the terms of the Biden-Iran deal, despite its actions in Ukraine. Reportedly, Secretary Blinken has renewed IV. You must preserve all records of your activities Please be advised that AFL intends to take legal action to block any Biden- Iran deal that is not submitted to Congress in full compliance with the Iran Nuclear Agreement Review Act. To prevent concealment and spoilation, and in addition to your general obligations under the Presidential Records Act and the Federal Records Act, this letter notifies you to segregate and preserve all records, including all electronically stored information, copies, data, and backup as defined by Fed. R. Civ. P. 34, and any paper files you maintain, that might be relevant to this matter. In addition, you are on notice to cease and desist from deleting or destroying all records, including but not limited to emails, whether under an agency document destruction policy or otherwise. AFL considers these records to be valuable and irreplaceable sources of discoverable information. Sincerely yours, /S/_________________________________ Reed D. Rubinstein America First Legal Foundation a series of sanctions waivers to allow Russia to perform $10 billion of Iranian nuclear work as part of a package of concessions intended to entice both countries into signing your new accord.11 This is, at best, senseless.
1 The White House, “Fact Sheet: President Donald J. Trump is Ending United States Participation in an Unacceptable Iran Deal”, (May 8, 2018), https://trumpwhitehouse.archives.gov/briefings- statements/president-donald-j-trump-ending-united-states-participation-unacceptable-iran-deal/.
2 Id.