Author: Frank V. Vernuccio, Jr.

The Final Report of the Congressional Commission on the Strategic Posture of the United States

As 2023 drew to a close, the dramatically deteriorating national security picture for the United States and its allies prompted a review of “America’s Strategic Posture.” A committee chaired by Madelyn Creedon and Jon Kyl issued a sobering analysis. We present a summary of this vital analysis.

The militarily troubling and increasingly aggressive behaviors of Russia and China over the past decade led Congress to direct a review of the strategic posture of the United States, including nuclear weapons policy, strategy, and force structure.

China’s rapid military build-up, including the unprecedented growth of its nuclear forces, Russia’s diversification and expansion of its theater-based nuclear systems, the invasion of Ukraine in 2014 and subsequent full-scale invasion in February 2022, have all fundamentally altered the geopolitical landscape. As a result of China’s and Russia’s growing competition with the United States and its Allies and partners, and the increasing risk of military conflict with one or both, as well as concerns about whether the United States would be prepared to deter two nuclear peers, Congress determined it was time for a new look at U.S. strategic policy, strategy, and force structure.

The new global environment is fundamentally different than anything experienced in the past, even in the darkest days of the Cold War. Today the United States is on the cusp of having not one, but two nuclear peer adversaries, each with ambitions to change the international status quo, by force, if necessary: a situation which the United States did not anticipate and for which it is not prepared. While the risk of a major nuclear conflict remains low, the risk of military conflict with either or both Russia and China, while not inevitable, has grown, and with it the risk of nuclear use, possibly against the U.S. homeland.

The United States faces a strategic challenge requiring urgent action. Given current threat trajectories, our nation will soon encounter a fundamentally different global setting than it has ever experienced: we will face a world where two nations possess nuclear arsenals on par with our own. In addition, the risk of conflict with these two nuclear peers is increasing. It is an existential challenge for which the United States is ill-prepared, unless its leaders make decisions now to adjust the U.S. strategic posture.

America’s defense strategy and strategic posture must change in order to properly defend its vital interests and improve strategic stability with China and Russia. Decisions need to be made now in order for the nation to be prepared to address the threats from these two nucleararmed adversaries arising during the 2027-2035 timeframe. Moreover, these threats are such that the United States and its Allies and partners must be ready to deter and defeat both adversaries simultaneously.

The evidence demonstrates that the U.S.-led international order and the values it upholds are at risk from the Chinese and Russian authoritarian regimes. The risk of military conflict with those major powers has grown and carries the potential for nuclear war. Therefore, the Commission reached the unanimous, non-partisan conclusion that today’s strategic outlook requires an urgent national focus and a series of concerted actions not currently planned. In sum, we find that the United States lacks a comprehensive strategy to address the looming twonuclear-peer threat environment and lacks the force structure such a strategy will require.

In reaching that overall conclusion, we make clear that the fundamentals of America’s deterrence strategy remain sound, but the application of that strategy must change to address the 2027-2035 threat environment. Those changes drive necessary adjustments to the posture of U.S. nuclear capabilities – in size and/or composition. A full spectrum of non-nuclear capabilities is also essential to the nation’s strategic posture. Such adjustments, in turn, drive the need to strengthen and expand the capacity of the infrastructure required to sustain and enhance U.S. strategic capabilities. In addition, Allies and partners are central to our findings regarding strategy and posture. We also emphasize the need for robust risk reduction efforts as fundamental to the U.S. approach in the new threat environment.

The Report continues tomorrow

Photo: The lead ground-based Interceptor is launched from Vandenberg Air Force Base, Calif., March 25, 2019, in the first salvo engagement test of a threat-representative intercontinental ballistic missile target. The test’s two interceptors successfully intercepted a target launched from the Ronald Reagan Ballistic Missile Defense Test Site on Kwajalein Atoll in the Pacific Ocean. (DoD)

Chinese technology is changing and its leadership is using it, along with espionage, to challenge the West in a number of critical areas. The United States is only one of its targets. Previously, Beijing’s spies primarily sought Western technologies as a way to skip generations of develop cost and time to modernize its economy. Today, its acquisition of advanced technologies, and now also its indigenous development, makes the communist giant a threat to freedom-loving people everywhere. This week Nan Mulchandani, the CIA’s chief technology officer, said Director William Burns is preparing for an “infinite race” with Beijing for artificial intelligence and advanced technologies. He argues the US must pivot toward providing American spies with the latest transformative technologies to outcompete China. 

Mulchandani says this means updating everything the agency does “from operations to the analytic function, support functions and other piece there.” America, he suggests, needs to alter its thinking toward viewing this not as a race with a finite end point, but as an ongoing competition. Mr. Mulchandani predicted that the next area of competition would “be primarily a software war that is powered by something like AI” rather than hardware fueled by software. That competition, however, is not confined to simply acquiring critical technologies for use in the future. China is also challenging the US in space.

