Trump is fighting two fights at once as he seeks to rationalize the Soleimani strike, particularly in casting it as a response to an imminent attack by Soleimani.
The first is legal. Trump’s decision to target a senior military leader of another country sits at the fault line between his power as president and Congress’s constitutionally determined role in declaring war. The Soleimani killing doesn’t neatly overlap with historical acts of war, for a number of immediately obvious reasons, pushing the decision into something of a gray zone legally. Experts tend to agree, though, that had the drone strike that killed the Iranian military commander been intended to prevent an imminent attack on the United States, Trump is on stronger legal ground.
“An imminent threat is what you would need to justify taking an action in self-defense,” Oona Hathaway, a former national security lawyer in the Defense Department’s Office of General Counsel, told The Washington Post’s Adam Taylor last week. Writing for the Atlantic, Hathaway explained that, under both the Constitution and international law, “the threat must be so extreme and imminent that it would be unreasonable to seek the necessary approvals before taking action to defend the country.”
As Taylor reported, though, the United States has in the past — including under President Barack Obama — argued that “imminent” doesn’t necessarily mean that an attack is looming.
“The absence of specific evidence of where an attack will take place or of the precise nature of an attack does not preclude a conclusion that an armed attack is imminent for purposes of the exercise of the right of self-defense,” then-State Department legal adviser Brian Egan said in April 2016.
That’s echoed in Secretary of State Mike Pompeo’s awkward Fox News interview on Thursday, in which he declared attacks to be imminent, though “we don’t know precisely when and we don’t know precisely where.”
The idea that an attack by Soleimani was imminent in the colloquial sense and necessitated the strike was undercut not only by Trump’s apparently unfounded assertions about possible attacks on four embassies but on new reporting from NBC News. That reporting indicates Trump authorized a strike on Soleimani in the middle of last year, predicating it on any attack that resulted in the death of an American. When an American defense contractor was killed near Kirkuk in late December, that line was crossed and the attack against Soleimani launched.
In other words, the post-hoc rationalization offered by the administration in the days after the drone strike that Soleimani posed an imminent threat (a rationalization not explicitly included in the original Defense Department statement) was almost certainly an evolved position and not a leading one.
The other reason that Trump would seek to present the Soleimani strike as a response to an imminent attack, of course, is political.
The administration declined to inform congressional leaders about the strike in advance, instead offering a fully classified explanation after the strike had been publicly acknowledged. This, too, has been presented as a decision rooted in the need to act quickly.
It’s in keeping, though, with the evolving relationship between the White House and Capitol Hill. In May, shortly before Trump reportedly authorized the killing of Soleimani, then-acting defense secretary Patrick Shanahan introduced new restrictions on the sharing of information with members of Congress. That change reflected concern about Congress’s ability to offer the same “degree of protection from unauthorized disclosure” as the information would see inside the Pentagon.
On Sunday, House Speaker Nancy Pelosi (D-Calif.) said the White House had offered a similar rationale in declining to keep leaders — Democrats in particular — informed before the Soleimani strike occurred. Pelosi was told the White House wanted to “keep it close,” she said on ABC News’s “This Week.”
“What you're saying is you don't trust the Congress of the United States with sources and methods and timing? That is wrong,” Pelosi said. Many members of Congress, including Republicans, had a similar reaction after a constrained administration briefing last week about the Soleimani strike.
It’s clear that Trump and many Republicans don’t think their political opponents are trustworthy — or, at least, that it’s useful to present them that way. As we reported last week, Republicans generally see Democrats as more unpatriotic than other Americans. That’s certainly reflected anecdotally on social media, where Trump’s decision to exclude Democratic leaders is often presented as justified by their purported untrustworthiness. (Trump reinforced this idea on Monday morning by retweeting an image of Pelosi and Senate Minority Leader Charles E. Schumer (D-N.Y.) dressed in clothing meant to suggest they were Muslim and referring to them as trying to “come to the Ayatollah’s rescue.”) Many of the leaks of information about the administration have, of course, come from the White House itself.
More broadly, the idea Soleimani was preparing imminent strikes against Americans has been embraced by Republicans as a rationale to defend Trump’s decision or to cast their opponents as sympathetic to Iran.
Several Republican senators introduced a resolution last week defending the strike. Its first line states Soleimani was killed “during the course of a targeted strike against terrorists engaged in planning imminent attacks against United States persons and personnel” and members of the military should be commended for the “commitment, perseverance, professionalism, and sacrifice they displayed in disrupting Qasem Soleimani’s planned imminent terrorist attacks.”
Republicans in Congress used the idea that attacks were imminent to assail Democrats.
“Despite the evidence that Soleimani was planning further, imminent attacks against Americans,” Rep. Bill Flores (R-Tex.) said, “House Democrats sided with the Iranians and once again put their political agenda ahead of the safety and security of our nation.”
“President Trump and Secretary Pompeo have both said that Soleimani was planning additional, imminent attacks,” Rep. Steve King (R-Iowa) said in a statement, “and I support President Trump’s bold decision to take him out. House Democrats might want to send the Iranians pallets of cash like President Appeaser-in-Chief Obama did, but I stand with letting President Trump, our Commander-in-Chief, make the tough calls and take the swift and certain actions that he determines are necessary to protect our nation, our citizens, and our interests from Iranian acts of hostility."
It’s a compelling idea, politically speaking: Soleimani stood poised to attack the United States — perhaps targeting four embassies! — but Trump acted quickly to prevent it. It’s just not supported by the available evidence. The Soleimani-led Quds Force was determined to have been responsible for the deaths of hundreds of Americans, and there’s seemingly little question that Soleimani would have liked to expand that toll. But killing Soleimani solely on the strength of that concern is legally questionable — and that’s not always the case Trump has been making.
Notice how these twin goals of winning legal and political fights leverage different senses of “imminent.” The administration has apparently embraced the broad sense of “could do damage” for legal purposes, but Trump demands the narrower “something about to happen” sense for his political aims. The resulting position is an awkward one for the White House, having to claim the Soleimani killing prevented imminent attacks even in the absence of public evidence supporting that idea — and at the same time arguing Soleimani posed an ongoing threat deserving of intervention.
Trump tried to navigate both those points in a tweet Monday morning, waving away the idea that an imminent attack was a necessary predicate for the strike — even while claiming that an attack was imminent.
The Fake News Media and their Democrat Partners are working hard to determine whether or not the future attack by terrorist Soleimani was “imminent” or not, & was my team in agreement. The answer to both is a strong YES., but it doesn’t really matter because of his horrible past!— Donald J. Trump (@realDonaldTrump) January 13, 2020
Evidence to that end has been lacking and may not exist. That brings additional complexity, since at least one prominent political actor has, in the past, argued that a president offering untrue information before taking military action was grounds for impeachment.
That was Trump himself, speaking about George W. Bush and the Iraq War in 2008.