Must the Trump Administration Report any Agreements Reached at Helsinki to Congress?

[Greg Fox is Professor of Law and Director of the Program for International Legal Studies, Wayne State University Law School.  He thanks Ashley Deeks and Brad Roth for their comments.]

Among the many confusing reports coming out of the Helsinki Summit on July 16 is the news that Presidents Trump and Putin reached a series of “agreements.”   Whatever these agreements may be, if indeed they exist at all, their defining aspect so far seems to be been their complete and total secrecy.  The two leaders made no announcement of any agreements in their now-infamous joint news conference.  The President seems to have kept even his closest advisers in the dark.  The Director of National Intelligence appeared not to know whether or what agreements were reached.  The Washington Post reported that “officials at the most senior levels across the U.S. military, scrambling since Monday to determine what Trump may have agreed to on national security issues in Helsinki, had little to no information Wednesday.”  As the New Yorker reported on July 19, “days after the Helsinki summit, Trump’s advisers have offered no information—literally zero—about any such agreements.”

President Trump hinted at possible subjects covered by the reported agreements when he tweeted a list of issues discussed with Putin: “terrorism, security for Israel, nuclear proliferation, cyber attacks, trade, Ukraine, Middle East peace, North Korea and more.”  On July 19, Steven Pifer of Brookings summarized the public official statements about agreements to date, all of which have come from Russian sources:

On Tuesday, the spokesperson for the Russian Ministry of Defense said “The Russian Defense Ministry is ready for practical implementation of the agreements in the sphere of international security.” On Wednesday, Russian Ambassador to the United States Anatoly Antonov said Helsinki produced “important verbal agreements.”

Today, Putin told Russian diplomats that his meeting with Trump was “successful overall and led to useful agreements.”

While it is quite common for international agreements to be negotiated in private, keeping the agreements themselves from public view is decidedly uncommon.  Indeed, international law in the Twentieth Century worked diligently to discourage secret agreements among nations, following on President Woodrow Wilson’s admonition in his Fourteen Points speech that treaties should be “open covenants of peace, openly arrived at.”  The League of Nations Covenant took an extraordinarily aggressive approach, declaring in Article 18 that treaties between member states would not become binding until registered with the League Secretariat.  The UN Charter also required states to register treaties with the Secretary-General but rather than deeming them invalid until registered, provided in Article 102 that unregistered treaties could not be invoked before any organ of the United Nations.  The most important of these organs was obviously the International Court of Justice.  Article 81 of the Vienna Convention on the Law of Treaties instructs that “treaties shall, after their entry into force, be transmitted to the Secretariat of the United Nations for registration or filing and recording, as the case may be, and for publication.”

In the United States, “treaties” must be given advice and consent by 2/3 of the Senate and so must obviously be made public during their approval process.  Congressional-Executive Agreements also become public via their approval by both houses of Congress.  But sole executive agreements, which involve neither house of Congress, might in theory only be seen by the Executive Branch officials who conclude them.

American history is replete with secret Executive Agreements, two prominent examples being the Yalta Agreement in 1945 and the settlement of the Cuban Missile Crisis in 1962.  But in 1970, after a Congressional investigation uncovered a number of secret basing agreements undertaken during the Vietnam War, Senator Clifford Case introduced legislation to require the Executive Branch to transmit all executive agreements to the Congress.  This bill was eventually enacted in 1972 as the Case-Zablocki Act (codified at 1 USC §112b).  Its central provision requires transmission of executive agreements to the Congress within 60 days of their entry into force for the United States:

The Secretary of State shall transmit to the Congress the text of any international agreement (including the text of any oral international agreement, which agreement shall be reduced to writing), other than a treaty, to which the United States is a party as soon as practicable after such agreement has entered into force with respect to the United States but in no event later than sixty days thereafter.

There is one statutory exception.  For an agreement “the immediate public disclosure of which would, in the opinion of the President, be prejudicial to the national security of the United States” transmittal occurs not to the full Congress but to the House and Senate Foreign Relations Committees only.

What constitutes an “international agreement” for purposes of the Case Act?  The statute itself is clear that both oral and written agreements are included.  The Code of Federal Regulations (22 CFR §181) lists a series of factors, each of which must be met in order for an agreement to qualify:

1. The parties must be states, the domestic agencies of a state, or an international organization and must intend to be legally bound by the agreement;

2. The agreement must be significant, a determination based, in part, on application of four additional elements, namely, that the agreement: have political significance, involve substantial grants of funds or credits, constitute a substantial commitment of funds extending beyond a fiscal year, and involve continuing and/or substantial cooperation in the conduct of a program or activity;

3. The agreement must be specific enough in the undertaking required of the parties as to be legally enforceable;

4. There must be at least two parties;

5. The agreement normally follows the customary form for international agreements.

[This summary of much lengthier language in the CFR is via the Congressional Research Service.]

Assuming Trump and Putin reached some sort of agreements in Helsinki, would they qualify for transmission under the Case Act?  That they were almost certainly oral would not be a disqualification.  Two of the CFR criteria would likely be met: the parties would be states (#1) and there would be at least two parties (#4).  Requirement #2 that the agreements be “significant” could possibly be met.  The regulations disqualify only “minor or trivial” agreements [22 CFR 181.2(a)(2)]. President Trump’s tweets and reporting surrounding the summit do not suggest that minor issues were discussed.  But it remains unclear whether there were any commitments or grants of funds, an important criterion for “significance” under 22 CFR 181.2(a)(2).