China announced today it launched a groundbreaking mission to retrieve samples from the far side of the moon. The space capsule will arrive in four days and collect 4.4 pounds of moon rocks and regolith, or moon dirt. Beijing’s desire to one day become a space power and scientific force is for pragmatic purposes in 2024 a fait accompli. Rep. Frank Lucas (R-Okla.), chairman of the House Science, Space and Technology Committee, said during a NASA budget hearing this week, that “while the US remains the global leader in space exploration, we face increasing challenges internationally.” Referring to China’s space station, Lucas said:  “We cannot allow China to become the front-runner in space exploration… There are too many consequences for our competitiveness, our national security, and our continued ability to explore space.”

A new report released this week by the Center for Strategic and International Studies (CSIS) says that the United States, to further its geopolitical interests and maintain a strong domestic economy, must approach every aspect of economic and trade policy through the lens of global technology competition. The Biden Administration’s approach, it says, discounts the landscape of competition between China and the US and may “jeopardize US advancements in emerging technologies… which could cede the advantage to China….” In particular, the report recommends that the US take action now because quantum and artificial intelligence (AI) need a federal policy to ensure the country can spur the entrepreneurship and R&D efforts foundational to the strength of the technology sector.     

As China’s Communist Party (CCP) becomes more hostile to the United States and other Western nations, its aggressive activities abroad expand and intensify. Chinese spy cases far outnumber those of Russia and every other nation. CSIS reports that since President Xi took over in 2012 there have been 224 incidents of spying. Estimates of the long -term economic, scientific, and national security cost to the US run into the billions and have “created immeasurable damage to national security with the theft of weapons technology, including nuclear weapons test data… China has added the theft of massive quantities of personal information, political coercion, and influence operations, to its espionage activities.” The CSIS reports says that 49% of incidents of spying in the US directly involved Chinese military or government employees, with private Chinese citizens accounted for 41%. In 29% of the espionage cases the person involved was attempting to acquire military technology, while in 54% of the incidents it was related to commercial technologies. Almost half of the cases involved cyber espionage, usually by state—affiliated actors. 

No matter where one turns today China is challenging the West, from the depths of our oceans to outer space. The United States cannot count on China to be a good global citizen and refrain from attempting to enforce its vision of world order with Beijing at the apex. The time is growing short for the West to take action.

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

While Russia is celebrating May Day at home this week, it is also growing closer to breaching the threshold triggering a nuclear event in Western Europe. Military analysts in Washington consider the recent deployment of Russian tactical nuclear weapons in Belarus a political sign designed to unnerve the North Atlantic Treaty Organization’s (NATO) easternmost flank. Alexander Taranov, of the Jamestown Foundation calls it “practical preparation for nuclear escalation.” Last week the Kremlin publicly repeated its threat of nuclear war against the West. It immediately followed the US Congress’ vote to provide $61 billion in military assistance to Ukraine. 

Up for debate is whether Russia’s storage of nuclear warheads in Belarus is short-term preparation for their operational use. Russian Foreign Minister Sergei Lavrov openly declared that increasing aid to Ukraine increases the threat of a direct military clash. From Moscow’s perspective, he points out, Ukraine is backed by three nuclear states, including the US, UK, and France. He uses it to justify the Kremlin’s moves in Belarus as Russia considers the situation a serious strategic risk. The nuclear environment in Europe is moving beyond simple rhetoric this spring.

Russian-Belarus preparations for an attack on the West include war gaming a simulated nuclear event in Ukraine and Eastern Europe. The operating assumption for the games is that the West is “morally too weak to respond with retaliatory strikes,” according to Taranov. The representative for national defense of the Belarusian opposition-in-exile’s United Transitional Cabinet and former commander of the Belarusian 38th Separate Guards Air Assault Brigade (Brest), Valery Sahashchyk, says that the militaries are war-gaming and preparing for an attack on Lithuania. Last week the publication RIA Novosti suggested that the Kremlin may take matters into its own hands and that Russia is fighting a “long war” against the collective West and Ukraine. 

Just over a month ago, the Federation of American Scientists (FAS) confirmed the establishment of a nuclear warhead storage facility near Asipovichy, Belarus, where, according to Taranov, the 1405^th Artillery Ammunition Base is located. The 465^th Missile Brigade is almost co-located and supplied with Russian Iskander-M operational-tactical missile (RMB) systems that are also known as TNW carriers. Pre-deploying tactical nuclear weapons (TNWs) raises the potential that Russia could choose to use them should the war in Ukraine go badly this summer. 

