December 2023 – Page 3 – USA Gov Policy

In our first article on the Second Federal Indictment of former President Donald Trump (the “January 6” indictment, as opposed to the “Classified Documents at Mar A Lago” indictment), we discussed whether or not Double Jeopardy would apply, given that the Senate already acquitted Trump for substantially similar charges. (Frank – please add link to first article here) In our second, we discussed the impossibility of establishing that Donald Trump had a “guilty mind” when he asserted that he had not lost the 2020 Presidential Election. (Frank – please add link to second article here)

Today we review an allegation made in the January 6 indictment that may be just as hard to prove as whether or not Donald Trump truly believed he was fraudulently deprived of his office; The use of alternative electors.

Under Article II of the Constitution of the United States, the method for choosing the President and Vice-President of the United States is described in detail; “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors,” Section 1 states. “The Electors shall meet in their respective States, and vote by Ballot for two Persons…they shall make a List of all the Persons voted for, and of the Number of Votes for each; which List they shall sign and certify, and transmit sealed to the Seat of the Government of the United States, directed to the President of the Senate. The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted. The Person having the greatest Number of Votes shall be the President.”

The original Article II called for the Electors to vote for two people, with the intention that the one with the most votes would become President, and the second place finisher Vice-President. However, as described by the National Constitution Center, “The most glaring early bugs in the system—the real possibility of ties (and) the fact that the president and vice-president could represent different political parties as had happened when Adams and Jefferson served together in 1796—were ironed out by the Twelfth Amendment in 1804.”

Under the Twelfth Amendment, “The Electors…shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each.” There then follows a complicated series of rules for resolving tied votes, including directing that “if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President.”

This “Electoral College” is described by Darrell West in an article for the Brookings Institute; “The framers of the Constitution set up the Electoral College for a number of different reasons. According to Alexander Hamilton in Federalist Paper Number 68, the body was a compromise at the Constitutional Convention in Philadelphia between large and small states. Many of the latter worried that states such as Massachusetts, New York, Pennsylvania, and Virginia would dominate the presidency so they devised an institution where each state had Electoral College votes in proportion to the number of its senators and House members. The former advantaged small states since each state had two senators regardless of its size, while the latter aided large states because the number of House members was based on the state’s population.”

While West himself believes that the Electoral College has outlived its usefulness and should be abolished, he admits that “there are clear partisan divisions in these sentiments. In 2000, while the presidential election outcome was still being litigated, a Gallup survey reported that 73 percent of Democratic respondents supported a constitutional amendment to abolish the Electoral College and move to direct popular voting, but only 46 percent of Republican respondents supported that view. This gap has since widened as after the 2016 election, 81 percent of Democrats and 19 percent of Republicans affirmatively answered the same question.”

Judge John Wilson (ret.) served on the bench in NYC

The Report Concludes Tomorrow

At a remote site in China’s Gobi Desert, at the Jiuquan Satellite Launch Center (中国酒泉卫星发射中心), a Hyperbola-2 rocket successfully entered suborbital space on November 2. The test of the methalox engine and its landing capabilities was hailed as a significant achievement toward Beijing’s space program goal of developing reusable medium-lift rocket technology. The country’s space industry startups that contribute to the Military-Civilian Fusion program are closely linked to the government in Beijing. Xi Jinping and the CCP are striving to replicate the success of American companies such as SpaceX but devoid of the corporate competition found in the United States.

China has effectively grown its commercial space industry under tight state control. Unlike the US space program’s public-private partnership, on paper China’s “private” space startups and its state-owned enterprises (SOE’s) exist alongside each other in a highly synergistic relationship with the government. In reality, the “private” companies typically fill niche requirements in specialized technologies due to limited budgets, while the SOE’s have generous state backing.

Since China entered the domain with its 1992 launch of the Shenzhou (Divine Craft), it has proven to be an emerging “innovation power”, according to David Lin and Katherine Kurata of the Jamestown Foundation. Although Chinese spaceports and other launch centers are controlled by the military with priority to military missions, the country is also reshaping the future landscape of commercial space operations and leadership.

