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Trump Issues Executive Order on September 12th on Election Interference Sanctions

Trump Issues Executive Order on September 12th on Election Interference Sanctions

by | Sep 15, 2018 | Election Interference, Russia, Uncategorized

President Trump issued an Executive Order (“EO”) on September 12th to impose certain sanctions in the event of foreign interference in an U.S. election (particularly timely given the upcoming mid-term elections).  Please see: https://www.treasury.gov/resource-center/sanctions/Programs/Documents/election_eo.pdf.

National Security and Foreign Policy Emergency:

The EO states the threat has become a concern of national security and foreign policy.  It points to the relatively recent proliferation of digital devices and internet-based communications as having created significant vulnerabilities and having magnified the scope and intensity of the threat of foreign interference.

Two Post Election 45 Day Review Periods:

The EO sets up a two 45 day post election review periods.   The first 45 day review period is for the Director of National Intelligence to deliver an assessment and appropriate supporting information to the President, the Secretary of State, the Secretary of the Treasury, the Secretary of Defense, the Attorney General, and the Secretary of Homeland Security.   Then the EO provides that, within 45 days of receiving the assessment and information, the Attorney General and the Secretary of Homeland Security shall deliver to the President, the Secretary of State, the Secretary of the Treasury, and the
Secretary of Defense a report evaluating:

(i) the extent to which any foreign interference materially affected the security or integrity of the election infrastructure, the tabulation of votes, or the timely transmission of election results; and

(ii) if any foreign interference involved activities targeting the infrastructure of, or pertaining to, a political organization, campaign, or candidate, the extent to which such activities materially affected the security or integrity of that infrastructure, including by unauthorized access to, disclosure or threatened disclosure of, or alteration or falsification of, information or data.

SND Designation:

The key remedy to counteract such interference will be the designation of persons as specially designated nationals as follows:

All property and interests in property that are in the United States of the following persons are blocked and may not be transferred, paid, exported, withdrawn, or otherwise dealt in: any foreign person determined by the Secretary of the Treasury, in consultation with the Secretary of State, the Attorney General, and the Secretary of Homeland Security:

(i) to have directly or indirectly engaged in, sponsored, concealed, or otherwise been complicit in foreign interference in a United States election;

(ii) to have materially assisted, sponsored, or provided financial, material, or technological support for, or goods or services to or in support of, any activity described above or any person whose property and interests in property are blocked pursuant to this order; or

(iii) to be owned or controlled by, or to have acted or purported to act for or on behalf of, directly or indirectly, any person whose property or interests in property are blocked pursuant to this order.

Additional Possible Sanctions:

The EO provides for additional sanctions on a case-by-case basis as follows:

Additional proposed sanctions may be imposed with respect to the largest business entities licensed or domiciled in a country whose government authorized, directed, sponsored, or supported election interference, including at least one entity from each of the following sectors: financial services, defense, energy, technology, and transportation (or, if inapplicable to that country’s largest business entities, sectors of comparable strategic significance to that foreign government).  Any recommended sanctions may include one or more of the following with respect to each targeted foreign person:

(i) blocking and prohibiting all transactions in a person’s property and interests in property subject to United States jurisdiction;
(ii) export license restrictions under any statute or regulation that requires the prior review and approval of the United States Government as a condition for the export or re-export of goods or services;
(iii) prohibitions on United States financial institutions making loans or providing credit to a person;
(iv) restrictions on transactions in foreign exchange in which a person has any interest;
(v) prohibitions on transfers of credit or payments between financial institutions, or by, through, or to any financial institution, for the benefit of a person;
(vi) prohibitions on United States persons investing in or purchasing equity or debt of a person;
(vii) exclusion of a person’s alien corporate officers from the United States;
(viii) imposition on a person’s alien principal executive officers of any of the sanctions described in this section; or
(ix) any other measures authorized by law.

 

 

Russia Nerve Agent Sanctions Take Hold Effective August 27, 2018

Russia Nerve Agent Sanctions Take Hold Effective August 27, 2018

by | Aug 25, 2018 | Russia

The Department of State’s Bureau of International Security and Nonproliferation issued a public notice on August 24, 2018 regarding the specifics of the Russia Nerve Agent sanctions (please see my post of August 9, 2018).   The Department advised the notice is scheduled to be published in the Federal Register on 08/27/2018 and is available online at https://federalregister.gov/d/2018-18503.