Western powers are divided on how to view the Russian nuclear moves. Some military planners are arguing that the West needs to be prepared, despite the possibility that Putin is simply posturing and not preparing for war. Other Western commentators suggest it is only posturing since prior to the recent nuclear deployment in Belarus, Russia already had the capability to launch a strike in Eastern Europe using its modernized nuclear weapons storage facilities in Kaliningrad. 

Taranov points out that the Belarusian nuclear site is only modernized with added perimeter security and an access point and that “No underground bunker-type fortifications, designed for the long-term storage of TNWs… were built on the Belarusian base’s territory. Instead, the nuclear warheads were placed in one of the arsenals of the ammunition base, which also stores operational-tactical missiles for the Iskander-M system.” He says this co-location with their launch vehicles is an indication that a repair and maintenance base has been organized there to support and prepare the TNWs for operational use. Personnel on the site are likely tasked with fitting the nuclear warheads on the missiles. 

What makes this more concerning is that during a peacetime environment, the standard Russian practice is to store TNWs in a special bunker-type fortified facility while RMBs typically are located off base. Military procedures in the past called for moving TNWs off base to the TNW carrier and delivery vehicle site only after receiving an order or special command from: 1) the Supreme Commander-in-Chief, 2) the Minister of Defense, and 3) the Chief of the Russian General staff. Co-positioning marks a change in standard operating procedures that indicates the weapons are, essentially, in field-ready conditions. This reduces the time to place the nuclear warheads on the missiles. This “indicates preparation for operational use,” according to Taranov.

There are additional signs that Putin is prepping for an escalation in the Ukrainian conflict. The Polish government says Russian Aerospace Forces are using Belarusian-based Kh-55 nuclear-capable cruise missiles with imitators of nuclear warheads against targets in Poland and Ukraine. This points to Russia’s practicing for at minimum of a tactical nuclear strike. The summer months may become very active in Europe if Putin sees it as an opportune time to act while the US is in the middle of a presidential election.

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

Photo: RS-24 Yars (SS-27 Mod 2) ICBM. Photo: Wikimedia Commons / Vitaly V. Kuzmin

The Biden Administration continues to ignore the will and best interests of the American people regarding illegal immigration.

Recent polls indicate that illegal immigration is the most frequently cited problem noted by Americans.  Gallup notes that “a record-high 55% of U.S. adults, up eight points from last year, saying that “large numbers of immigrants entering the United States illegally” is a critical threat to U.S. vital interests.” A Monmouth survey found that “More than 8 in 10 Americans see illegal immigration as either a very serious (61%) or somewhat serious (23%) problem.”

During his State of the Union Address, President Biden attempted to blame opposition to legislation as a factor.  However, rather than addressing the problem, the bill would have actually made the issue permanent by allowing vast numbers to enter the nation before any meaningful action was taken.

The dilemma is unique, in that this wasn’t a challenge that occurred, but rather one that was self-induced by the Biden Administration when it reversed existing measures that had been working.

Public reaction has become further inflamed due to recent and stunning revelations that the Biden White House secretly flew 320,000 illegals into the U.S. from Latin American airports.  Any Administration spin that this was a problem they hoped to deal with fell apart. It is obvious that the president has actually encouraged, aided and facilitated unlawful entry into the country, despite the massive financial and criminal challenges it causes.

A House Judiciary Committee report reports that “Far from disincentivizing the flood of illegal immigration by detaining and removing illegal aliens, President Joe Biden and Department of Homeland Security (DHS) Secretary Alejandro Mayorkas continue to release illegal aliens into U.S. communities en masse. In fact, in early December 2023, DHS officials admitted that “an average of 5,000 illegal aliens are currently being released into the U.S. each day at the border.” Even Secretary Mayorkas has acknowledged the high rate of releases, telling Border Patrol “that the current rate of release for illegal immigrants apprehended at the southern border is ‘above 85 [percent].”

House Republicans have released extraordinary statistics:

 Since Joe Biden took office:

