The Khashoggi Affair: Can Congress Force the President’s Hand?

Two weeks after Saudi journalist and US legal resident Jamal Khashoggi disappeared following a visit to the Saudi Arabian consulate in Istanbul, a recent report indicates that Saudi officials are preparing to acknowledge his death during interrogation. The explanation that the Saudi government, under the leadership of the de facto ruler, Crown Prince Mohammed bin Salman, is expected to deliver is that Khashoggi’s death was the result of an unsanctioned rendition operation that went terribly wrong. Saudi officials are also expected to say that the individuals who undertook the operation were rogue agents and that those responsible would be punished.

Is President Trump Trying to Downgrade the Crime?

Khashoggi’s murder prompted many American lawmakers to speak out forcefully against the kingdom, threatening to fundamentally alter the US-Saudi relationship. Even President Donald Trump—who has been largely deferential to Riyadh’s domestic and regional policy decisions—spoke somewhat mutedly about “severe punishment” for those responsible prior to the Saudi government’s anticipated admission of responsibility. This notoriously transactional and easily persuadable president, however, will likely disappoint anyone who believes that Washington should punish Riyadh. Indeed, some observers and members of Congress have already expressed fear about the idea that by sending his top diplomat, Secretary of State Mike Pompeo, to Riyadh, President Trump is trying to help shape the Saudi narrative of events to relieve some of the pressure from the administration. Despite their public denials, there is plenty to suggest that Saudi officials, along with their allies in Turkey, may have constructed a metaphorical ladder to help President Trump climb down from any talk of punishment. From the beginning, the agreed-upon joint Turkish-Saudi investigation, along with Riyadh’s own domestic and supposedly independent investigation into the matter, had questionable integrity at best, and Trump’s “rogue killer” narrative had already made its way into public debate prior to Riyadh’s report.

President Trump will likely disappoint anyone who believes that Washington should punish Riyadh

This kind of statement from Riyadh is very problematic for those on Capitol Hill who want to see the Saudis pay for brazenly flouting international norms. A bipartisan group of lawmakers in both houses of Congress called for investigations and even possible sanctions on Saudi officials last week. Additionally, many cite efforts like those of Senator Bob Menendez (D-New Jersey) to block military sales to Saudi Arabia as another tool for punishing the kingdom for Khashoggi’s murder. While these seem like strong tools for lawmakers to use, they may prove to function much less effectively.

Can Congress Force the White House to Act?

As for legislative options, members of Congress from both chambers have invoked a provision in a 2016 law, known as the Magnitsky Act, to force the administration to conduct a four-month review that would determine whether Saudi officials engaged in gross human rights abuses (rendition and/or murder would meet the criteria). The review would also assess whether such acts would warrant imposing sanctions against those implicated in the findings. The United States, curiously, has not yet contributed to the investigation regarding Khashoggi, a legal US resident; rather, the administration was content with deferring to the Turkish and Saudi inquiries. It is noteworthy that these two states are known for unscrupulous investigative histories, such as Mohammed bin Salman’s anti-corruption shakedown or Turkish President Recep Tayyip Erdoğan’s continued actions against so-called Gulenists. Further, they both had plenty of incentives to delay or provide incomplete findings. These examples make it highly dubious that any powerful official in Riyadh would be implicated in the crime. With this likely outcome, the Trump Administration now has plenty of leeway to tell Congress that a diligent investigation was carried out and that there is no compelling reason to punish the Saudi government.

The United States, curiously, has not yet contributed to the investigation regarding Khashoggi, a legal US resident

Even if congressional critics are skeptical of the Saudi denial that this was an ordered assassination, the Trump Administration could still opt out of levying sanctions. The Magnitsky Act is based on shaky legal ground, according to some analysts; President Obama even said in his signing statement that his administration viewed the law as unconstitutional on the basis of usurping his Article II authorities. Would the GOP-held Congress consider suing the president to carry out its law? Even if it musters the political will to try such a move, the case could end up in the Supreme Court whose justices—now a 5-4 right-leaning majority—are traditionally much more deferential to presidential powers in conducting foreign affairs.

The holds like the one Menendez placed on likely Saudi weapons purchases are potentially even less effective. Ultimately a symbolic act, a hold, works based on bipartisan consensus that administrations respect the concerns of high-ranking members of Congress, in this case regarding weapons sales to Saudi Arabia. If Trump decides to issue the notifications required by law to contest the hold, as some in Washington suspect he would do, the president would initiate a 30-day review period in which Congress must opt to disapprove the sale.

If Trump were to send official notification in the near future, most of that 30-day debate period would overlap with both Senate and House recesses, during which lawmakers will be out of town campaigning for the midterm elections. Under this hypothetical scenario, members of Congress would have roughly two weeks after the elections to issue the required joint resolution of disapproval and gather the veto-proof majorities in both chambers. This would be a daunting task and it has never once been successful, especially during a two-week lame-duck period. It is crucial at this juncture to note that last March, the Senate was nearly successful in issuing a joint resolution disapproving of weapons sales to Saudi Arabia, but the outcome was still highly unlikely to reach veto-proof levels of support.

