Category: Quick Analysis

The U.S. Defense Department has announced that it has adopted a new, classified strategy for countering the effects of unmanned systems, also called “drones.” 

Unmanned systems are increasing in capability and are posing ever-increasing threats to the U.S. and its allies. The Pentagon notes that “Enabled by growing commercial innovation and the increasing sophistication of artificial intelligence, autonomy and networking technology, unmanned systems are fundamentally changing how militaries of all sizes, capacities, and capabilities — as well as non-state actors — achieve their objectives.” 

Air Force Maj. Gen. Pat Ryder worries that drones “..have the potential to pose both an urgent and enduring threat to U.S. personnel, facilities and assets overseas and increasingly in the U.S. homeland,The threats presented by these systems are changing how wars are fought.”

Specific details of The new strategy are classified, but certain threat areas Have been openly discussed.

One effort involves gaining a better understanding of the threats posed by unmanned systems and improving the ability of American forces to detect, track and characterize those threats.  Another aspect of the strategy is to build counter-unmanned system efforts and knowledge into existing U.S. military doctrine, organization, training, materiel, leadership, personnel, facilities and policy. 

The military says it is committed to delivering adaptable counter-UAS solutions more quickly and at scale, including by working more closely with U.S. partners and allies. 

Of note also is that the department, within the strategy, recognizes the vast difference between the low cost of developing and deploying unmanned systems and the high cost the U.S. currently spends to defeat those systems.

The intensive use of drones, highlighted by the fighting in the Russian invasion of Ukraine, illustrates that warfighting is changing more rapidly than it has in decades. U.S. military strategists are seeking to transform based on “lessons learned and a sober assessment of the modern battlefield.”

As a consequence, major changes in arms programs are taking place.

The Army will discontinue development of the Future Attack and Reconnaissance Aircraft at the conclusion of prototyping activities while continuing investment in the Future Long Range Assault Aircraft, and making new investments in UH-60 Blackhawk, and CH-47F Block II Chinook. The Army will phase out operations of systems that are not capable or survivable on today’s battlefield including the Shadow and Raven unmanned aircraft systems. The Army will increase investments in cutting-edge, effective, capable and survivable unmanned aerial reconnaissance capabilities and the procurement of commercial small unmanned systems.

“The Army is deeply committed to our aviation portfolio and to our partners in the aviation industrial base,” said Secretary of the Army Christine Wormuth. “These steps enable us to work with industry to deliver critical capabilities as part of the joint force, place the Army on a sustainable strategic path, and continue the Army’s broader modernization plan which is the service’s most significant modernization effort in more than four decades.”

“We are learning from the battlefield—especially in Ukraine—that aerial reconnaissance has fundamentally changed,” said the Chief of Staff of the Army, General Randy George. “Sensors and weapons mounted on a variety of unmanned systems and in space are more ubiquitous, further reaching, and more inexpensive than ever before…”

It’s not only the American armed forces that are taking note. The Australian Army Research Center explains that “Overall, drones have been shown to provide lethality at range, low cost, and with economy of effort that can be used in the air, land and sea. The ability to see farther accurately, coupled with cost savings, has made UAVs indispensable for both Ukrainian defensive and offensive operations. Apart from the overwhelming use of drones in the air, the war in Ukraine unveiled successful use of the naval drones, and the infancy of the land drones for various purposes.”

Photo: Army Spc. Kevin Jiminez operates the “Dronebuster” during counter-unmanned aerial systems training near Pabrade, Lithuania

In its dramatic reach for global dominance, China has ignored both geographical reality and global agreements to pursue territorial gains.  While Beijing’s activities in the Indo-Pacific region have been noted, particularly in its aggression against the Philippines and Taiwan, its threatening moves in the Arctic have received lesser attention. Combined with Russia’s massive military presence in the far north, the U.S. and its allies are at an increasingly dangerous disadvantage.

There is no governing treaty, as there is in Antarctica, which mandates that the area be used only for peaceful purposes.