• There have been 8.7 million illegal crossings nationwide. 
  • There have been OVER 7.2  MILLION illegal crossings of our Southern Border.
    • The total number of illegal immigrants who have entered through our Southern Border is greater than the population of 36 states. Including;
      • Alabama, Alaska, Arkansas, Colorado, Connecticut, Delaware, Hawaii, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Mexico, North Dakota, Oklahoma, Oregon, Rhode Island, South Carolina, South Dakota, Tennessee, Utah, Vermont, West Virginia, Wisconsin and Wyoming. 
  • There have been 1.8 million known gotaways who evaded U.S. Border Patrol.  
• Since the start of FY 2024 there have been OVER 1 million illegal immigrant encounters.
• In January, there were 176,205 illegal immigrants encountered at the Southern Border.
  • January was the 35th straight month, where monthly illegal immigrant encounters have been higher than even the highest month seen under President Trump. 
• Under Biden, over 340 of these individuals whose names appear on the terrorist watchlist were stopped trying to cross the Southern Border.
  • So far in FY24, there have been 58 individuals whose names appear on the terrorist watch list who have been stopped trying to enter the U.S. illegally between ports of entry. 
  • This total is more than the encounters in all FY17, FY18, FY19, FY20, FY21, and FY22 combined. 
• Over 20,000 Communist Chinese nationals have illegally crossed the Southern Border since FY24 began in October. 
  • Communist Chinese nationals are exploiting Joe Biden’s failed Far Left open border policies at “record-breaking figures,” becoming “the fastest-growing demographic entering the country illegally.”
  • The surge in Communist Chinese nationals encountered at our Southern Border has raised serious concerns that the Chinese Communist Party (CCP) is exploiting the Biden border crisis for nefarious reasons.
  • There are OVER 60 instances of Joe Biden and his Administration taking actions that undermined our nation’s border security, including halting the construction of the border wall. 
  • In August 2022, Biden and his Administration decided to make the border crisis WORSE by formally ending former President Trump’s successful ‘Remain in Mexico’ program.”
  • The Biden Administration announced on May 10, 2023, that it would allow for the release of some migrants into the U.S. with no way to track them.
    • Biden’s Department of Homeland Security has now admitted that 40 percent of catch-and-release migrants have disappeared. 

Why would President Biden pursue a policy that has clearly caused significant financial hardships for cities and states? A KFF study notes that “Immigrants, including naturalized citizens, lean more towards the Democrats when asked which political party represents their own views, which party best represents the interests of immigrants overall, and whether immigrants were better off under the Biden or Trump presidencies.”

Photo: Pixabay

To summarize Hur’s additional reasons for not recommending a prosecution of Joe Biden for his retention of classified documents; Hur believes that jurors hearing any such case would believe that Biden may have thought it was no big deal that he had these documents, may not have had these documents in his possession at the time he made the statement admitting to possession of these documents, and may have been referring to other documents, even though Biden and his ghostwriter were discussing Biden’s opposition to Obama’s troop surge in Afghanistan, the subject of those same classified documents.

These reasons, in addition to the “maybe he forgot” defense, all lead Hur to conclude that any prosecution of Joe Biden couldn’t possibly succeed.

These jaw-dropping findings are made even more incredible by the additional evidence of wrong doing discussed in Hur’s Report; “FBI agents recovered from unlocked drawers in the office and basement den of Mr. Biden’s Delaware home a set of notebooks he used as vice president. Evidence shows that he knew the notebooks contained classified information. Mr. Biden wrote down obviously sensitive information discussed during intelligence briefings with President Obama and meetings in the White House Situation Room about matters of national security and military and foreign policy…at least three times Mr. Biden read from classified entries aloud to his ghostwriter nearly verbatim.”

Let us understand these findings; besides the “classified stuff” that Biden told his ghostwriter he’d found in the basement of his Virginia home, Biden also kept notebooks that contained classified information in an unsecured location at his Delaware home, materials that he discussed with his ghostwriter, who did not have any security clearance.

Further, Hur details Biden’s purposeful reasons for retaining these notebooks; “[w]hen Mr. Biden left office, he also knew his staff decided to store notecards containing his classified notes in a Secure Compartmented Information Facility (SCIF) at the National Archives, and he knew his notebooks contained the same type of classified information. As he told his ghostwriter during a recorded interview, the same staff who arranged to secure his classified notecards ‘didn’t even know’ he had retained possession of his classified notebooks. Twice in 2017, Mr. Biden visited the National Archives SCIF to review his classified notecards while writing his book. Yet he kept his notebooks, which also contained classified information, in unlocked drawers at home. He had strong motivations to do so and to ignore the rules for properly handling the classified information in his notebooks. He consulted the notebooks liberally during hours of discussions with his ghostwriter and viewed them as highly private and valued possessions with which he was unwilling to part.”

Despite this evidence for Biden’s willful retention of classified documents while a private citizen, Hur persists in claiming that :”[w]e do not…believe this evidence would meet the government’s burden at trial – particularly the requirement to prove that Mr. Biden intended to do something the law forbids. Consistent with statements Mr. Biden made during our interview of him and arguments made by the White House Counsel and Mr. Biden’s personal counsel, we expect Mr. Biden’s defense at trial would be that he thought his notebooks were his personal property and he was allowed to take them home, even if they contained classified information.”

Let us restate these facts; Joe Biden maintained notebooks in which he kept classified information.  Biden knew there was classified information contained in those notebooks, and he conveyed classified information to a person without a security clearance (his ghostwriter) on at least three occasions.

Do these allegations remind you of a recent case involving another public figure?  Someone who was prosecuted and convicted of the unauthorized removal and retention of classified materials?