The specifics, which are to be applied for at least one year until further notice, include:

1. Foreign Assistance: Termination of assistance to Russia under the Foreign
Assistance Act of 1961, except for urgent humanitarian assistance and food or other
agricultural commodities or products.

2. Arms Sales: Termination of

(a) sales to Russia under the Arms Export Control Act of
any defense articles, defense services, or design and construction services, and

(b) licenses for the export to Russia of any item on the United States Munitions List, but
waived on a case-by-case basis with respect to the issuance of licenses in support of government
space cooperation and commercial space launches.

3. Arms Sales Financing: Termination of all foreign military financing for Russia under
the Arms Export Control Act.

4. Denial of United States Government Credit or Other Financial Assistance: Denial to
Russia of any credit, credit guarantees, or other financial assistance by any
department, agency, or instrumentality of the United States Government, including
the Export-Import Bank of the United States.

5. Exports of National Security-Sensitive Goods and Technology: Prohibition on the
export to Russia of any goods or technology on that part of the control list established
under Section 2404(c)(1) of the Appendix to Title 50.

The Department is waiving these sanctions in the interests of national security with
respect to the following on a case-by-case basis (meeting all the terms of the below
noted license exception will permit one to move forward):

LICENSE EXCEPTIONS: Exports and reexports of goods or technology eligible
under License Exceptions GOV, ENC, RPL, BAG, TMP, TSU, APR, CIV, and AVS.

SAFETY OF FLIGHT: Exports and reexports of goods or technology pursuant to
new licenses necessary for the safety of flight of civil fixed-wing passenger aviation.

DEEMED EXPORTS/REEXPORTS: Exports and re-exports of goods or technology
pursuant to new licenses for deemed exports and reexports to Russian nationals.

WHOLLY-OWNED U.S. SUBSIDIARIES: Exports and reexports of goods or
technology pursuant to new licenses for exports and reexports to wholly-owned U.S.
subsidiaries in Russia.

SPACE FLIGHT: Exports and reexports of goods or technology pursuant to new
licenses in support of government space cooperation and commercial space launches.

COMMERCIAL END-USERS: Exports and reexports of goods or technology
pursuant to new licenses for commercial end-users civil end-uses in Russia.

SOEs/SFEs: Exports and reexports of goods or technology pursuant to new licenses
for Russian state-owned or state-funded enterprises though subject to a “presumption
of denial” policy.

New Russia Sanctions Arising from Nerve Agent Attack

New Russia Sanctions Arising from Nerve Agent Attack

by | Aug 9, 2018 | Russia

The Department of State just issued this press release on new Russia sanctions:

“Press Statement

Heather Nauert
Department Spokesperson
Washington, DC
August 8, 2018

Following the use of a “Novichok” nerve agent in an attempt to assassinate UK citizen Sergei Skripal and his daughter Yulia Skripal, the United States, on August 6, 2018, determined under the Chemical and Biological Weapons Control and Warfare Elimination Act of 1991 (CBW Act) that the Government of the Russian Federation has used chemical or biological weapons in violation of international law or has used lethal chemical or biological weapons against its own nationals.

Following a 15-day Congressional notification period, these sanctions will take effect upon publication of a notice in the Federal Register, expected on or around August 22, 2018.”

The immediate impact of these new sanctions is that any attempt by a U.S. company to obtain an export license on certain items implicating national security concerns will be denied.   Attempts to prove such items will be used for legitimate purposes, with safeguards to protect U.S. national security, will represent a very tough burden of proof.  Sample items include gas turbine engines, electronics, integrated circuits as well as testing and calibration equipment.

The CBW Act will require the imposition of tougher sanctions to be imposed in three months if Russia fails to take corrective measures.  To avoid such sanctions, the U.S. Government would have to find that Russia is:

  • no longer using chemical or biological weapons;
  • providing reliable reassurances that it will not use them in the future; and
  • allowing international inspectors to ensure compliance.

It is unlikely such findings will be forthcoming in the short three months to come.