Author: Judge John Wilson (ret.)

If you listen to the legacy media, or read the majority of what are generally considered mainstream news sources, and are trying to get information about the Congressional investigation into the Biden Family business, maybe you experience the same feeling as when you come upon a traffic accident, or a crime scene.  Usually, there is a police officer waving you away, telling you “Move along citizen, nothing to see here.”

Here, it’s the media telling you to be on your way, and ignore the carnage that’s plain to see.

For instance, Politico stated in April that “House Republicans charged into the majority vowing an investigative onslaught against President Joe Biden and Democrats. But they’ve gotten almost nowhere so far.”  Then, in May, according to the New York Times, “(a)fter months of investigation and many public accusations of corruption against Mr. Biden and his family, the first report of the premier House GOP inquiry showed no proof of such misconduct.” 

These reports are from earlier this year, before the testimony of Devon Archer to the House Oversight Committee in July.  “Archer said…Hunter Biden (made) millions in business deals with…foreign companies, including Burisma and CEFC China Energy,” as reported by Yahoo! News. “after Burisma added Hunter Biden to its board in 2014, that helped the company survive because it was associated with what Archer called ‘the Biden brand…I think Burisma would have gone out of business if it didn’t have the brand attached to it,’ Archer said. ‘People would be intimidated to mess with them.’” 

Did this dramatic testimony by Hunter Biden’s former business partner change the minds of the media? 

No.  According to PBS. “The Republican-led House Oversight Committee conducted a more than-five hour interview with Devon Archer as part of its expanding congressional inquiry into the Biden family businesses…(b)oth Republican and Democratic lawmakers inside the closed-door interview said Archer testified that over the span of 10 years, Hunter Biden put his father on the phone around 20 times while in the company of associates but ‘never once spoke about any business dealings.’” 

What did President Obama talk with his son about during those business calls?  If you ask New York Democratic Representative Dan Goldman, who was present for Archer’s testimony,  “The witness was unequivocal and stated very clearly that they never discussed any business on [those] phone conversations…There were niceties. And there was a hello. And [they] talked about the weather or whatever it was…but it was never any business.” 

The weather?  No business discussed?  20 calls, all while Hunter was “in the company of associates?”  Frankly, this doesn’t pass the smell test.  As the Oversight Committee Republicans asked “Who dials their father into 20 business phone calls?” 

What did Archer actually say? “’You have to understand that there was no business conversation about…a fee or anything like that,’ Archer told Congress. ‘It was, you know, just general niceties and…conversation in general, you know, about the geography, about the weather, whatever it may be.’ Hunter was selling what Archer called an ‘illusion of access’ to Joe Biden’s decision-making power. ‘People send signals and those signals are basically used as currency. And that’s kind of how a lot of D.C. operators and foreign tycoons and businessmen work,’ Archer said.”

Besides the 20 phone calls, “Archer also asserted that then-Vice President Joe Biden met a Burisma executive in 2015 at a dinner with Hunter Biden and others in Washington, D.C.”   

Chairman of the House Oversight Committee, James Comer (R-KY), put the issue of Biden’s corruption in its proper perspective; “Devon Archer’s testimony confirms Joe Biden 𝐋𝐈𝐄𝐃 when he said he had no knowledge about his son’s business dealings and was not involved. Joe Biden was ‘the brand’ & he joined Hunter’s dinners with his foreign associates in person or by phone over 20 times.” (Emphasis in original.) 

The article concludes tomorrow

Judge Wilson served on the bench in NYC

Illustration: Pixabay

In August of 2022, we discussed whether or not the Biden Administration has the authority to forgive outstanding student loans.  At that time, we detailed a series of instances where the Courts had determined that various Biden initiatives were in excess of the authority granted the Executive Branch by the Congress, and therefore unconstitutional.  We predicted that this measure would also be found illegal. 

We also discussed the Biden Administration’s belief that the HEROES Act of 2003 authorized the Secretary of Education to engage in a wholesale amnesty of student loan debt.  In that regard, we quoted Jonathan Turley, a Law Professor at George Washington University, who said, “President Biden has been a constitutional recidivist in executive overreach in a series of major court losses.  The authority cited is highly challengeable. To assume such a massive power to excuse as much as $500 billion, that authority should be both express and clear. It is not.”

Well, you know how much we hate to say, “I told you so.”  But…we told you so.

On June 30, 2023 the US Supreme Court decided the case of Biden v Nebraska, one of two cases brought in challenge of the government’s student loan forgiveness plan,    and as we predicted, the Supreme Court thought little of the use of the HEROES Act to justify this scheme.

But before we delve into the reasoning behind the Supreme Court’s latest effort to protect the Constitution’s separation of powers, one issue should be clarified.  

When we discussed the state of the litigation on student loan forgiveness in November of 2022, we noted that there were two cases headed to the Supreme Court; Biden v. Nebraska, brought by six states, and Department of Education v. Brown, brought by individual borrowers. Both of these cases turned on the legal issue of standing – that is, who has “suffered an injury,” and therefore has the right to bring a case.

In Biden v. Nebraska, six states complained of a loss of tax revenue as a result of student loan forgiveness.  The lower court called these losses “speculative,” and found that the states did not have standing to bring their case.  Conversely, in Department of Education v. Brown, the lower court found that two individuals who would not be eligible for benefits under the student loan forgiveness plan had standing since “‘Plaintiffs have a concrete interest in having their debts forgiven.’  Thus, these Plaintiffs ‘inability to obtain the full benefit of debt forgiveness under the Program flows directly from the Program’s eligibility requirements.’”