David Petraeus had a very storied career – up to a point.  As he is described in a Factual Statement provided by the US Attorney’s Office in 2015, Petraeus “was a United States Army four-star general when he retired from the Army on or about August 31, 2011. From on or about July 4, 2010, to on or about July 18, 2011, (he) served as Commander of the International Security Assistance Force (“ISAF”) in Afghanistan. From on or about September 6, 2011, to on or about November 9, 2012, (he then) served as Director of the Central Intelligence Agency (“CIA”).” 

According to the US Attorney’s office, “[d]uring his tenure as Commander of ISAF in Afghanistan, [General Petraeus] maintained bound, five-by-eight-inch notebooks that contained his daily schedule and classified and unclassified notes he took during official meetings, conferences, and briefings. The notebooks had black covers and, for identification purposes, [General Petraeus] taped his business card on the front exterior of each notebook. A total of eight such books (hereinafter the “Black Books”) encompassed the period of [General Petraeus’] ISAF Command and collectively contained classified information regarding the identities of covert officers, war strategy, intelligence capabilities and mechanisms, diplomatic discussions, quotes and deliberative discussions from high-level National Security Council meetings, and…discussions with the President of the United States of America.”  These Black Books also “contained national defense information, including Top Secret//SCI and code word information.”

In 2011, after the General’s return from Afghanistan,  the Department of Defense (DOD) “historian gathered and organized the classified materials that [General Petraeus] collected during his DOD tenure. [General Petraeus]  never provided the Black Books to his DOD historian. Instead, [General Petraeus] personally retained the Black Books.”

General Petraeus than began work with a biographer named Paula Broadwell on his memoirs.  “[D]uring a conversation, recorded by his biographer, [General Petraeus] stated that the Black Books were ‘highly classified’ and contained ‘code word’ information: Biographer: By the way, where are your black books? We never went through,.. PETRAEUS: They’re in a rucksack up there somewhere. Biographer: Okay .. . You avoiding that? You gonna look through ’em first? PETRAEUS: Umm, well, they’re really – I mean they are highly classified, some of them. They don’t have it on it, but I mean there’s code word stuff in there.”

Nonetheless, despite their “highly classified” status, General Petraeus eventually let Broadwell, who was the General’s mistress as well as his biographer, have access to these Black Books.  Subsequently, according to NPR, “[t]he nature of Petraeus’ relationship with Army reservist Paula Broadwell emerged during an FBI investigation that was sparked by allegations from another woman, Jill Kelley, that she was receiving harassing emails. Those messages were reportedly traced to Broadwell.” 

According to the US Attorney’s 2015 Statement of Facts,  “[o]n or about October 26, 2012, [General Petraeus] was interviewed by two FBI special agents…[General Petraeus] was advised that the special agents were conducting a criminal investigation. During that interview, the special agents questioned [General Petraeus] about the mishandling of classified information. In response to those questions, [General Petraeus] stated that (a) he had never provided any classified information to his biographer, and (b) he had never facilitated the provision of classified information to his biographer. These statements were false. [General Petraeus] then and there knew that he previously shared the Black Books with his biographer.” 

The end for Petraeus came “[o]n or about April 5, 2013, [when] the FBI executed a court-authorized search warrant…and seized the Black Books from an unlocked desk drawer in the first-floor study of the [General’s] Residence.”In April of 2015, “Petraeus was sentenced…to two years of probation and handed a $100,000 fine for the unauthorized removal and retention of classified material.” 

In other words, General Petraeus, willfully kept notebooks that contained classified information in his personal possession, in an unsecured location, and shared the information contained in those notebooks with his biographer, who did not have security clearance. 

Just how is this conduct different from that of Joe Biden, who basically did the exact same thing?

In a footnote buried in Chapter 13 of his Report, Special Counsel Hur notes that “[t]here are significant similarities between Petraeus’s case and Mr. Biden’s.”  However, Hur believes ” the differences are more significant.”

Hur then details these supposed differences.  “First, Petraeus’s retention of notebooks violated numerous nondisclosure agreements he signed as an employee of the Department of Defense. By contrast, by virtue of his unique constitutional role as vice president, Mr. Biden signed no such nondisclosure agreements or attestations. Second, Petraeus lied when questioned by FBI agents, telling them he had not provided classified information to his biographer…Mr. Biden’s case began with a proactive self-disclosure, and he has cooperated with the Department of Justice and special counsel by consenting to multiple searches of his personal residence and offices. Third, there was stronger evidence of willfulness in Petraeus’s case, in light of his lies and obfuscations, whereas Mr. Biden has asserted his rightful ownership of his notebooks .”

These differences, according to Hur, justify the fact that  “Petraeus was charged only with a misdemeanor,” and President Biden should not be charged with anything.