The November launch marked a strategic change in the global space race. “Yet amidst an increasingly congested orbital environment, it is clear that the future trajectory of space exploration hinges not solely on innovation itself, but specifically on the capacity for nations to effectively combine government direction with commercial dynamism,” says Lin and Kurata. The US and China are in a race to balance public and private sector contributions to become the future “point of the spear” in space. US private firms, such as Space X, Blue Origin, and the Artemis program are reviving public interest in space and pioneering reusable rocket technology at great cost savings. NASA says that they must be built upon to ensure America’s continuing leadership. These are commercial ventures.

Beijing’s 2014 Document 60 policy is reshaping how the public and private sector work together in China. The CCP leadership is setting ambitious goals and included them in the State Council’s White Papers on Space Activities, the 2015-2025 National Medium-to-Long-Term Civilian Space Infrastructure Development Plan, and the 2019 Industry Catalog Encouraging Foreign Investment, according to Lin and Kurata. China recognizes space as a “strategic emerging industry.” It’s Space Information Corridor and the Beidou Satellite Navigation System are creating new opportunities for the commercial sector. Starting in 2019, however, companies were required to obtain permits from the People’s Liberation Army to access launch sites.

The Chinese model calls for differentiated competition. Beijing wants to attract private space companies to encourage innovation and financial investment, but within strict state-set rules in keeping with Xi Jinping’s 2017 Military-Civilian Fusion agenda that coordinates construction of space infrastructure that meets both military and civilian needs. Many of the “private” firms are run by former military officials or have other intricate governmental ties.

“In the United States, NASA pioneers new frontiers while the Pentagon cultivates symbiotic partnerships with private contractors and startups. Although heavily government-reliant, this ecosystem enables visionary pursuits. In contrast, behind China’s rhetoric of military-civil fusion lies a tangled web of public and private cooperation activated only when mutual interests converge. Rather than operating autonomously as disruptive innovators, China’s private space firms mostly act as an extension of state interests,” says Lin and Korata. China excels at a rigid implementation of its space program while the US is more agile and innovative. Analysts in Washington suggest that too often the West overlooks it effectiveness and the linkage between China’s military and civilian sectors.

The Department of Defense views China’s civilian space program from a different perspective than Beijing. Washington recently published its annual “Military and Security Developments Involving China” report that provides a review of China’s military developments, including the space domain. The Pentagon analyzes China’s rapid expansion of its nuclear weapons program calling Beijing’s military buildup the biggest and fastest of any country since WWII, and possibly the fastest in human history. China is not only doubling the number of its nuclear warheads by 2030 but also increasing their accuracy and effectiveness.

China’s 2^nd Artillery Rocket Force (responsible for nuclear weapons operations) maintains several thousand miles of underground tunnels which potentially could be used to hide nuclear weapons. The stakes are immense. Supremacy in space, as stated by Xi Jinping, calls for his country to reach “commanding heights” and establish itself as the foremost “space power” by 2045. The West cannot overlook that Xi Jinping’s vision is for China to be supreme in space as part of its “national rejuvenation.” Its commercial space program cannot be disengaged from its military ambitions. China’s dominance in space encompasses cutting edge technologies and calls for unmatched weapons deployment, according to the Pentagon. The launch of the Soviet Union’s Sputnik challenged the world order in 1957. China’s Military-Civilian Fusion program may portend a much greater rivalry between the United States and China; one with global consequences for humanity.

Daria Novak served in the U.S. State Dept.