Ironically, the Supreme Court reversed each lower court opinion.  In Brown, Justice Alito found “that (Plaintiffs) fail to establish that any injury they suffer from not having their loans forgiven is fairly traceable to the (student loan forgiveness) Plan.”   Meanwhile, in Biden v. Nebraska, Chief Justice Roberts found that the State of Missouri, through  “the Missouri Higher Education Loan Authority (MOHELA), a public corporation that holds and services student loans,” had standing to sue.  “Under the Secretary’s plan,’ Roberts writes, “roughly half of all federal borrowers would have their loans completely discharged…MOHELA could no longer service those closed accounts, costing it, by Missouri’s estimate, $44 million a year in fees that it otherwise would have earned under its contract with the Department of Education…(t)his financial harm is an injury in fact directly traceable to the Secretary’s plan.”

In his opinion, Roberts gave some background on the HEROES Act. “Shortly after the September 11 terrorist attacks, Congress became concerned that borrowers affected by the crisis—particularly those who served in the military—would need additional assistance. As a result, it enacted the Higher Education Relief Opportunities for Students Act of 2001. That law provided the Secretary of Education, for a limited period of time, with ‘specific waiver authority to respond to conditions in the national emergency’ caused by the September 11 attacks…Rather than allow this grant of authority to expire by its terms at the end of September 2003, Congress passed the Higher Education Relief Opportunities for Students Act of 2003 (HEROES Act)…That Act extended the coverage of the 2001 statute to include any war or national emergency— not just the September 11 attacks. By its terms, the Secretary ‘may waive or modify any statutory or regulatory provision applicable to the student financial assistance programs under title IV of the [Education Act] as the Secretary deems necessary in connection with a war or other military operation or national emergency.’”

During the pandemic, “then-Secretary of Education Betsy DeVos announced that she was suspending loan repayments and interest accrual for all federally held student loans,” a necessary emergency measure, given that many borrowers were out of work and unable to make their payments.  “But in August 2022, a few weeks before President Biden stated that ‘the pandemic is over,’ the Department of Education announced that it was once again issuing ‘waivers and modifications’ under the Act—this time to reduce and eliminate student debts directly.”

Chief Justice Roberts states his ruling in clear and plain language; “The Secretary (of Education) asserts that the HEROES Act grants him the authority to cancel $430 billion of student loan principal. It does not. We hold today that the Act allows the Secretary to ‘waive or modify’ existing statutory or regulatory provisions applicable to financial assistance programs under the Education Act, not to rewrite that statute from the ground up… statutory permission to ‘modify’ does not authorize ‘basic and fundamental changes in the scheme’ designed by Congress…(t)he Secretary’s…’modifications’…were not ‘moderate’ or ‘minor.’ Instead, they created a novel and fundamentally different loan forgiveness program…(f)rom a few narrowly delineated situations specified by Congress, the Secretary has expanded forgiveness to nearly every borrower in the country.”

As Robert’s puts it bluntly, “(t)he Secretary’s plan has ‘modified’ the (HEROES Act) only in the same sense that ‘the French Revolution ‘modified’ the status of the French nobility’—it has abolished them and supplanted them with a new regime entirely…the Secretary’s plan…in essence (allows) the Secretary unfettered discretion to cancel student loans. It is ‘highly unlikely that Congress’ authorized such a sweeping loan cancellation program ‘through such a subtle device as permission to ‘modify.’”

The Biden Administration tried to justify its power grab by stating that “(t)he whole point of the HEROES Act…is to ensure that in the face of a national emergency that is causing financial harm to borrowers, the Secretary can do something,” and that “the unprecedented nature of the Secretary’s debt cancellation plan only ‘reflects the pandemic’s unparalleled scope.’”  But Roberts disposes of this argument quickly.  

“The question here is not whether something should be done; it is who has the authority to do it,” the Chief Justice writes.  “(T)he Secretary of Education claims the authority, on his own, to release 43 million borrowers from their obligations to repay $430 billion in student loans. The Secretary has never previously claimed powers of this magnitude under the HEROES Act… Under the Government’s reading of the HEROES Act, the Secretary would enjoy virtually unlimited power to rewrite the Education Act… (t)he ‘economic and political significance’ of the Secretary’s action is staggering by any measure…(a) budget model issued by the Wharton School of the University of Pennsylvania estimates that the program will cost taxpayers ‘between $469 billion and $519 billion,’ depending on the total number of borrowers ultimately covered…It amounts to nearly one-third of the Government’s $1.7 trillion in annual discretionary spending.”  

Therefore, if this use of the HEROES Act were found legal, “the Secretary (of Education could then claim) the authority to exercise control over ‘a significant portion of the American economy.’”  In essence, then “(t)he Secretary’s assertion of administrative authority has ‘conveniently enabled [him] to enact a program’ that Congress has chosen not to enact itself…Congress did not unanimously pass the HEROES Act with such power in mind. ‘A decision of such magnitude and consequence’ on a matter of ‘earnest and profound debate across the country’ must ‘res[t] with Congress itself, or an agency acting pursuant to a clear delegation from that representative body.’”

Thus, Roberts reaches the same conclusion the Supreme Court has reached in a number of decisions involving efforts by the Biden Administration to seize power from Congress; “’The basic and consequential tradeoffs’ inherent in a mass debt cancellation program ‘are ones that Congress would likely have intended for itself’…In such circumstances, we have required the Secretary to ‘point to clear congressional authorization’ to justify the challenged program…And as we have already shown, the HEROES Act provides no authorization for the Secretary’s plan even when examined using the ordinary tools of statutory interpretation—let alone ‘clear congressional authorization’ for such a program.”

