House Republicans this week joined with the chamber’s Democratic majority to pass Russia legislation that highlights the bad joke Congress has become. When not calling for a pointless investigation that will enable them to preen in opposition to Vladimir Putin — something Democrats never cared to do prior to Hillary Clinton’s loss and Republicans have done less since Donald Trump’s win — the proposed legislation does what Congress has become best at: delegating its authority to the president, so it can later complain about how he uses it.
The Washington Examiner reports that the bipartisan “Vladimir Putin Transparency Act” passed on Tuesday “would require the Trump administration to investigate Russian President Vladimir Putin’s wealth.”
It wouldn’t really.
In our system, investigation and prosecution are functions of executive discretion and judicial due process. This is why, to take the most notable examples, the Constitution prohibits bills of attainder (which single out a person for punishment without trial) and ex post facto laws (which criminalize conduct that was legal when committed). The Framers wanted Congress to write the laws but stay out of the enforcement business — the two tasks in one set of hands being, notoriously, a recipe for tyranny. While Congress may urge the executive to conduct an investigation, it has no constitutional authority to direct that this be done.
Not surprisingly, then, when we read the legislation closely, we find that that the Putin Act, if ever signed into law, would express the “Sense of Congress” that the executive branch (specifically, U.S. intelligence agencies) “should”: (1) “expose key networks that the corrupt political class in Russia uses to hide the money it steals, (2) “stifle Russian use of hidden financial channels,” and (3) “do more to expose the corruption of Vladimir Putin.” But it would not mandate an investigation.
(By the way, did Republicans realize that the provision about Russia’s use of hidden financial channels is a shot across the bow at the president? It says investigators should “stifle” Russian “real estate investments”; it has been widely reported that Kremlin-connected Russians have invested heavily in Trump Organization properties. Intelligence Committee chairman Adam Schiff says his sprawling investigation of Trump businesses will focus on money laundering — which obviously entails tracing the potentially criminal sources of Russian funds used to purchase Trump real-estate offerings.)
What the legislation would direct the executive to do is report to Congress on Putin’s personal wealth and assets. U.S. intelligence agencies have been all over this subject for over a decade. The exacting report the House demands would not advance our government’s knowledge of the Russian dictator; but if it were produced and made public — the legislation calls for an unclassified report that “may include a classified annex” — it could alert Putin to American and allied intelligence sources that are informing on him.
To be clear, I am not saying Congress should mind its own business. Quite the opposite. Congress has committees with appropriate security clearances that should be demanding information from the intelligence agencies that it lavishly funds. Both chambers should be exploring legislative means to frustrate the Putin regime’s capacity to acquire assets and move money around. But the currently proposed legislation is political grandstanding. It would not improve our intelligence product, and could compromise it.
The House also passed three other Russia-related bills this week.
First, there is the absurdly branded KREMLIN Act. (“Keeping Russian Entrapments Minimal and Limiting Intelligence Networks” — are we trying to convince the Russians we’re just kidding?) It, too, seeks to have intelligence agencies do things they are already doing: assess Russia’s threats to NATO allies, its possible responses to stepped up U.S. military presence in eastern Europe, and its potential to exploit divisions among western allies. (All of these things are, incidentally, consistent with the Democrats’ theme that Trump is undermining NATO and driving a wedge between America and our allies).
Next, there is a resolution condemning the murder of democracy activist Boris Nemtsov and the Kremlin’s persecution of dissenters. This is a worthy expression of national sentiment — and if it jabs at the president’s galling insouciance about Putin’s monstrousness, good.
Finally, as if to prove lawmakers have learned nothing, there is the “Crimea Annexation Non-recognition Act,” approved by a whopping 427–1 margin. It would prohibit the United States — specifically, the president — from recognizing Russia’s claim of sovereignty over Crimea, which it annexed from Ukraine in 2014. This, too, is a worthy expression of national sentiment, and apt because the Trump administration’s admirable sanctions against Russia in response to the war in Ukraine have been obscured by the president’s curiously muted response to Russia’s aggression.
To be sure, by encroaching on the president’s authority to conduct foreign relations, the bill raises serious constitutional questions. In its 2015 ruling in Zivotovsky v. Kerry, the Supreme Court reaffirmed the president’s power to recognize foreign nations and governments — over strong dissents from Justice Scalia and Chief Justice Roberts (both joined by Justice Alito). Both the dissents and the majority (the latter more in the manner of lip-service) acknowledged Congress’s foreign-affairs powers. It is interesting to ponder how the Court, with its new composition, might assess a president’s indulgence of Russian territorial annexation that blatantly defies international agreements endorsed by the United States.
All that said, let us assume for argument’s sake that Congress has the authority to direct the president not to recognize Putin’s seizure of Ukrainian territory. The problem with the bill passed this week is that, after proposing to exercise that authority, the House undoes the exercise by prescribing a waiver: Russia’s annexation of Crimea may be recognized if the president “determines that it is vital to the interests of the United States to do so.”
We cannot predict the future. Humility cautions against our saying there are no conceivable circumstances in which it would ever be in our interests — let alone vitally in our interests — to approve Russia’s aggression. We can, however, learn from the past, or at least we should be able to do so.
Why were we saddled with President Obama’s atrocious Iran deal? Because Congress had empowered the president to waive congressional sanctions. Why does President Trump have unilateral power to impose tariffs that many in Congress oppose? Because Congress delegated this authority to the president. Why was this week’s main event on Capitol Hill an inevitably futile rejection by Congress of the president’s dubious declaration of a national emergency (to construct border barriers that Congress has refused to approve)? Because Congress has allowed presidents to unilaterally declare national emergencies that enable extraordinary executive lawmaking.
Why does Congress keep delegating its authority to other actors, especially the executive? Because lawmakers do not want to be accountable. They appear to think that the gig requires posturing on cable television about the nation’s challenges while evading the hard work of dealing with them responsibly.
That is “responsibly,” as in demonstrating a willingness to put oneself on the line for the decisions one has been elected to make . . . rather than holding the nation’s coat.