The Arctic Institute reports that “While China is located 1500 kilometers south of the Arctic Circle, Beijing is evidently interested in the region in terms of economic activities, international partnerships, scientific research, regional governance, and demonstrating the nation’s return to its historical role as a great power. China’s role in the Arctic continues to be a significant development in international politics. At the strategic level, there have been instances of Sino-Russian joint military maneuvers around the Arctic.”

Both the United States and Russia have taken note. Russia maintains that key portions of the region, including the Northern Sea Route, are part of its “Strategic patrimony.” It backs up that claim with an overwhelming military advantage in the area.

A Chatham House analysis warns that “Russia’s seeks consistent control over foreign military activity in the Russian Arctic, and ensured access for Russian armed forces, particularly the Northern Fleet…Parts of the armed forces, such as the Arctic Brigade, are now Arctic-capable and have developed concepts of operations tailored to that environment. The Northern Fleet has been repurposed with the Arctic environment in mind, and has been provided with Arctic-specific military technology and training.”

Russia’s military activities in the region are long-standing, but China’s intense interest in new and growing.

A Pentagon review featuring Iris A. Ferguson, the deputy assistant secretary of defense for Arctic and Global Resilience, speaking at Center for Strategic and International Studies noted that “The Arctic strategic environment is changing profoundly, and the United States must pay greater attention and dedicate more resources to this crucial area.”

Ferguson stressed that “China is, by no means, an Arctic nation. But Chinese leaders see the region as a new crossroads of the world, a new source of raw materials and new avenues for manifesting its growing power.”

She pointed out that China is working closely with Russia in its attempt to be seen as an Arctic power. Putin is investing heavily on military and economic strategies in the Arctic. “We’re seeing Russia continue to have immense focus on the Arctic region… we still see them … heavily focused on the region.” 

Ferguson reports that “Even more disturbing is the increasing levels of collaboration between Russia and China especially in the military domain, she said. Russia and China exercised together in the Bering Strait in summer of 2023. “Just this past summer, right after we released our department strategy, we saw a joint bomber patrol off of the coast of Alaska.There has also been increasing cooperation between the Chinese and Russian coast guards in the region.

The Scandinavian Journal of Military Studies illustrated that true Arctic regional nations are substantively worried. “China’s Arctic strategy follows what we describe as a ‘comprehensive approach’ consisting of four main arms: political, economic, scientific, and military. This strategy is designed to advance the party-state’s influence in the Arctic through simultaneously molding discourses and challenging legal concepts of the Arctic (political), boosting its economic interests in the Arctic (economic), fusing civil-military scientific and technological innovation (scientific), and preparing for a military presence in the Arctic (military). Finally, the article concludes that as the significance of the Arctic for China’s long-term security strategy is guided by Xi Jinping’s thought on total national security, future analyses of China’s Arctic intentions should pay particular attention to this evolving concept.”

Photo: Nearly 800 paratroopers assigned to the 2nd Infantry Brigade Combat Team (Airborne), 11th Airborne Division, jump into Malemute Drop Zone, Alaska, Oct. 15, 2024.

Amid the nuclear challenges facing America, General Anthony J. Cotton, who leads the U.S. Strategic Command, has stressed the importance of readiness and adaptability in U.S. nuclear forces. The Nuclear Posture Review, a key component of national defense planning, highlights the urgency of modernizing the nuclear triad — bombers, submarines and intercontinental ballistic missiles — as well as the systems that ensure their cohesion and reliability. Cotton affirmed the NPR’s guidance, stating, “We cannot remain stagnant. Our modernization programs must include on-ramps and off-ramps to adjust to new challenges.” 

 Central to this modernization effort is the NUclear COmmand, COntrol, and Communications (NC3) system, which serves as the backbone of strategic deterrence. The NC3 infrastructure ensures that the president can communicate securely with nuclear forces, providing unambiguous orders and maintaining control under any circumstances.  

Cotton described the NC3 system as enabling three essential actions: deciding when an order is valid, ensuring the authenticity of that order and confirming when operations must cease. “NC3 enables us to decide, direct and confirm every step of a nuclear operation,” he explained. “It ensures connectivity with the president and validates every order as authentic.” 