But will President Biden cease his efforts to unconstitutionally seize power from Congress?  Don’t bet on it.

According to Caleb Kruckenberg of the Pacific Legal Foundation, writing in the New York Post, “(w)hile everyone’s focus has been on the administration’s outrageous cancellation stunt, the DOE has been working tirelessly to accomplish an even more disastrous policy: a new Income-Driven Repayment rule… (u)nder the new plan, in a variety of formulations, the secretary proposes to dramatically reduce the monthly payments of most borrowers, with millions looking at payments of $0, while also reducing the time to forgiveness to as short as 10 years. In other words, while styled as a rule that simply tinkers with the details of existing income-based repayment programs, it effectively does the same work as the cancellation effort: It writes off the debts of millions of college-educated borrowers. And it does so permanently – applying to future borrowers…(t)he rule itself claims it would cost taxpayers at least $138 billion… The Penn Wharton Budget Model estimated that the actual program costs between $333 billion and $361 billion over 10 years.  Estimates that account for tuition inflation and future borrowing costs put government expenditures as high as $1 trillion. The old cancellation policy’s $500 billion price tag now almost seems quaint.”

Unfortunately, this scheme might be more successful than the effort to cancel student loans.  This measure is based on the Higher Education Act of 1965, and as we discussed last August,  “one would think the Biden Administration would argue that over the course of 50 years, Congress has granted the Secretary of Education increased power over student loans, including control over loan extensions and forgiveness, and that this latest initiative is nothing new in the increasing burden the Department of Education has placed on the American taxpayer.”

In other words, stayed tuned.  Biden v. Nebraska may prove to be a short-lived victory against executive overreach, while the real war was lost by Congress when it gave its authority away to the Secretary of Education in 1965.

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

Illustration: Pixabay

China may be facing growing domestic economic and political issues, but it remains a major global concern to nations attempting to protect their intellectual property (IP) and state secrets. Academic institutions in advanced Western nations, such as Germany, are only recently beginning to recognize the extent of the threat and act, by suspending some Chinese government-funded researchers over concerns of industrial espionage and academic freedom. It may be too little, too late, according to military analysts in Washington. In June, one of Germany’s leading academic institutions, the Friedrich Alexander University of Erlangen-Nuremberg (FAU), announced the formal suspension of its Chinese government-funded researchers. Earlier this week the school admitted it “feared” these individuals were utilizing government funding supplied through the China Scholarship Council (CSC) for spying. 

Joseph Fitsanakis, writing in IntelNews.org, says that the Swish-based Dagens Nyheter reported that, to receive a CSC scholarship, Chinese citizens are now required to pledge “support [to] the leadership of the Chinese Communist Party… and to have a correct world view, outlook on life, and values system.” This week the FAU sent an internal email to university officials expressing concerns that Beijing could force its CSC researchers to spy on FAU advanced scientific and industrial research and compromise its data security and IP practices as allowed under Chinese law. All Chinese citizens, whether residing inside China or working or studying abroad are compelled to spy under China’s nèibù (内部) regulations when asked by the government.

Bettina Stark-Watzinger, Germany’s Minister of Education, this week supported FAU’s decision saying that research organizations have “a responsibility to safeguard themselves against espionage activities conducted by students receiving scholarships from the Chinese government.” It appears other schools in Western Europe are considering similar actions with intelligence analysts in Washington calling it “long overdue” and “too late” in many cases. China often sends military officers to study Western advanced technologies without declaring their status. Their sheer numbers overwhelm the capabilities of foreign intelligence agencies to identify or track them. At the same time universities are often uncooperative as they vie for the money tied to these students and often overlook or minimize the threat they pose.

The Chinese have an extensive history of industrial spying in modern Germany. As early as 2009, the German Association for Security in Industry and Commerce (ASW), a corporate security group, echoed warnings from the German government over its concern in increases in foreign industrial and commercial espionage. At the time, the German newspaper Mitteldeutsche Zeitung reported that the General Manager of the ASW, Dr. Berthold Stoppelkamp, said the “targeting of German research and commercial enterprises by mainly Chinese and Russian agents is so extensive that it usually costs the German economy over €20 billion per year, and it may be costing as high as €50 billion per year since 2007.”

According to Dr. Stoppelkamp, although these covert activities are government-managed, they “aim to assist individual Chinese or Russian firms competing against German companies for international contracts.” ASW reports point out that most of the espionage activities involve “sensitive information […] siphoned from trade shows and business meetings”, or the covert utilization of Chinese and Russian students working in German universities and research firms. 

China is known for planting of informants with extensive fabricated identities and advanced technological skills. The Germany Ministry of the Interior almost two decades ago warned that “science, engineering, renewable energy, materials research, pharmaceuticals and manufacturing businesses are becoming popular places to imbed foreign spies.”

Industrial espionage in Europe is not limited to Germany. In 2019, after the director of the Belgian intelligence and security agency, the Veiligheid van de Staat  – Surete de L‘Etat (VSSE), accused the director of the Vrije Universiteit Brussel (VUB), one of Belgium’s leading higher-education institutions, of spying for Beijing, the university shut down the research institute. It had been in operation on the campus for over 13 years. Ian Allen, of IntelNews, says that Beijing tried to stifle Belgian research critical of China and that “In Europe alone, the University of Lyon in France, Stockholm University in Sweden, and Holland’s University of Leiden have all recently terminated their cooperation” with various Chinese government-linked organizations. 