Whether the other criteria are met is unclear.  We have no information about elements 3 and 5 concerning the agreements’ specificity and form.  Perhaps most importantly, we don’t know whether Trump and Putin intended “to be legally bound” by the agreements (#1).  The Executive Branch concludes many purely political undertakings, the much-controverted Iran JCPOA being a recent example.  These political commitments are explicitly exempted from the Case Act (see 22 CFR §181.2(a) (“documents intended to have political or moral weight, but not intended to be legally binding, are not international agreements”).  The distinction between political and legally-binding agreements turns primarily on the parties’ intent.  President Putin, quoted above, said the two presidents had reached “agreements”, but it is unclear whether he was using the term colloquially or in a legal sense.

So we appear to be in a Catch-22.  In the interest of avoiding Executive Agreements about which Congress is unaware, the Case-Zablocki Act requires the transmission of all non-treaty “international agreements.”  But President Trump has been so secretive about the nature of his discussions in Helsinki that we – and presumably the Congress as well – lack enough information to know whether the two sides concluded any “international agreements” at the summit that might trigger those reporting requirements. Executive Branch secrecy, in other words, has thwarted use of a statute designed to thwart Executive Branch secrecy.

One might respond that Congress always finds itself in this position when the Executive Branch fails to act in good faith and transmit agreements meeting Case Act criteria.  Congress simply doesn’t know what it doesn’t know.  What is different in this case is that the normal Executive Branch mechanisms designed to ensure compliance in good faith have been stymied by the President’s evident refusal to share details of the Helsinki summit with even his closest advisers.  For example, the Case Act regulations provide that “[w]hether any undertaking, document, or set of documents constitutes or would constitute an international agreement within the meaning of the Act . . .  shall be determined by the Legal Adviser of the Department of State, a Deputy Legal Adviser, or in most cases the Assistant Legal Adviser for Treaty Affairs.” [22 CFR §181.3(a)].   But if the Secretary of State himself has not been briefed on the Helsinki discussions, this ordinary legal review cannot take place.  Of course, such self-policing by the Executive may fail for a whole variety of reasons in normal situations, including a willful refusal to comply.  But this case is so glaringly abnormal that the Case Act mechanisms cannot hope to function as intended.

A separate and somewhat technical question is when the Administration would be required to transmit any agreements.  The 60 day transmission window under the Case Act is triggered by an agreement’s entry into force for the United States. Assuming any Helsinki agreements were oral and did not speak to entry into force, one could look to the default rule in Article 24(2) of the Vienna Convention on the Law of Treaties, which provides that agreements lacking entry into force provisions will do so “as soon as consent to be bound by the treaty has been established for all the negotiating States.”  For any Helsinki agreements this could well mean immediately, though we obviously lack any information.  And the Vienna Convention rule would not be binding as such, since the Convention applies only to written agreements (Article 2(1)(a)).

In my view, despite this legal limbo, it is still quite important that Congress demand transmission of any and all agreements reached in Helsinki.  First, such a request should be much less controversial and risky than the current suggestion of compelling President Trump’s Russian interpreter to testify before Congress.  Second, and more importantly, Congress simply cannot engage in any meaningful oversight of US-Russian relations in general and the areas covered by the agreements in particular unless it knows what those agreements are. As the Congressional Research Service notes, “The primary tools available to Congress for its oversight of international agreements, especially international agreements other than treaties, start with the Case-Zablocki Act” [p. 209].  The Senate Report accompanying the Case Act declared, “if Congress is to meet its responsibilities in the formulation of foreign policy, no information is more crucial than the fact and content of agreements with foreign nations.” [S. Rept. No. 92-591, Transmittal of Executive Agreements to Congress, 92d Cong., 2d Sess. (Jan. 19, 1972)]. As with all areas of legislative oversight, the idea underlying the Case Act is that the quality of US international agreements will be improved through an open and fully-informed public discussion. As Senator Case put it in hearings on his bill:

The most important purpose of this legislation is to make the American people aware of what our international relationships are on a continuing basis, for two reasons. First, so that the public, where those arrangements are sound and the direction of policy is wise, can support it . . . . Second, so that the administration from time to time is checked in its efforts to do things that are unwise by the force of public opinion on a continuing basis [quoted in Ashley S. Deeks, A (Qualified) Defense of Secret Agreements, 49 Ariz. State L. J. 713, 775 n.273 (2017)]

Third, any answer the Congress receives to its request will be helpful in fulfilling that oversight function.  If the Administration answers that no agreements of any kind were reached or that the agreements it reached were only political commitments, Congress will know that US legal obligations toward Russia have not been altered.  If the Administration answers that the agreements were insignificant – perhaps only agreements to agree or to initiate discussions – then Congress can plan for ways to participate in or influence those future initiatives.  And if the Administration answers that publication of the agreements would harm the national security and transmission can only be made to the two Foreign Relations Committees, it will empower those committees to demand the text of the agreements and to hold hearings.

As Senator Case stated:

“even in the case of agreements which were classified, it would be possible for the appropriate committees to consider whether the President’s decision was sound.” [Deeks, supra, at n. 273]

There is no provision in the Case-Zablocki Act for Congress to compel transmission of agreements when the Executive Branch refuses to do so.   But Congress cannot begin to think creatively about enforcing its entitlement to see agreements unless it asks for them in the first place.