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that are in the United States of the following persons are blocked and may not be transferred, paid, exported, withdrawn, or otherwise dealt in: any foreign person determined by the Secretary of the Treasury, in consultation with the Secretary of State, the Attorney General, and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