It’s That Time Again: Is Trump Headed for Another Iran Deal Certification Crisis?

The public has focused on the current wave of protests in Iran and how it might embolden President Donald Trump to fulfill his promise to walk away from the Iran nuclear agreement, officially known as the Joint Comprehensive Plan of Action (JCPOA). While disparaging the JCPOA and lambasting the Iranian regime, Trump’s recent tweets did not announce any concrete plans to withdraw from the agreement. But the fate of the JCPOA will soon be determined. Upcoming statutory deadlines, listed below, will compel the president to decide whether or not to continue implementing key U.S. obligations in the agreement. The deadlines concern two separate requirements: the certification requirement under the Iran Nuclear Agreement Review Act (INARA), and, more importantly, statutory sanctions waivers extensions. Those deadlines have prompted discussions between administration officials and Congress that seem to be aimed at preserving, rather than gutting, the agreement.

INARA Certification

As I explained in previous posts, INARA requires the president to certify to Congress every 90 days that Iran is in compliance with the JCPOA, and that it remains in the U.S. interest to suspend sanctions as part of its implementation. In an Oct. 13, 2017 statement rolling out his Iran strategy President Trump announced that he would not certify that Iran was in compliance with the JCPOA by an Oct. 15 deadline.

This announcement did not affect the implementation of the U.S. sanctions-related commitments under the JCPOA. For that to happen, either Congress or the president would need to move to reimpose nuclear sanctions. Congress could reimpose sanctions under expedited procedures provided for in INARA within 60 calendar days of the certification deadline. It could also impose nuclear sanctions through the ordinary legislative process. Congress has yet to do either. The president, on his part, could reimpose certain sanctions pursuant to executive orders, decline to exercise sanctions waivers included in a number of statutes imposing nuclear sanctions against Iran that were lifted under the JCPOA, or trigger the JCPOA sanctions snapback mechanism. Trump, too, has yet to pursue any of those options, tough rhetoric notwithstanding.

Counting 90 days from the last deadline puts the next INARA certification deadline on Jan. 13. According to reports, Trump will again decline to certify that Iran is in compliance with the JCPOA and that sanctions suspension remains in the U.S. interest. If that is all he does, and Congress continues to sit on the sidelines, U.S. sanctions lifted under the JCPOA will remain suspended. I should note that §2160e[e] of INARA is not entirely clear as to whether a second so-called “de-certification” would reset the INARA 60-day clock, that is, the timeframe during which Congress would be able to reimpose nuclear sanctions through INARA expedited procedures. Even if expedited procedures would not be available, however, Congress could always impose nuclear sanctions using ordinary legislative procedures if it so chooses.

Statutory Sanctions Waivers

The statutory sanctions-waiver deadlines pose a greater threat to the JCPOA. As part of the implementation of the JCPOA, the Obama administration suspended Iran nuclear sanctions provided for in four statutes by exercising the waiver authorities those statutes granted to the president. The waivers need to be renewed from time to time. So far, Trump has renewed the waivers, keeping a range of statutory nuclear sanctions against Iran lifted under the JCPOA suspended. However, statutory waiver renewal deadlines are coming up again over the next few weeks. According to the Congressional Research Service, the deadlines are as follows:

● Jan. 10: Sections 212-213 of the Iran Threat Reduction and Syria Human Rights Act

● Jan. 10: Sections 1244-1247 of the Iran Freedom and Counter Proliferation Act

● Jan. 11: Section 1245(d) of the National Defense Authorization Act for FY 2012, also known as the Kirk-Menendez Amendment

● Jan. 17: Section 4(c)(1)(A) of the Iran Sanctions Act (as amended)

Unlike the certification issue, if Trump decides not to extend the sanctions waivers, he would terminate the implementation of core U.S. commitments under the JCPOA. In addition to ending the suspension of statutory sanctions, he could reimpose other sanctions unilaterally. The president could reissue executive orders that President Obama rescinded when implementing the JCPOA. He could also redesignate Iranian persons and entities that were removed from the Specially Designated Nationals (SDN) list, the Foreign Sanctions Evaders list (FSE), or the Non-SDN Iran Sanctions Act List (NS-ISA) (maintained by Treasury’s Office of Foreign Asset Control). It would then be up to Iran and the other parties to the agreement, the P5+1 and the EU, to decide how to move forward.

If past decisions are any indication, the administration, if not the president, does not seem eager to blow up the JCPOA. In the previous round in October, Trump left it to Congress to reimpose nuclear sanctions and “fix” the JCPOA’s flaws even though he could reimpose sanctions on his own. Moreover, the administration took little action while a legislative effort to augment the JCPOA–led by Sen. Bob Corker, the chairman of the Senate Foreign Relations Committee, and Sen. Tom Cotton, fizzled in Congress. Still, circumstances are different now in light of the political unrest in Iran. And it is safe to assume that Trump would find it difficult to sustain yet again an agreement he abhors.

A Possible Path Forward

There may, however, be a way to reconcile a desire to take tough action against Iran with preserving the JCPOA. The administration could impose sanctions based on Iran’s behavior outside the nuclear context. As I explained before, additional sanctions over human rights violations, terrorism, meddling in Syria and elsewhere, and Iran’s ballistic missile program would be consistent with the JCPOA. There are signs that the administration may choose this course of action: On Jan. 4 the administration designated five entities in connection with Iran’s ballistic missile program. According to Treasury Secretary Steven Mnuchin, more non-nuclear sanctions will follow:

The United States will continue to decisively counter the Iranian regime's malign activity, including additional sanctions targeting human rights abuses. We will not hesitate to call out the regime's economic mismanagement, and diversion of significant resources to fund threatening missile systems at the expense of its citizenry.

Similarly, Secretary of State Rex Tillerson said in interviews with CNN and the Associated Press on Friday that more non-nuclear sanctions “will be coming.” He also said that the administration is currently working with Congress on a “fix” that would allow the U.S. to continue implementing the JCPOA. Such a fix, according to the AP, would not add nuclear sanctions. Tillerson implied that Trump would renew the sanctions waivers if Congress promised prompt action on Iran. Interestingly, it appears that one of the legislative options under consideration is amending INARA to remove or alter the requirement that the president certify Iran’s compliance every three months. All of this suggests that members of the administration and lawmakers are attempting to reach a solution that would appease Trump, preserve the JCPOA, and protect it from an INARA certification deadline-induced crisis every three months due to the president’s reluctance to express any approval of the nuclear deal.