In the United States, Ivy League schools appear worried they may lose up to $14 billion in tuition and other fees spent annually by more than 350,000 Chinese nationals studying in the US. These prestigious institutions regularly share strategies to thwart plans by counter-intelligence officials in Washington to address the problem. Harvard University has in recent years explicitly refused to allow FBI Special Agents to train research professors in the advanced technologies how to recognize the Chinese threat. 

It extends to the US commercial sector, too. It is becoming so blatant that this week investigative reporter Philip Lenczycki reported on a video depicting American employees at the Chinese parent company of US-based Gotion, Inc. (which intends to build two electric battery plants in Michigan), pledging Chinese Communist Party oaths and dressed as Red Army soldiers during company field trips. The footage is openly posted on the Chinese battery manufacturer’s website. If officials in Western governments, academia, and the corporate world fail to develop and implement stronger policies, Beijing will continue to make inroads and threaten the international rules-based system.

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

The world is facing an impossible path to peace in Ukraine as long as Vladimir Putin, or a like-minded successor, is leader of the Russian Federation without Western intervention. This month the war in Ukraine passed its 18-month point. What can’t be overlooked is that this conflict is linked closely to the outcome of the Russo-Georgian conflict that began in August 2008. At the time there was heavy artillery fire in the small villages of South Ossetia, controlled by Russian forces since 1992, according to Pavel Baev of the Jamestown Foundation. Tanks reached the area just outside the Georgian capital of Tbilisi, before pulling back a week later to Tskhinvali. French President Nicolas Sarkozy met with Russian President Dmitry Medvedev in Moscow to negotiate a ceasefire, while US Secretary of State Condoleezza Rice held talks with Georgian president Mikhail Saakashvili to convince him to sign an agreement. The Kremlin then recognized Abkhazia and South Ossetia as “independent states.” It was swift and with the aid of Western leaders settled in favor of Moscow’s retention of Georgian territory. Those events encouraged and charted the policy roadmap for Putin in Ukraine.  

Georgy Kobaladze, writing in Svoboda, says that “…the war between Russia and Ukraine explains many of the Kremlin’s technologies and true intentions that were less obvious in 2008 during the war against Georgia.” Baev adds that immediately after the Georgian war, drastic military reforms were launched in Moscow intended to turn the Russian army into a combat-ready force capable of engaging in dynamic multi-domain operations in modern wars. This was followed by the rapid deployment of special forces and airborne troops to Crimea in early 2014 and was viewed as positive proof of success in that modernization.

What the war in Ukraine reveals is that a gap exists between the political ambitions of Kremlin leaders and the ground truth. Russia’s military machine is designed for fast offensive maneuvers but lacks the ability to sustain a protracted war. The Russian General Staff simply did not plan for a high-intensity long war in Ukraine. This is evident in the failed march on Kiev in early 2022 and today in Russia’s Black Sea fleet’s poor performance in defending itself against recent naval drone attacks. After Georgia, Russian military commanders ignored significant factors such as the quantity and quality of the country’s reserves, despite the limited mobilization of Russian troops needed to hold its defensive lines and for offensive tactical operations around Kupyansk. Moving closer to this year’s September 10 elections, with drone attacks more frequent deep inside Russia, the High command is even more anxious about upsetting the population, according to Baev. 

Domestically Putin must also contend with the Russian business elite who continue to endure strict personal sanctions this fall. Forbes reports that as of August 11, Mikhail Fridman, who ranks ninth in the ranking of the richest businessmen in Russia at $ 12.6 billion, German Khan with an estimated $8.2 billion, Kuzmichev at $6.4 billion, and Aven at $4.2 billion, all have had their assets block as “sanctioned persons.” US citizens are also prohibited from doing any business with them and the Russian Union of Industrialists and Entrepreneurs (RSPP), the country’s largest business association. Putin is laying his hopes for disunity inside the United States on the upcoming 2024 presidential election, wishing it spreads conflict among the Western powers. Putin is also encountering challenges with Turkish President Recep Tayyip Erdogan, who is keen to host Russian President Vladimir Putin and persuade him to return to the abruptly canceled “grain deal.” 

During the Georgian war in 2008, Erdogan was cautious, seeking primarily to ensure that the Baku–Tbilisi–Ceyhan oil pipeline remained intact, and that Batumi was off-limits to Russian intervention. Today his main goal in the Caucasus is set on “strengthening its alliance with Azerbaijan, and Russia’s dominance over the region was damaged in the fall of 2020, when Armenia was defeated in the Second Karabakh War,” according to the Russian publication Kommersant. In a Svobada blog last week, one writer suggested that ceasefires have proven unreliable in managing conflict and that “Georgia feels compelled to minimize the risks inherent to the “hybrid peace” with Russia,” with Moscow’s maintaining military groupings in Abkhazia and South Ossetia. 

Baev says this risk avoidance translates not only into abstention from condemning Russia’s aggression against Ukraine but also into profiteering from the war by keeping trade channels open for sanctioned goods and Russian tourism in Georgia. He adds that various business connections with Russia inevitably involve the export of corruption, which distorts Georgia’s democratic institutions and compromises its official course set on transatlantic integration. “Instead, rapprochement with China has been cultivated, and the recent week-long visit of Prime Minister Irakli Garibashvili culminated with a meeting with President Xi Jinping and the signing of a treaty on strategic partnership.”