Other than General Petreaus signing a series of non-disclosure agreements, and lying to the FBI, all other aspects of both cases are similar.  Petraeus knew he shouldn’t maintain possession of his Black Books.  Biden knew, or had good reason to know, that he should not keep personal control of his notebooks.  Petreaus kept his notebooks in an unlocked desk in his residence, an unsecured location; Biden did the same.  Petreaus shared the classified information contained in those Black Books with his biographer, who had no security clearance; ditto for Biden.

Clearly, these similarities outweigh the minor differences. But there are some additional differences in the outcome of each case that are not discussed by Robert Hur. 

Petreaus is not “a sympathetic, well-meaning, elderly man with a poor memory.”  The General did not have a Special Counsel to make excuses for him, arguing that he probably “forgot” that he had these documents after referencing them and describing their specific location, that his Black Books weren’t the documents he was talking about, that these notebooks weren’t even in his residence while he discussed their existence, that he thought he was entitled to maintain these documents in his possession, and keep that information from his staff.

General Petreaus did not have an advocate in the US Attorney’s office who was looking for reasons not to charge him.

But Joe Biden does.

In other words, rather than seek a basis to charge President Biden for the unlawful retention and dissemination of classified information to unauthorized persons, Robert Hur looked for every reason possible not to charge Joe Biden with this, or any other, crime related to his retention and dissemination of classified information.

For this reason, if no other, the Hur Report is nothing more than almost 400 pages of pure whitewash.  

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

“Down is up, up is down. Good is Wicked, Wicked is Good. The times are changing. This is what Oz has come to.”

Danielle Paige, Wicked

As we have discussed, the Report issued by Special Counsel Robert Hur states “[o]ur investigation uncovered evidence that President Biden willfully retained and disclosed classified materials after his vice presidency when he was a private citizen.”  Nonetheless, Hur concludes that “the evidence does not establish Mr. Biden’s guilt beyond a reasonable doubt.” 

In our last article, we examined one of the grounds for Hur’s decision not to recommend prosecution of Joe Biden; his finding that “at trial, Mr. Biden would likely present himself to a jury, as he did during our interview of him, as a sympathetic, well-meaning, elderly man with a poor memory. Based on our direct interactions with and observations of him, he is someone for whom many jurors will want to identify reasonable doubt. It would be difficult to convince a jury that they should convict him – by then a former president well into his eighties – of a serious felony that requires a mental state of willfulness.”

Today, we analyze Hur’s decision to exonerate Biden despite the evidence for the President’s willful retention of classified materials while not in office.

As described in Chapter 11 of the Report, “[i]n a recorded conversation on February 16, 2017, at Mr. Biden’s rental home in Virginia, Mr. Biden told Mark Zwonitzer (a writer working with Biden) that Mr. Biden had ‘just found all the classified stuff downstairs.’ According to what Mr. Biden told Zwonitzer, ‘all the classified stuff’ related to President Obama’s 2009 decision to surge American troops to Afghanistan, and to a pivotal moment when Mr. Biden sent President Obama his handwritten Thanksgiving memo opposing the troop surge. Photos of the Virginia home show that the lowest level ‘downstairs’-where Mr. Biden told Zwonitzer he had ‘just found all the classified stuff’-included rooms that Mr. Biden used as work and storage spaces.” (Citations omitted.)

Hur goes on to claim that “Mr. Biden could have found the classified Afghanistan documents at the Virginia home in 2017 and then forgotten about them soon after.” Hur justifies this amazing assertion with his finding that  “Mr. Biden’s memory…appeared to have significant limitations…[i]n his interview with our office, Mr. Biden…did not remember when he was vice president [and forgot]…when his son Beau died.”

Hur admits that the “best case for charges would rely on Mr. Biden’s possession of the Afghanistan documents in his Virginia home in February 2017. when he was a private citizen and when he told his ghostwriter he had just found classified material.”  However, in addition to the ludicrous “maybe he forgot” defense, Hur finds further reasons to decline to prosecute Biden for this allegation.

According to Hur, “[w]hen Mr. Biden told his ghostwriter about finding ”all the classified stuff downstairs,’ his tone was matter-of-fact. For a person who had viewed classified documents nearly every day for eight years as vice president, including regularly in his home, finding classified documents at home less than a month after leaving office could have been an unremarkable and forgettable event.”

Hur continues in this nonsensical vein; “Another viable defense is that Mr. Biden might not have retained the classified Afghanistan documents in his Virginia home at all. They could have been stored, by mistake and without his knowledge, at his Delaware home since the time he was vice president, as were other classified documents recovered during our investigation. This would rebut charges that he willfully retained the documents in Virginia.”

But didn’t Biden himself say to Zwonitzer that he found the “classified stuff” in the basement of that same Virginia home?  Hur has a preposterous answer for that question; “[J]urors may hesitate to place too much evidentiary weight on a single eight-word utterance to his ghostwriter about finding classified documents in Virginia, in the absence of other, more direct evidence…no witness, photo, email, text message, or any other evidence conclusively places the Afghanistan documents at the Virginia home in 2017.”

