My colleague Philip Zelikow has written a thoughtful response to my recent post on this site. I endorse much of what he says. In that post, I had made two arguments. First, as a matter of statutory authority, President Biden does not currently have the legal power to confiscate any of the already frozen Russian assets, state or private, for the purpose of funding Ukrainian defense and reconstruction, without going through normal judicial processes. Second, any future legislation to authorize the selling off of these assets must overcome certain constitutional and international legal hurdles. Since I wrote that post, the President has asked Congress for legislation that will expedite the forfeiture of privately-owned frozen assets but has not indicated any immediate plans to dispose of state property, particularly the hundreds of billions of dollars deposited by Russia’s Central Bank in U.S. accounts. Zelikow focuses on the international legal issues surrounding the confiscation of these bank accounts and sees fewer problems than I do. He also argues that current domestic law might give the president all the authority he needs to transfer these assets to an international fund established to compensate Ukraine for its war injuries.
Paul B. Stephan, Response to Philip Zelikow: Confiscating Russian Assets and the Law, Lawfare (May 13, 2022).