The Biden Administration Says Legal Immunity for Saudi Crown Prince Was Unavoidable. Privately, They Weren’t So Sure.

In mid-November, the Biden administration recommended to a U.S. judge that Saudi Crown Prince Mohammed bin Salman be granted immunity in a lawsuit over the murder of journalist Jamal Khashoggi. The White House immediately sought to distance itself from the decision, insisting that it was an administrative matter handled by the State Department, not the executive office. For its part, the State Department insists the ruling  was a consequence of legal precedent. It had nothing to do with the “merits of the case,” State Department spokesperson Vedant Patel said nearly a dozen times in a single press conference.

“This — again, not to sound like a broken record, but this has nothing to do with the merits of the case,” he said. “And this designation stems from the fact that [MBS] is a head of government, which is consistent, long-standing international law, and they have no bearings on the bilateral relationship, on our views of the relationship, and no bearings on the merits of the case as well.”

Given the deference that courts are supposed to show to the government in such cases, the ruling means that the judge is all but certain to dismiss the lawsuit, which seeks to hold the de facto Saudi ruler responsible for Khashoggi’s gruesome murder.

In the weeks before the decision, however, the White House’s National Security Council privately met with Democracy in the Arab World Now, or DAWN — an advocacy group founded by Khashoggi and a plaintiff in the lawsuit against MBS — expressly to discuss the immunity question.

The NSC, multiple DAWN staffers told The Intercept, went so far as to ask the group to write a memo making the argument for denying immunity — suggesting that White House officials were, along with State, weighing the merits of the case.

Two sources close to members of the Saudi royal family and administration confirmed to The Intercept that Saudi had asked that the Biden administration grant MBS immunity, a request first reported by the Wall Street Journal back in March. At the same time, the U.S. wanted the kingdom to turn up oil production.

In July, Judge John Bates asked the Biden administration for a formal determination on whether to grant Khashoggi the immunity typically reserved for heads of state in the lawsuit, bringing the issue to the fore as the Biden administration once again was planning a trip to the Gulf to request oil. MBS was then given the title of prime minister of Saudi Arabia in late September, a move that required a special exception to the kingdom’s basic law, which stipulates that only the king is prime minister.

In October, according to email correspondence between the NSC and DAWN, DAWN requested a meeting with the NSC to discuss “a few time-sensative [sic] updates for you about our lawsuit and Saudi Arabia.” The NSC agreed and indicated they “may be joined by colleagues from the NSC’s legal office and Middle East office.”

The October 17 meeting ultimately included three senior NSC officials, one of whom is a high-level intelligence official in the administration as well as a human rights official, according to the DAWN staffers, who requested anonymity to speak about a private meeting. The meeting culminated, the sources said, in the NSC requesting a memo from DAWN, which was subsequently emailed.

The request for sovereign immunity was a “ploy,” DAWN wrote, laying out a simple argument: Head of state immunity is typically reserved for a country’s leader, which in the case of Saudi Arabia is its king, Salman bin Abdulaziz Al Saud — MBS’s father. King Salman, senior to Crown Prince Mohammed, is head of state. There can’t be two heads of state.

Adrienne Watson, the spokesperson for the National Security Council, confirmed that NSC staff met with staff of DAWN. “Meeting with human rights NGOs is standard practice under the Biden Administration and such meetings occur on a regular basis,” Watson said in an email to The Intercept. “At no time did NSC staff solicit advice on immunity, a legal question that was before the State Department.”

But the sources said that in the meeting, the NSC appeared divided on the question.

The NSC “was sympathetic” and said they thought DAWN’s case “was strongly argued,” said one person knowledgeable about the meeting.

“They were pushing many of [DAWN’s] arguments but in the end, Brett McGurk won the day,” said another, referring to Biden’s Middle East envoy.

Past reporting hints at a split within the NSC, a White House agency staffed with Cabinet officials and senior national security advisers, over Middle East policy. Many see McGurk as too soft on the Saudis. McGurk has been a reliable proponent of warm relations with Saudi Arabia under every presidential administration going back to that of George W. Bush.

The immunity designation drew swift condemnation from many, including even top Democrats on the Senate Foreign Relations Committee. Bruce Riedel, a senior fellow at the Brookings Institution, called it “a denial of justice to appease a reckless and dangerous murderer.”

Immunity was something even the Trump administration was not willing to grant to MBS. Though former President Donald Trump was much friendlier with the Saudis, his administration declined to do so in a lawsuit filed against MBS by a former top Saudi counterterrorism official, Saad al Jabri, who accused him of sending a hit team to assassinate him in 2018.

The Biden administration’s insistence that it is merely adhering to legal precedent also elides the fact that the administration has discretion in who it recognizes as a head of state.

A recent State Department press conference made this clear. When a member of the press asked if the administration recognized Venezuelan President Nicolás Maduro, Patel, the spokesperson, replied that “We do not” recognize Maduro as the head of state of Venezuela. Trump withdrew that designation and recognized opposition figure Juan Guaidó as Venezuela’s president in 2019, and the Biden administration has followed suit — though last week the U.S. lifted sanctions on Venezuela to permit oil exports.

“So Bashar Assad would get the similar immunity?” the journalist also asked, referring to Syria’s president, who has presided over countless atrocities during the Syrian civil war.

“I suspect not,” replied Patel.