Despite its importance, the NC3 system remains a vulnerability due to its Cold War-era architecture. Cotton acknowledged that while the system has performed reliably for decades, it now faces significant challenges from evolving cyber threats, space-based vulnerabilities and its own aging infrastructure. While he agreed that modernization efforts must integrate advanced technologies — such as artificial intelligence — to process massive amounts of data efficiently, Cotton stressed that human oversight remains non-negotiable. “AI supports decision-making, but humans will always stay in control,” he declared. 

The challenges of modernization extend beyond technology. Funding and integration represent obstacles as well. The NC3 enterprise encompasses more than 200 interconnected systems across multiple services and agencies, requiring seamless coordination to ensure operational continuity. Cotton highlighted the complexity of this task, noting that each element must align with the overarching strategy while maintaining flexibility to adapt to emerging threats. He emphasized the need for collaboration, “Modernization is about ensuring continuity, building a road map and aligning near-term actions with long-term goals.” 

This complexity underscores the vital role of the NPR and the NDS in shaping modernization priorities. Both documents emphasize that America must sustain a safe, secure and effective nuclear deterrent to meet the challenges posed by adversaries. These assurances are particularly important for maintaining the credibility of extended deterrence commitments to allies like Japan and South Korea. 

The modernization effort also comes with significant financial implications. Critics often cite the costs of nuclear modernization, projecting expenditures of over $1 trillion over the next 30 years. However, Cotton provided a clear perspective on this issue, arguing that modernization represents only 4% of the defense budget. “Modernizing our forces today costs far less than facing the consequences of unpreparedness,” he argued. The four star also emphasized that the investment covers all three legs of the nuclear triad as well as the NC3 system, making it essential for maintaining strategic stability. 

As the United States navigates this modernization process, lessons from adversaries further underscore the importance of maintaining a credible deterrent. Russia’s saber-rattling during the Ukraine conflict and its continued nuclear threats reveals the coercive power of nuclear capabilities. And China’s growing arsenal highlights the need for the United States to adapt its strategies to deter both conventional and nuclear aggression. Cotton stressed that U.S. forces must be prepared to prevent conflicts from escalating to the nuclear level, stating that ” must ensure that no conventional conflict escalates into nuclear war.” 

Cotton’s vision for STRATCOM reflects this urgency. As the command enters its “year of acceleration,” he outlined a forward-looking strategy to address immediate needs while building a foundation for long-term success. “We’ve laid the foundation for modernization and taken action to address immediate needs. Now we must accelerate progress to meet the challenges ahead,” he said. His approach includes fostering collaboration across agencies, leveraging technological advancements and engaging with allies to strengthen collective defense. 

While he addressed immediate operational challenges, Cotton also called for a renewed focus on cultivating the next generation of strategic thinkers. He emphasized the importance of blending traditional nuclear theory with contemporary insights to address today’s unique threat environment. “Theoretical foundations remain important, but we need new thinking to address the interwoven dynamics of alliances, economic interdependence and technological advancements,” he explained. His remarks emphasize a multidisciplinary approach to strategic deterrence — one that accounts for the complexities of a multipolar nuclear age. 

Cotton’s insights highlight the stakes of modernizing U.S. nuclear forces in an increasingly competitive and unpredictable world. The integration of advanced technologies, the reinforcement of NC3 infrastructure and the maintenance of strong alliances form the bedrock of this effort. At its core, modernization ensures that the Defense Department retains a credible deterrent capable of meeting any challenge. “Deterrence is about producing effects that meet the president’s objectives,” Cotton concluded. 

A Pentagon release notes that “The United States stands at the crossroads of strategic competition. The modernization of its nuclear forces represents not just a defense imperative but a critical investment in global stability.”

Photo: A ballistic missile system attached to a brigade under the PLA Rocket Force is well-prepared during a night training exercise in early March, 2020. (eng.chinamil.com.cn/Photo by Zhang Feng)

Russia has the world’s largest nuclear arsenal, China’s equivalent will soon rival America’s. North Korea now has the ability to target mainland USA, and Iran is about to have atomic weaponry. Meanwhile, Washington’s strategic deterrent is showing its age.