The Georgian war illustrates the long-term consequences of Russia’s heavy-handed military actions intended to dominate neighboring states and restore the Russian Empire. At the same time, it also indicates that even minor Western support for the regime in Tbilisi can deter the Russian military from further annexation of Georgian provinces. Ukraine is better prepared going into the fall season to stand up to Russian forces. With various types of assistance from the international community, Kyiv’s prospects for defeating Russian imperialism and militarism in Europe remain a realistic goal.          

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

In our first article on Special Counsel Jack Smith’s June 2023 Indictment of former President Donald Trump, we discussed the illegal search of Mar A Lago, and the necessity for the suppression of all evidence seized in the raid as illegally obtained “fruit of the poisonous tree.”  In our second, we examined the interaction between the Espionage Act, and the Presidential Records Act, as well as the potential defense that the former President had legal possession of the allegedly classified documents recovered during that illegal search and seizure.  In our third article, we reviewed the very serious possibility that Special Counsel Jack Smith and his team have engaged in a pattern of violating the attorney-client privilege rights of the accused, including former President Trump. 

Today, we consider the new allegations added to the original indictment on July 27, 2023, when Special Counsel Jack Smith filed a Superseding Indictment against Trump, his co-defendant and Aide, Walter Nauta, and now adding Carlos De Oliveira, the Property Manager for Mar A Lago.  The Superseding Indictment can be viewed here.  

The first question many people may have, is whether or not the Special Counsel can provide additional allegations and add charges at this stage.  The answer is – he sure can. As described by Washington DC lawyers Burnham & Gorokhov, “(t)echnically speaking, an indictment cannot be ‘amended’ once it has been returned by the grand jury, because that would violate the defendant’s Fifth Amendment right to be indicted by a grand jury.  However, it is also true that prosecutors do frequently alter the crimes charged, or even add new charges, during the course of a criminal proceeding. Prosecutors accomplish this by filing what is called a ‘superseding’ indictment. A superseding indictment is just like any other indictment, and it must be obtained the same way as the original indictment—through a grand jury. The superseding indictment can include different charges, new charges, or add new defendants. Once the grand jury returns a superseding indictment, the superseding indictment replaces (supersedes) the original indictment.”  

However, as with so many aspects of Special Counsel Jack Smith’s investigation and indictment of the former President, a question of legal propriety and fair dealing has arisen regarding the Superseding Indictment.  According to the Washington Post, “(Florida Federal) Judge Aileen M. Cannon..asked federal prosecutors to explain the use of grand juries in Florida and Washington in the classified documents case against Donald Trump even though charges were filed in South Florida…Cannon…posed the question in a court filing…and told federal prosecutors to respond…’The response shall address the legal propriety of using an out-of-district grand jury proceeding to continue to investigate and/or to seek post-indictment hearings on matters pertinent to the instant indicted matter in this district,’ Cannon wrote.”

Apparently, “(f)or many months, Justice Department prosecutors had questioned witnesses in the Florida case before a federal grand jury in Washington. The secret proceedings yielded much of the evidence at the crux of the case. But in May, the grand jury activity appeared to continue at a federal courthouse in Miami. Ultimately, prosecutors filed charges in a West Palm Beach courthouse — a courthouse in the same district as Miami and the area where Mar-a-Lago is located…Prosecutors said in a court filing…that they continued to use the grand jury in Washington after they initially charged Trump in June to investigate alleged instances of obstructing the investigation..’The grand jury in this district and a grand jury in the District of Columbia continued to investigate further obstructive activity, and a superseding indictment was returned on July 27, 2023,’ prosecutors wrote in the filing.” 

In other words, “Smith’s team used a grand jury in Washington to continue gathering evidence after it had already indicted Trump in Florida using a grand jury in Miami.”  Is this unusual?  Smith is a Special Counsel, and has jurisdiction to bring charges against the former President in any jurisdiction in which criminality may have occurred.  Thus, he can use more than one Grand Jury in more than one location to investigate charges against Donald Trump.

What is unusual though is the use of a Grand Jury in Washington to continue investigating crimes that allegedly occurred in Florida, and are the subject of an indictment brought by another Grand Jury in that state. As described by Yahoo! News, “(t)he involvement of multiple grand juries is an issue raised by Trump’s lawyers as a potential line of attack against the prosecution because there are rules that limit how and where the government can use them. Cannon’s order puts Smith on the spot early on to explain the process.”

Turning to the new allegations, it should be noted that the Superseding Indictment corrects a deficiency in the original indictment.  As we observed in our article of July 12, 2023, Trump was charged with possession of 31 classified documents (out of the 102 allegedly classified documents recovered during the raid on Mar A Lago).  The original indictment also described two conversations that Trump had with persons who did not have security clearances, in which he is alleged to have brandished classified documents. One was with a writer, publisher and several members of his staff regarding a “Plan of Attack” prepared for Trump by the Department of Defense; the other with a representative of his political action committee regarding a map related to a military operation.  We noted then that “a review of the 31 documents which form the basis for each individual count does not clarify which documents are the basis for the two disclosures described…(n)ot a single one of the documents is described as either a ‘Plan’ or a ‘Map.'”

Perhaps Jack Smith read our article; the July 27 Superseding Indictment has added a 32nd document described as the “Plan of Attack” referenced in the alleged disclosure to the writer and publisher.  To date, however, the map described in the second conversation appears to remain unavailable.