Photo: China Space Program

Quick Analysis

Ukraine’s Frozen Conflict

As we approach winter in the northern hemisphere, the war in Ukraine is beginning to resemble a “frozen conflict” from many perspectives. Ukrainian President Volodymyr Zelensky recently told the media he hopes the war will end faster once President-elect Trump takes over in January. Opinions in Moscow, however, differ from that of the Ukrainian leader. Russian President Vladimir Putin argues that the North Atlantic Treaty Organization (NATO) needs to exclude Ukraine from joining in “exchange” for peace. If it does not, he says, then no end to the war is in sight. So far there is no Christmas solution. Several NATO countries, according to Vladimir Socor of the Jamestown Foundation, are tentatively considering “coalitions-of-the-willing” to provide security for Ukraine outside of the formal NATO framework. There is, however, no collective mechanism today under which such an arrangement is viable. According to the NATO Charter, while Ukraine is a NATO partner country, it may not join as a full member since it has not fulfilled the requirements for membership. That has not stopped NATO and allies from continuing “to provide Ukraine with unprecedented levels of support, helping to uphold its fundamental right to self-defence,” according to the organization. Socor says that keeping Ukraine out of NATO will not advance peace with Russia. Waiting for a peace settlement, he suggests, would only serve to encourage Moscow to continue the war indefinitely. Although the Biden Administration officially withdrew its support for Ukrainian membership in 2021, NATO maintains an “open door” policy toward membership-seeking countries. The current White House position led the way for European states to oppose Ukraine’s membership saying that a decision should be delayed until “conditions are met.” Biden pushed for changing “open door” to a “bridge” metaphor. It is not intended as an across-the-board NATO policy and has been implemented in the past on a case-by-case basis, says Socor. “The alliance’s open-door policy was not fully insulated from Russia’s non-statutory blocking power, and NATO-aspirant countries’ path toward membership was not always irreversible.” Russia has successfully blocked states like Georgia from joining, first in 2008 and again after the war in Ukraine began in 2014. Russia recognizes the value add of Ukraine to NATO is enormous and that Kyiv has a better case than some other nations. Putin’s invasion was, in part, intended to foreclose that option. By 2021, Moscow was pushing hard to maximize its war objectives, which included further annexations of Ukrainian territory. A main goal for Putin was, and is, to ensure there is no Ukraine left to join NATO. As President-elect Trump prepares to assume office in January, he is faced with the historical challenges presented by the war. Post-conflict security guarantees were the center of several proposals made during the 2023 military stalemate. The incoming Trump Administration has yet to outline how it intends to handle the Russia-Ukraine war. Analysts in Washington believe that the new Administration will expect its European allies to guarantee the majority of Ukraine’s security needs. As we approach 2025, several European nations have acknowledged that they do not view Ukraine as eligible for NATO membership as it would draw the organization into the middle of the conflict. Others want to wait until the war is over or pending a “peace” settlement before considering Ukrainian membership. Socor reports that some “influential voices” are suggesting that “Kyiv should join NATO after “freezing” the war along a stable armistice line, de facto accepting Ukraine’s partition, with NATO security guarantees applying de jure to the government-controlled territory only.” This would mean starting accession talks soon with the actual talks to commence only after a ceasefire is in place. Trump arrives in Washington at a time when Putin’s hybrid strategies of war in Ukraine have eviscerated commonly-held differences between war and peace. “Absent a political consensus in NATO over Ukrainian membership, certain European allies, including France’s President Emmanuel Macron, are holding informal consultations about post-conflict security guarantees to Kyiv by NATO members outside of NATO’s framework,” according to the Jamestown Foundation. The Biden Administration downplayed the discussions on possible forms of military assistance and defense industry cooperation by sending only an Assistant Secretary of State. For a European peace to hold the Trump Administration would need to formally extend the United States’ nuclear deterrence to Ukraine. Options under discussion in Europe include a “coalition of the resolute” to deploy forces to Ukraine as part of a possible armistice package, deterring further Russian attacks, says Secor. European officials are also debating, without any agreement, whether its military forces could perform non-combat logistical roles to free Ukrainian forces to fight. None of the possible courses of action has moved forward as all eyes are waiting on the incoming Trump Administration for clues about its intended level of support for a NATO framework and other non-NATO proposals. Daria Novak served in the U.S. State Dept.