OPINION:
Based on my five decades of transactional legal practice, I have opposed President Trump’s entering into an agreement with the Iranian mullahs. I have done so on the theory that the parties to an agreement are more important than its actual provisions.
If a party is untrustworthy, then no contract can provide an assurance of compliance with its provisions.
The Iranian regime has, by its conduct over 47 years, demonstrated that it is not likely to honor any agreement it signs.
Someone as savvy as Mr. Trump, with his extensive transactional experience and his army of brilliant attorneys, should have ensured that any agreement he signed was carefully drafted to avoid ambiguity and provide clear guidelines.
Even a skillfully drafted contract cannot ensure compliance by a malign actor.
Although I worried that the president might choose to enter into an agreement with Iran despite all the warning signs, I could not have expected that he would sign a document that would also fail the test of good draftsmanship.
Yet, based on my reading of the bilateral document signed at Versailles (misleadingly called a memorandum of understanding, when it is, in large part, a fully binding agreement), I am forced to conclude that Mr. Trump not only entered into a deal with an undeniably untrustworthy party but also signed a poorly drafted document.
The second sentence of the first paragraph of the memorandum is a prime example of poor contract drafting. It provides that the parties “undertake from now on not to initiate any war or any military operation against each other and to refrain from the threat or use of force against each other and ensuring the territorial integrity and sovereignty of Lebanon.”
Beyond the grammatical errors evident in the sentence and its run-on quality, the unqualified, categoric and interminable renunciation of military operations cannot possibly be what the president intended. Indeed, recent actions near the Strait of Hormuz indicate that neither party intended this.
From its unqualified statement, forever eschewing military action, the run-on sentence continues, without any transition, to offer a simplistic, absolute assurance of Lebanon’s territorial integrity. Furthermore, there is no definition of “territorial integrity.”
Hezbollah’s presence and use of Lebanon as a launching pad for attacks on Israel are never even mentioned — and, shockingly, the relevant parties to the Lebanon conflict are neither parties nor even witnesses to the memorandum of understanding.
The memorandum repeatedly uses the word “deal,” a term I would never allow an associate to use in a contract because of its informality and imprecision.
“The permanent termination of the war” (the war declared terminated as of the signing of the memorandum of understanding in the first paragraph), as well as innumerable other benchmarks, is deferred until the “final deal.” Did it not occur to those who drafted the memorandum that this deferral of actions until a “final deal” might be in direct contradiction with the prior statement — that all military operations are fully banned as of the signing of the memorandum of understanding?
Above all, there is no indication of what constitutes a “final deal.”
In paragraph five, the U.S. agrees that it will “begin the removal” of “any disturbances or impediments against the Islamic Republic of Iran.”
Missing is a definition of “disturbances or impediments,” and, because any military action taken by the U.S. (or Israel, for that matter) undoubtedly falls within this broad concept, the recent American actions in Iran can already be deemed a breach of U.S. obligations.
Simply stated, the memorandum of understanding is an amalgam of imprecision, contradictions and incoherence. Terms are bandied about with abandon and without definition, ambiguities abound, and provisions are seemingly incorporated at random, without necessary cross-references.
Between the failure of the Iranian regime to honor its prior undertakings and the incoherence of the memorandum of understanding, there must be little doubt that the agreement will not bring a satisfactory end to the conflict between the United States and Iran.
The memorandum of understanding is simply an illusion, and a dangerous one at that.
Although Mr. Trump must take responsibility for having entered into such an incoherent document, his senior advisers — including Jared Kushner, Steve Witkoff and especially those with legal training — should feel some remorse for having participated in the deal’s drafting and for allowing the president to sign it.
• Gerard Leval is a partner in the Washington office of a national law firm. His book, “Lobbying for Equality: Jacques Godard and the Struggle for Jewish Civil Rights During the French Revolution,” was published by HUC Press in 2022.
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