Most of the latest allegations involve the new defendant, Carlos De Oliveira.  ABC News describes the timeline of his involvement as follows; “June 22, 2022 – After observing security footage near the storage room in which classified information was found, the Justice Department sends Trump’s lawyers a draft grand jury subpoena for some security footage from cameras near the storage room at Mar-a-Lago…June 23, 2022 – Trump and De Oliveira speak on the phone for 24 minutes…June 24, 2022 – Nauta is told by a coworker that Trump wants to see him. Less than two hours later, Nauta changes his travel schedule to go to Palm Beach, Florida… Nauta and De Oliveira are also in touch that day with each other and an unnamed employee who is identified by Smith’s office as the director of information technology at Mar-a-Lago…June 25, 2022 – De Oliveira shares with (an unindetified) Mar-a-Lago employee that Nauta wanted to speak with Mar-a-Lago’s director of IT to see ‘how long camera footage was stored’…Shortly after arriving in Palm Beach, Florida, that evening, Nauta meets with De Oliveira at Mar-a-Lago, where they go to the security booth where surveillance video is displayed on monitors…June 27, 2022 – De Oliveira walks to the IT office where the director of information technology is working…De Oliveira asks how many days the server retains footage, to which the IT director responds he believes it is ‘approximately 45 days’…De Oliveira says ‘the boss’ wants the server deleted, to which the IT director says said he wouldn’t know how to do that and does not believe he has the rights to do that. The IT director tells De Oliveira that De Oliveira would need to reach out to another employee who is supervisor of security for Trump’s business organization… De Oliveira (then) texts Nauta…De Oliveira walks through bushes along the northern edge of the Mar-a-Lago property to meet Nauta on the adjacent property….Trump (then) calls De Oliveira and they speak for approximately three and a half minutes.” 

Based upon these allegations, Trump, Nauta and De Oliveira are all charged with “Conspiracy to Obstruct Justice,” among other charges.   The Superseding Indictment alleges the three “did knowingly combine, conspire, confederate, and agree with each other…to engage in misleading conduct toward another person and corruptly persuade another person to withhold a record, document, and other object from an official proceeding,” the purpose being “to keep classified documents (Trump) had taken with him from the White House and to hide and conceal them from a federal grand jury.”

These activities sound quite nefarious as they are laid out in the Superseding Indictment.  But upon examination of the details, the indictment fails to specify that a criminal conspiracy actually occurred.  Instead, the allegations contained in this Indictment lead to a series of questions;

 – At no time is the substance of any calls between Trump, Nauta and De Oliveira revealed.  What did they talk about?  While Smith is relying upon the timing of the calls, which would appear to occur just before or after certain actions are taken, there is no indication of how many calls occur between these parties in a given day, and what the conversation between these parties consisted of. 

 – Who is “the boss?”  We’re supposed to assume it’s Trump, but to De Oliveira, Nauta could have been  considered his “boss.” 

 – De Oliveira asks about deleting Security footage from the camera, and is told to speak with the security supervisor.  Did De Oliveira then go and speak with that individual? Did Nauta?  If not, why not?  The Indictment is silent on these issues.

We can answer one additional potential question – was any Security footage deleted?  According to the Superseding Indictment, “(i)n July 2022, the FBI and grand jury obtained and reviewed surveillance video from The Mar-a-Lago Club.” Trump himself states that “Mar-a-Lago security tapes were not deleted…(t)hey were voluntarily handed over to…Jack Smith. We did not even go to court to stop them from getting these tapes. I never told anybody to delete them.” 

Thus, it is clear that no Security footage was ever erased.

Since Trump, Nauta and De Oliveira are charged with Conspiracy, the footage need not have been actually destroyed for the crime to have occurred.  It’s the agreement between the three of them to attempt to keep evidence from the Grand Jury that would be the crime.  “Legally, a Conspiracy exists when 2 or more persons join together and form an agreement to violate the law, and then act on that agreement…only if the government can prove that those involved entered into some agreement to commit the crime and that there was some overt act committed after the agreement was reached to help it succeed. Many times this ‘agreement’ will be proven by circumstantial evidence. For example, if it can be shown that a participant is receiving some direct benefit from the illegal activity, this is a good indication that the person is a part of the Conspiracy.” 

It is unclear, at best, what benefit any of these three received from this alleged conspiracy.  Further, as noted above, while circumstantial evidence is admissible, unless either Nauta or De Oliveira, or even Trump himself, tells the trial jury whether or not instructions were given to erase the Security footage, that jury can only speculate on what all of these phone calls and meetings have to do with De Oliveira’s question to the IT Director.

But more likely than not, the indictment of Nauta and De Oliveira are intended to force them to testify against Trump in exchange for a plea deal. Before that happens, however, Special Counsel Smith has to provide the Court with legally sufficient allegations of fact – not a series of events that may or not be connected.

Under Fed. R. Crim. P. 7(c)(1) “The indictment or the information shall be a plain, concise and definite written statement of the essential facts constituting the offense charged.”   As you read the allegations made against Donald Trump, Walter Nauta and Carlos De Oliveira in the Superseding Indictment, ask yourself this one crucial question – do you think these allegations sufficiently state a “plain, concise and definite” case of criminal conspiracy?

While you are thinking about the answer to that question, ask yourself another; Doesn’t this prosecution seem like a lot of time and effort to recover 102 documents from someone who has a legitimate argument that he had a legal right to possess those documents?