A Heritage study argues that “During the Cold War, our nuclear arsenal served as the ultimate guarantor of American freedom and prosperity. Today, that arsenal is aged; the newest warhead is over 30 years old. Many are decades older. The United States is now in the 13th year of a nuclear modernization program designed to update and modernize America’s strategic deterrent. During those 13 years, the number of new nuclear warheads the United States has built is zero. In the last 12 months, China built 100 nuclear warheads. And it shows no signs of slowing down.”

The Nuclear Matters Handbook notes that “he average age of U.S. nuclear weapons is 40 years old at life extension or planned retirement—more than twice the original design lives. All life-extended weapons in the stockpile will reach the end of their planned lifetimes by mid-century, which in some cases is more than three times as long as they were designed to operate. Some components of those life-extended weapons (e.g., plutonium pits) have been reused as-is, meaning that those components have been in the stockpile for many decades beyond their originally projected lifespans, and will remain in the stockpile until they can be replaced. Similarly, U.S. nuclear delivery systems have all been sustained beyond their design lives. By 2035, 100% of U.S. nuclear delivery systems will have exceeded their design lives by an average of 30 years. By the early 2040s, 100% of U.S. nuclear delivery vehicles will have reached end of life. At retirement, both the air-launched cruise missile (ALCM) and the Minuteman III ICBM will be over 50 years into their 10-year design life. The Ohio-class SSBN is already beyond its projected lifetime, and the B-2A bomber and the F-15E dual-capable aircraft will both be approaching 40 years old before they are retired. The B-52 bomber will be about 100 years old when it is finally scheduled to retire in the mid-2050s. All current U.S. ballistic missile warheads were designed and built in the 1970s and 1980s, and their designs addressed specific Cold War problems from the 1960s. In the time of high stockpile numbers, U.S. nuclear tactics emphasized overwhelming adversary defenses using many weapons to defeat a single target and using as much yield as possible given space and weight constraints.”

Defense officials are clearly worried.

Gen. Anthony J. Cotton, commander of the U.S. Strategic Command, outlined the crisis while speaking at the Center for Strategic and International Studies. He noted the critical role of nuclear deterrence and its supporting platforms, particularly the Nuclear Command, Control and Communications system, in securing U.S. strategic dominance and maintaining global stability. 

In a conversation with Aerospace Security Project Director Kari Bingen, Cotton explained that contemporary threats are markedly different from those envisioned by strategic planners when nuclear modernization efforts began over a decade ago. He noted that these efforts — originally designed amid low-intensity conflicts like the war on terror — now require significant adaptation to address the increasingly aggressive postures of adversaries like Russia and China.  

“The world has changed since nuclear modernization efforts began,” he said. “Our posture must align with today’s reality, where nuclear weapons are foundational to adversaries’ strategies.” Cotton’s observation reflects a shift in global power dynamics, where nuclear capabilities are not merely a deterrent but a central element of adversarial strategies to challenge American interests. 

“Russia’s evolving nuclear doctrine provides an example of these shifting dynamics. Recent statements from Russian President Vladimir Putin signal an expanded nuclear strategy, one that lowers the threshold for nuclear use and targets NATO alliances more directly. This shift aligns with broader Russian efforts to bully Western nations into withdrawing their support for Ukraine. Simultaneously, China continues its rapid expansion of nuclear capabilities while resisting international calls for transparency. Together, these adversaries present the Defense Department with an unprecedented “dual peer” challenge. The 2022 National Defense Strategy warns that simultaneous threats across multiple theaters could test the United States’ ability to respond effectively. 

The article concludes tomorrow

Photo: Soldiers assigned to a brigade under the PLA Rocket Force use crane to hoist and load a ballistic missile system onto a missile launching truck during a night training exercise in early March, 2020. (eng.chinamil.com.cn/Photo by Zhang Feng)

In the 1980’s, I had the opportunity to sail aboard the Northwind, a U.S. Coast Guard icebreaker.  Those assigned to modern icebreakers face a challenge more bleak than the icy weather: being dramatically outnumbered by Russians determined to control the region.  Moscow has major forces, including at least 42 icebreakers to America’s two. 