As if this analysis wasn’t incredible enough, Hur adds that “[i]n addition to this shortage of evidence, there are other innocent explanations for the documents that we cannot refute. When Mr. Biden told his ghostwriter he ‘just found all the classified stuff downstairs,’ he could have been referring to something other than the Afghanistan documents.”

The report concludes tomorrow

Illustration: Pixabay

Judge Juan Merchan Must Recuse Himself from Hearing the Case of Donald Trump

By John H. Wilson

In April and May of 2023, we discussed several of the weaknesses of the criminal case brought against former President Donald Trump.  In particular, we described the legal insufficiency of the indictment, which does not “asserts facts supporting every element of the offense charged and the defendant`s…commission thereof with sufficient precision to clearly apprise the defendant…of the conduct which is the subject of the accusation.”   We also noted that the majority of the charges brought against Trump are most likely time-barred by New York’s Statute of Limitations. https://www.usagovpolicy.com/is-trumps-indictment-beyond-the-statute-of-limitations/

In both articles, we also noted that the Judge assigned to hear the case against the former President, Juan Merchan, had previously donated small sums to several anti-Trump organizations, and was unlikely to dismiss the charges on either of these grounds.  According to the New York Post, Merchan “donated $35 to Democratic causes in 2020, including $15 to President Biden’s campaign and $10 to a group dedicated to ‘resisting … Donald Trump’s radical right-wing legacy.’ Federal Election Commission records show Merchan made three small-dollar donations within the span of two days in July 2020 through ActBlue, the Democratic Party’s preferred online fundraising platform. The veteran judge contributed $15 earmarked for the ‘Biden for President’ campaign on July 26, 2020, and then the following day made $10 contributions to the Progressive Turnout Project and Stop Republicans” . 

Given the small amounts involved, no one seriously argued that Judge Merchan should be removed from the case after having made these contributions, even though  “FEC records show that Merchan listed his occupation as  ‘judge’  on the donation form, and his employer as the New York State Office of Court Administration.”  This is, however, an issue of some seriousness. 

Under Rule 100.5(A)(1) of the Rules of the Chief Administrative Judge for the State of New York,  “[n]either a sitting judge nor a candidate for public election to judicial office shall directly or indirectly engage in any political activity except (i) as otherwise authorized by this section or by law, (ii) to vote and to identify himself or herself as a member of a political party, and (iii) on behalf of measures to improve the law, the legal system or the administration of justice. Prohibited political activity shall include…(h) soliciting funds for, paying an assessment to, or making a contribution to a political organization or candidate. (Emphasis added.) 

This means that despite the modest sums donated by Judge Merchan, he is prohibited from making ANY contribution, in ANY amount, to the Biden campaign, or any other political organization.

It’s not as if Judge Merchan wouldn’t be aware of these rules.  According to CNN, “Merchan launched his legal career in 1994…as an assistant district attorney in the trial division in the Manhattan District Attorney’s Office…[i]n 2006, New York Mayor Michael Bloomberg…appointed Merchan to Family Court in the Bronx, and Democratic Gov. David Paterson appointed him to the New York State Court of Claims in 2009, the same year he began serving as an acting New York Supreme Court judge.”   With more than 23 years of experience as a judge, Juan Merchan would certainly know he is prohibited from making contributions in any amount to political campaigns and organizations. 

But he did it anyway.

Further, under Rule 100.3(E)(1) “[a] judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned.”  Making campaign contributions to the current President, and then hearing the case of that President’s opponent in this year’s election would certainly qualify as a reasonable question regarding Merchan’s impartiality.

But this is only one basis under which Judge Merchan’s removal from the Trump case is both appropriate and necessary.  There is more substantial basis for this matter to be taken away from Judge Merchan.

Rule 100.3(E)(1) continues as follows; “[a] judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to instances where… (d) the judge knows that the judge or the judge’s spouse, or a person known by the judge to be within the sixth degree of relationship to either of them, or the spouse of such a person…(iii) has an interest that could be substantially affected by the proceeding.”

According to the website Living DNA, a First Degree of Relationship is a Parent to a Child, while a Sixth Degree is a second cousin.  In between are Grandparents and grandchildren, great-grandparents and great-grandchildren, Aunts, Uncles, Nieces, Nephews and First Cousins. 

It stands to reason, then, that if Judge Merchan had a cousin, or a nephew, or a grandchild who was known to the Judge, and that person had “an interest that could be substantially affected” by a proceeding over which Judge Merchan was presiding, he would have to legally and ethically recuse himself from the handling of that matter.