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

Over the last two decades the US and Chinese militaries prepared for potential kinetic conflict. The United States, informed by events in the Middle East and 9/11, has focused its efforts and resources on defending against a terrorist attack and performing counterinsurgency operations in Afghanistan and Iraq. China followed a different route. Beijing’s military policy calls for modernization of the People’s Liberation Army (PLA) and restructuring of its forces to handle a regional conflict, most likely one involving the United States. According to the recent RAND study Preparing for Great Power Conflict: How Experience Shapes US and Chinese Military Training, it surmises that “Despite having no combat experience since the 1979 Sino-Vietnamese War, the PLA has conducted an in-depth study of all aspects of the US military’s technological and operational capabilities—including its organization, command and control, logistics, joint operations, and concepts of operation—since the 1990s.” The PLA’s lack of direct modern combat experience means that it is depending heavily on observations of US operations. It may not be enough for the PLA to win a Pacific conflict.

China incorporates what it learns abroad into its military training programs to improve its readiness and performance in a future war. However, the United States has only opposed technologically inferior, non- peer adversaries in recent history, according to the study. Does Beijing’s approach improve its chances for a positive military outcome? The question is particularly relevant today given China’s relations with its neighboring countries and military activities in the South China Sea. The RAND study determined that  the “PLA gains experience through a structured process involving observation of wars and study of military science through a Marxist-Leninist lens, concept development, experimentation, demonstration, and implementation and training across the force.” 

The US military has a mostly indigenous experiential model based on direct combat but, it adds, “indirect experimentation figures more prominently as the global threat picture changes and near-peer adversaries seek to undermine the global security position of the United States.” Over the last two decades both countries’ military experiences raise concerns about the sufficiency of training programs. In this regard, China has an advantage in the focus it applies to concepts and capabilities needed to deter, delay, or defeat a US force entering China’s neighborhood. It stresses the home field advantage. 

In response to Chinese military advances Washington has moved into a reactive mode, in part, due to the high cost of a kinetic intervention. The US is attempting to develop concepts and capabilities that will allow it to alter the equation in Washington’s favor. It possesses adaptive and innovative capabilities that outpace China’s based on its direct experience. The report points out the US military also has a head start over China in operational concepts “stressing networked precision strikes against key systemic nodes.”

The high quality of US military training and its agility to adapt to meet a changing threat environment provides Washington an advantage over the communist giant. RAND says that “Time is an advantage for the United States when it comes to conceptual and functional change in preparing for major power conflict. The PLA’s focus on preparing to fight the United States appears nearly singular in some respects but involves massive revisions of the PLA’s command culture. These revisions must occur in an environment already fraught with changing priorities on other fronts.” To date, the PLA cannot duplicate US efforts. That doesn’t mean the balance cannot change. Chinese training and exercise methodologies, tools, and infrastructure are improving at a rapid pace. To catch up, however, the PLA needs direct kinetic combat experience that it lacks in the current generation. It may be willing to risk regional war to gain it. For the US to maintain an advantage, policymakers and senior warfighters need to expand the intelligence community’s ability to assess PLA readiness for a major power conflict. One key component for Washington is to gain an understanding, from the CCP leadership’s perspective, on how it incorporates kinetic military experience into its decision to employ force. 

Analysts in Washington discuss the possibility of an attack on Taiwan but differ greatly on its likely timing and the type of incursion. Better understanding Chinese policymakers will aid Washington in designing its deterrence approaches for its Pacific operations. Adaptability and innovation are key components in determining if China can win a regional war. It is an area where the US excels. The CCP’s routines and culture are slow to change. It figures prominently in its potential successes. 

The US’ early start on operational concepts, says RAND, stresses networked precision strikes against key nodes in a larger system, although China still has the home field advantage. “US forces and the US defense industrial base supporting them,” it concludes, “have been engaged in joint combat operations on a global scale for three decades and have worked regularly with allies and partners in ways that dwarf the PLA’s experiences with its limited partnerships.” Given Beijing’s domestic and other foreign policy challenges the PLA will need to overcome its inertia to compete effectively in the Pacific against America and its allies. It does not guarantee China will choose to avoid kinetic conflict.  

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

Photo: China bomber during training exercise (China Defence Ministry photo)

There is a central, overarching theme to the seemingly odd actions of the Department of Justice,  the Federal Bureau of Investigation, several state attorneys  general, college administrations, and in the comments (and restrictions on comments) by much of the media.

It is the shared belief of all the above that opposition to progressive policies should be restricted or censored.

This is substantially different than prior periods of vehement political conflict. It is not just the dissenting ideas that are being challenged. It is the very right to disagree at all.

The trend was first noticed in education, predominately at universities, where moderate and especially conservative students were ostracized and penalized for their opposing views. It has now spread into the lower grades, where in some cases public education funds and facilities have been abused to push progressive propaganda.

It metastasized into the media, where anyone objecting to violent riots by left wing extremist organizations such as Antifa and Black Lives Matter were wrongly castigated as racist or fascist. Nonleftist comments were scrubbed out of social media, both by the corporations owning the sites and at the encouragement of federal bureaucracies. Both Presudents Obama and Biden sought to formalize this by developing policies and federal agencies to assault what they considered “disinformation,” meaning anything they disagreed with.

For much of the citizenry, the first inkling of how serious a crisis this had become did not arise until the bizarre reaction of the Department of Justice and the FBI to the objections of parents in Loudon County, Virginia. In the wake of an assault on a young girl essentially resulting from the educational system’s “woke” policies, angry parents were labelled as “domestic terrorists .” 

The use of that term had become a tool in supressing opposition by the Obama Administration to attack veterans, who were prone to more conservative ideas.

