Now is the perfect time for Biden to transfer Russia’s frozen assets to Ukraine

The horrific events in the Middle East have repercussions that go beyond Israel and the possibility of a lengthy war with unimaginable bloodshed. They also have an enormous impact on today’s other grisly international conflict, the Russian invasion of Ukraine.

As the U.S. rushes vital military aid to the Israelis, there lurks a challenge in Congress for the continuing resupply of vital armaments to Ukraine. On Tuesday, Sen. Josh Hawley (R-Mo.) shamelessly used the crisis in Israel and Gaza to advance a pro-Russia agenda, calling for Ukraine funding to be diverted to Israel.

Meanwhile, President Biden has a tool that could bridge the immediate House crisis in stalled Ukraine funding.

Before he was dethroned last week, former House Speaker Kevin McCarthy stripped a $24 billion Ukraine aid package from the continuing resolution that is temporarily keeping the government running. Michael McCord, the Pentagon’s Chief Financial Officer, says that only $5 billion — two months of arms spending — remains in the pipeline.

The House is now in limbo, with no Speaker. Although Rep. Steve Scalise (R-La.), reportedly the Republican nominee for the post, has supported Ukraine aid in the past, you can be sure that his party’s isolationist “MAGA” fringe, in exchange for their votes for him as Speaker, will seek to turn his previous concerns into opposition.

What to do? There is a clear, legally sound, practical and moral option: Biden should transfer to Ukraine Russia’s frozen sovereign assets — perhaps $20 to $35 billion — being held in our country.

Doing so would have an enormous advantage beyond the obvious. It would set the example for our European allies who may well be waiting to follow our lead. They hold far larger reserves of Russian wealth in their countries, apparently in excess of $200 billion.

The fall of Ukraine would be a debacle for the U.S. Putin has said that the “greatest geopolitical catastrophe” of the 20th century was the end of the Soviet Union. His nationalist-expansionist view tells us that his ambition will not end with Ukraine if he conquers it. Under Article 5 of the NATO treaty, an attack on any member of NATO obligates other member states to enter the war. Ensuring the funding of Ukraine’s self-defense is cost-efficient “America First” foreign policy.

Russia will assert that transferring its sovereign assets would violate international law. Our best scholars have the answer.

As Harvard constitutional law professor Laurence Tribe told the New York Times in September, “There is simply no basis [under international law] for saying Russia can violate Ukraine’s sovereignty while invoking its own sovereignty as an inviolable shield.”

In fact, Tribe and colleagues at the Kaplan, Hecker law firm have written a 123-page report laying out the legal basis for Biden to act.

At the center of this plan is the International Emergency Economic Powers Act (IEEPA). In it, Congress delegated to the president the authority to declare an international emergency with respect to “any unusual and extraordinary threat [from]…outside the United States to the national security, foreign policy, or economy of the United States.”

When Russia invaded Ukraine in February 2022, Biden “expand[ed] the scope” of President Obama’s emergency declaration under the IEEPA from when Russia had seized Crimea in 2014.

Accordingly, the law grants the president authority to “transfer…any right…to any property in which any foreign country [subject to the emergency declaration]…has any interest with respect to any property…[in] the United States.

There is a precedent under the IEEPA for a president conveying the full ownership of a foreign nation’s frozen assets within the U.S. to a new owner. In 1992, after Iraq’s Saddam Hussein invaded Kuwait, President George H.W. Bush froze $30 billion in Iraqi assets in the U.S. He later had them transferred to the United Nations Compensation Commission to go to victims of Iraqi aggression.

Beyond legal authority and precedent, the moral imperative for transferring Russia’s funds in the U.S. to Ukraine is compelling. It is particularly just to give the invader’s frozen assets to the nation attempting to defend itself. Biden can simultaneously protect our national security, enhance world stability and burnish America’s image by helping a victim of aggression resist an aggressor with the invader’s own resources.

He should do it now. A crisis is a terrible thing to waste.

Norm Ornstein is an emeritus scholar at the American Enterprise Institute. Dennis Aftergut is a former federal prosecutor, currently of counsel to Lawyers Defending American Democracy.