But what if that person is of the first degree of relationship, that is, a child of the Judge?

Meet Loren Merchan, who is, according to the New York Post, “president of Authentic Campaigns, a Chicago-based progressive political consulting firm whose top clients include Rep. Adam Schiff (D-Calif.), who was the lead prosecutor in Trump’s first impeachment trial, and the Senate Majority PAC, a major party fundraiser…Schiff’s campaign for US Senate scored an eye-popping $20 million in aid since he began soliciting donations off the presumptive GOP presidential front-runner’s unprecedented 34-count indictment last April, according to Federal Election Commission records…The Senate Majority political action committee, which supports Democratic Senate campaigns, pocketed $73.6 million since it also began firing off fundraising emails following the ex-president’s indictment…The super PAC has done more than $15 million in business with Authentic since 2019, including email fundraising and branding assistance, while Schiff’s Senate campaign paid Authentic more than $10 million for digital advertising and other consulting services the past year, records show.” 

Let us understand what the New York Post has revealed here.  Loren Merchan is the president of an organization that has been paid ten million dollars by the Senate Majority PAC, which has earned the money to pay Loren’s company by fundraising that is, at least, partially based on exploiting the indictment of former President Trump.  Clearly, then, this person has an interest that could be substantially affected by a trial over which Judge Merchan is currently presiding.

But is there a relationship between Judge Juan Merchan and Loren Merchan, the President of Authentic Campaigns?

Let’s ask the judge himself.

“This Court’s daughter is the President and Chief Operating Officer of Authentic Campaigns, Inc., a digital marketing agency that works with Democratic Party candidates as well as non-profit organizations,” Judge Merchan wrote in his August 2023 decision denying Donald Trump’s motion for the judge’s removal from the case. 

But yes, you read that right.

Loren Merchan is the daughter of Juan Merchan – of the first degree of relation to the Judge.

So why is Juan Merchan hearing the case of Donald Trump at all?  Why hasn’t he followed Rule 100.3 of the Rules of the Chief Administrative Judge for the State of New York?

“[O]n May 4,2023,[the New York State] Advisory Committee [on Judicial Ethics] issued an opinion in direct response to this Court’s earlier inquiry,” Judge Merchan wrote. “On the specific issue of the employment of this Court’s daughter, the Committee wrote ‘the matter currently before the judge does not involve either the judge’s relative or the relative’s business, whether directly or indirectly. They are not parties or likely witnesses in the matter, and none of the parties or counsel before the judge are clients in the business. We see nothing in the inquiry to suggest that the outcome of the case could have any effect on the judge’s relative, the relative’s business, or any of their interests.’ Defendant has failed to demonstrate that there exists concrete, or even realistic reasons for recusal to be appropriate, much less required on these grounds. The speculative and hypothetical scenarios offered by Defendant fall well short of the legal standard.”

In other words, Judge Merchan sought an opinion from the Advisory Committee on Judicial Ethics, and he was told that his daughter’s business, which profits handsomely by fundraising for Democrats, does not present any conflict of interest for Judge Merchan in his presiding over the trial of Donald Trump.

Unfortunately for the former President, Judge Merchan has the right to rely upon this Advisory Opinion. “The Judiciary Law [of New York State] provides that any action a judge takes in accordance with a formal advisory opinion of the Advisory Committee is ‘presumed proper’ for purposes of any subsequent investigation by the New York State Commission on Judicial Conduct.” 

For the sake of argument, then, let us assume that Judge Merchan is actually able to act fairly and impartially in hearing the case against Donald Trump, and that his daughter’s profitable work on behalf of Democrats will have no impact on his ability to be fair.

There is yet another basis for Judge Merchan’s removal.

Under Rule 100.2 of the Rules of the Chief Administrative Judge for the State of New York, “[a] judge shall avoid impropriety and the appearance of impropriety in all of the judge’s activities” (Emphasis added.) This includes an admonishment that “[a] judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.”

Hearing the criminal case brought against the Republican candidate for President while your own daughter runs a company that makes millions of dollars working with Democrats and their candidates for office certainly has the appearance of impropriety, and does not promote public confidence in the impartiality of Judge Merchan, does it?

Recently, Donald Trump’s attorneys brought a second motion asking the Court once more to recuse itself.   “’Authentic and Your Honor’s daughter are making money by supporting the creation and dissemination of campaign advocacy for President Trump’s opponent, political rivals, and the Democrat party,’ Trump’s lawyers wrote in court papers.”  But this motion was also denied by Judge Merchan.  

So the trial of Donald Trump continues.  But knowing that the Judge has contributed to the campaign of Joe Biden and other progressive Democrat causes, and that his daughter makes her money by fundraising for Democrats, leads to one nagging question;

Does anyone really believe for a minute that Judge Juan Merchan can be fair and impartial here?

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