Congress Has Ways, but It Lacks the Will to Respond

These are the clearest illustrations of why the GOP-held Congress may not force the president’s hand. Members have neither the political will nor the fortitude to challenge the president. The Democrats simply do not have the votes to force the administration to alter its relationship with Saudi Arabia substantially. For Republicans, a political battle with the president who has completely taken over their party is unappealing. Recent remarks by some GOP senators—including influential leaders like John Thune (South Dakota)—amount to saying “we’ll wait and let the president take the lead on this.” In fact, a reporter for Congressional Quarterly, Rachel Oswald, cited Senator Thom Tillis (R-North Carolina) as saying that “he is inclined to defer to the judgment of the Trump administration on Saudi Arabia because ‘they have insights that go beyond my own classified insights.’” These and other Republicans’ words illustrate too well the extent to which GOP members of Congress will defer to Trump. He is popular among Republicans and has proven to be a master at branding; so even though the number of jobs produced by weapons sales—like those to Saudi Arabia—may be grossly misrepresented, hardly any Republican wants to stand up to a president who tells his base that jeopardizing his transactional relationship with Saudi Arabia threatens jobs and the economy.

With all of this in mind, there is a sliver of optimism that Congress will rein in the president when it comes to the US relationship with Saudi Arabia. Notable House and Senate critics of the Khashoggi affair include a number of Republicans and many of those, like Representatives Ed Royce (R-California) and Ted Yoho (R-Florida) and Senators Bob Corker (R-Tennessee), Marco Rubio (R-Florida), and Lindsey Graham (R-South Carolina) have taken a forceful position in favor of sanctioning the Saudi individuals responsible for Khashoggi’s death—as well as of barring weapons sales to Riyadh. More importantly, all of the aforementioned lawmakers are in powerful committee positions that would oversee the legislative efforts for sanctions and halting weapons sales. There is clearly an appetite among some Republicans for holding the Saudis responsible for Khashoggi’s assassination, alongside the near unanimous outrage by House and Senate Democrats; but what other tools are available to them to try and force the president’s hand on this issue?

The Magnitsky Act simply compels the administration to review sanctions, though not necessarily to impose them

As described earlier, the Magnitsky Act simply compels the administration to review sanctions, though not necessarily to impose them. New sanctions legislation is a possible—albeit a very unlikely—tool. Congress could also develop another joint resolution of disapproval to bar weapons sales. An additional way for lawmakers to exact a cost from the Saudi leadership is to invoke the War Powers Resolution and try to force the president to end the aid for Riyadh’s continuing war in Yemen. To be sure, Saudi Arabia’s disastrous intervention there would grind to a halt without US military and intelligence support. Indeed, Senator Bernie Sanders (I-Vermont) already said he would raise the issue again, just months after the first attempt failed by 10 votes to open debate on the topic in the upper chamber. Perhaps the Khashoggi catastrophe would prompt more senators to support the resolution, which is considered “privileged” according to procedural rules and can be fast-tracked for a vote in the Senate. However, this method presents the same problem as with the joint resolution for disapproval of arms sales. The Speaker of the House could choose to de-privilege joint resolutions in both of these situations and keep them from ever coming up for a vote. Without the speaker’s support, therefore, joint resolutions like one related to Yemen in 2017 die in committee, never receiving a vote.

What Now?

The most feasible scenario for those wishing to see Riyadh punished for its egregious kidnapping and murder of Khashoggi would be a Democratic takeover of at least one chamber of Congress. The House has been projected to flip, with most recent figures giving Democrats a chance to control 235 seats. Oddly enough, however, that would give the Democratic Party a slimmer majority (235-200) than the current Republican majority (235-193). This means that even if Democrats were unified in passing new sanctions legislation or joint resolutions, they would still need to recruit a good number of Republicans—in order to achieve a two-thirds supermajority—to protect their efforts from a likely presidential veto. The Senate is different because many Republicans in that chamber are incensed with Riyadh right now and there are hypothetical paths to garnering two-thirds support for a response. In 2019, however, outspoken GOP senators Corker and Jeff Flake (R-Arizona) would have retired and Republicans could increase their majority with senators more inclined to defer to the president on the issue.

Currently, there are a few ways Congress could force the president’s hand and, after the midterm elections when lawmakers will feel emboldened after knowing their fate, maybe a lame-duck session could result in surprising defections from President Trump’s position toward Saudi Arabia. As time passes and this story gets overshadowed by the next crisis, however, the new Congress might not feel the same sense of urgency and hostility toward Riyadh. Therefore, however confident many on Capitol Hill may feel about taking legislative action to force President Trump to adjust his position toward Saudi Arabia, it is not likely that too many GOP members of Congress will go toe-to-toe with him at this time, kicking the fight down the road and watching it lose steam. Congress could intervene, but as has been the case all too often, the political reality makes it doubtful that it will successfully force Trump’s hand.

Marcus Montgomery is a Junior Analyst at Arab Center Washington DC. To learn more about Marcus and read his previous publications click here