Under Biden,  In addition to worried parents, Catholics are now in the cross hairs under this concept due to their beliefs, particularly their objections to infanticide.

Biden’s infamous Philadephia speech, and his owngoing verbal assaults on what he terms  “Mega Maga” voters are manifestations of the theme of no permissible opposition.

Presidents, of course, have always made speeches and comments that push the policies they campaigned for, and against ideas they oppose. What Biden has done, however, is to condemn not just the policies but the individuals, organizations, and the political party that advocate them, and he does so from the White House and in the course of his official duties. That is an open and clear violation of the federal Hatch Act.

Biden is not alone. Boston Mayor Wu has compiled lists of critics and submitted them to her police force. Hunter Biden has threatened former President Trump with legal action if he continues to criticize the Biden family.

Earlier this year, Senator Grassley (R-Ia) noted that he had never observed so much partisan political activity on the part of federal agencies. He emphasized that “It’s clear to me that the Justice Department and FBI are suffering from a political infection that – if it’s not defeated – will cause the American people to no longer trust these storied institutions. It will also threaten our American way of life. Unfortunately, this story of government abuse and political treachery is scarier than fiction.”

His concern us shared by Rep. Rick W. Allen, (R-Ga)who wrote in an Augusta Press article that “During just his first few days in office, President Biden signed a series of unilateral and partisan orders… House Democrats’ top legislative priority, H.R. 1, federalizes elections and tramples on the rights of state legislatures, bodies with the constitutional authority to reform election laws. The bill also outlaws voter verification – despite 74 percent of Georgia voters supporting voter ID – and allows political campaigns to be subsidized with taxpayer dollars. It’s a shameless attempt to keep one party in power.”

Illustration: Pixabay

It is not only the American southwest that has been subjected to storms, China’s leader for life Xi Jinping says he has been relentlessly buffeted by “high waves and dangerous winds” in his attempt to keep the Chinese ship of state righted in turbulent economic times. This year the new Chinese Communist Party (CCP) Central Committee and its Politburo are challenging Xi, despite their belonging to the same faction of the CCP. This summer economic mismanagement and political scandals are plaguing the Chinese leadership in ways that may prevent them from exonerating themselves. 

Xi Jinping lacks formal training in public policy and political economics, but continues to lay down rules for efficient governance, according to Will Wo-Lap Lam of the Jamestown Foundation. He has published several dozen books addressing foreign policy, political administration of government and economic development since assuming the presidency. Lam says “His most famous tome, The Governance of China (习近平治国理政) was translated into a dozen-odd foreign languages and sold a few million copies  as of last month.” More recently, the Water Resources Ministry published a book entitled On Studying and Implementing the Important Discourses on the Management of Water Resources by Xi Jinping. It  proved particularly embarrassing, says Lam, given widespread complaints that the paramount leader had totally mishandled the deluge in Beijing, Tianjin, and Hebei province.

A number of recent events combined to raise the level of domestic discontent across the country. In Hebei Province, over 30 are dead and at least 1 million people left without homes in heavy rains and flooding in the region. The storms, considered the most severe in 140 years, were exacerbated by the surprise lifting of rural floodgates in spillways and reservoirs near Beijing and Tianjin. The government’s intention was to minimize the inundation of the two megacities with a combined population of over 35 million residents. Local party officials and residents downstream of the floodgates are questioning the action which they view as destructive to their local communities. Party Secretary of Hebei, Ni Yuefeng     (倪岳峰) was criticized heavily in Chinese social media for stating that he would do everything possible to reduce “the pressure on Beijing’s flood control and [to] resolutely build a ‘moat’ for the capital.” 

 Slow emergency response teams drew further criticism of Xi’s handling of the flooding. Search and rescue units that were slow to respond resulted in citizen volunteers trying to offer aid. They were prevented from doing much of the work in the worst-hit zones due to a lack of requisite documentation and approvals from Hebei, Beijing, and Tianjin officials.

President, General Secretary of the CCP, and commander-in-chief Xi Jinping neither visited the sites of devastation nor spelled out measures to help flood victims re-establish their livelihoods, according to Lam. The citizenry is calling him cold and heartless amid all the suffering. There is conflicting information out of China reporting that Xi instead was seen participating in a series of informal policy-making sessions with other Politburo members and top advisors in the nearby seaside resort of Beidaihe in Hebei province. This seaside resort town is where CCP leaders as far back as Mao and up to the current CCP leadership have taken their summer swimming vacations. Additional reports in Nikkei Asia say that most of the party elders were avoiding the meetings this year. 

The country’s economy in 2023 is another challenge facing Xi as it is in the most precarious state since the late 1970’s. He also needs to decide how to handle the US-China bilateral relationship and Taiwan. Recently the Japanese Liberal Democratic Party (LDP) sitting vice president made a first-ever trip to Taipei since Tokyo severed relations in 1972. In August, Taiwanese Vice President William Lai is scheduled to visit New York and San Francisco. Lai is expected to run for President of Taiwan. It will be the first time that there are no mainlander candidates running for president of Taiwan. Matters got increasingly worse for Xi Jinping this week when Japan announced the released of treated water from the Fukushima Daiichi nuclear power plant into the sea. China had worked to oppose the release. 

As China abandons the concept of collective leadership and Xi establishes a unipolar rule throughout the country, he places himself in a precarious position. He now has to admit his mistakes in key policy areas including the economy where the real estate market is in a slump. Xi must contain the damage to keep his signature “common prosperity” campaign alive. China may be past the tipping point. 

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

Illustration: Pixabay