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Democratic Sen. Sheldon Whitehouse said during a Senate Judiciary Committee hearing on Thursday that the president currently has the power to remove individuals from the Office of Foreign Asset Control’s (OFAC) sanctions list.
Whitehouse said that while the president “is highly unlikely to be able to undo the Magnitsky Act” – legislation passed in 2012 that imposed punishing sanctions and travel restrictions on high-level Russian officials – he does have the power to “remove people off the OFAC list.”
That list is officially known as the Specially Designated Nationals and Blocked Persons list.
“So the Veselnitskaya approach to the Trumps had a potential goal within reach that did not require the undoing of the Magnitsky Act,” Whitehouse said, referring to the meeting between a Russian lawyer and anti-Magnitsky lobbyist, Natalia Veselnitskaya, and Donald Trump Jr. at Trump Tower last June.
“We are looking at re-writing the Magnistky Act right now to close off that opportunity,” Whitehouse said, “and to make sure there is not this executive backdoor to delisting people” from the OFAC list who are already sanctioned under the Magnitsky Act.
A spokesperson for Whitehouse clarified later that the Senator was not looking to re-write the Magnitsky Act itself, but was examining whether the congressional review provision in the Russia sanctions bill that just passed the House would “encompass” those listed under the Act.
OFAC did not immediately responded to request for comment.
The Magnitsky Act currently stipulates that, if the president wants to remove someone from the list, he or she “shall provide the chairperson and ranking member” of the appropriate committees “with any information that contributed to the removal decision.”
The hearing’s sole witness, Bill Browder, told Business Insider after the session ended that there would likely be “enormous pushback” from the Treasury Department if the president tried to remove someone from the OFAC list.
But “in theory, it’s possible,” said Browder, a former hedge fund manager who spearheaded the passage of the Magnitsky Act after his tax lawyer Sergei Magnitsky died in a Russian prison in 2009.
Browder contends that Magnitsky was jailed and beaten to death after he uncovered a $230 million tax fraud scheme on behalf of Browder’s firm, Hermitage Capital, that implicated high-level Kremlin officials and Russian President Vladimir Putin himself.
Attempting to unilaterally lift sanctions on any individual “would put in legal jeopardy the entire US sanctions program across all countries and sectors because other sanctioned individuals could argue in court that the US sanctions are arbitrary and not based on law,” Browder said.
“I would imagine enormous pushback from the Treasury Department if that was ever contemplated,” he added.
Still, he said, “to be on the safe side, I’d like to see the Magnitsky law strengthened the way Sen. Whitehouse suggested to remove that loophole.”