The Pentagon notes that “Russia, which accounts for a broad swath of Arctic Ocean coastline has increasingly sought to extend its influence in the region. China too, has increasingly sought to extend its influence in the region, declaring itself to be a ‘near-Arctic’ nation despite having no Arctic coastline.”

Russia has continued its expansion and modernization of Arctic military infrastructure. “The Arctic has long played a significant role in Russia’s security approach and economic calculations, and today is no exception,” said Amanda Dory, the acting undersecretary of defense for policy, at a recent  Wilson Center gathering about the recently announced revamp of DOD strategy in the High North and why it is important for defense. 

“Russia’s Arctic military capabilities have the potential to hold the U.S. homeland, as well as allied and partner territories, at risk.” 

China and Russia are growing together and have held combined naval and airpatrols in the region. DOD continues to monitor this cooperation very closely.   This was rather stunningly emphasized by the recent combined Moscow-Beijing bomber flight off the coast of Alaska.

The plan states that the United States seeks an Arctic region that is peaceful, stable, prosperous, and cooperative. In support of this national-level objective, DoD, in cooperation with Allies and partners2, “will pursue an end state that preserves the Arctic as a stable region in which the U.S.  homeland remains secure and vital national interests are safeguarded.”

It directs that activities in the Arctic will be calibrated to reflect a “monitor-and-respond” approach that is underpinned by robust intelligence collection capabilities, security cooperation  with our regional Allies and partners, and the deterrent value of DoD’s ability to deploy the Joint  Force globally at the time and place of our choosing. This strategy guides DoD’s efforts to build and sustain this monitor-and-respond approach to the Arctic. Implementing this strategy will enable DoD to achieve our desired end state for the region, aligning with efforts to strengthen  homeland defense, safeguard U.S. interests, and improve interoperability with Arctic Allies and  partners while preserving focus on the pacing challenge of the People’s Republic of China (PRC) globally.  

Read between those lines: “monitor and respond,” “Allies,” and “gathering intelligence” are all a way of admitting that the U.S. is far inferior militarily to our enemies in the High North.

Liselotte Odgaard, a senior fellow at the Hudon Institute noted earlier this year in a Foreign Policy

“it is clear that the [NATO] alliance remains ill-prepared against Russia’s military capabilities in the Arctic…” 

While the addition of Finland and Sweden is seen by many as strengthening the west’s capabilities, the reality is that their forces are concentrated on deterring the Kremlin’s threats in the Baltic region.

Odgaard stresses that “No NATO member state has ice-strengthened ships with both anti-aircraft and anti-submarine capabilities. The United States, Canada, Denmark, Finland, and Sweden have prioritized capabilities designed for other theaters, such as the Indo-Pacific and the Baltic Sea regions. Iceland… has no standing army, only operates coast guard vessels. Norway has ice-strengthened coast guard vessels, but they are not designed for military operations…Russia’s nuclear submarines, which are capable of launching an attack on North America, can travel from the Barents Sea through the Bear Gap …without being detected.”

This is a dramatic, dangerous and vast threat to the U.S. homeland, one that cannot be resolved by mere words and plans.

Proposals for radical alterations in the way Americans vote are dangerous concepts that would have dramatic consequences for the nation and its Constitution. Some, such as ranked choice voting, are an unblushing bid to prop up fringe, leftist candidates.  Others. if adopted, would essentially disunite the nation and overturn its Constitution.

As they consistently have after each election loss, Democrat spokespeople have flooded the airwaves with complaints about the Electoral College.  Why, they ask, can’t we have a “popular vote,” and let it be done with. Since the Electoral College process is part of the original design of the U.S. Constitution, it would be necessary to pass a Constitutional amendment to change this system. The National Archives notes that over the past 200 years more than 700 proposals have been introduced in Congress to reform or eliminate the Electoral College. There have been more proposals for Constitutional amendments on changing the Electoral College than on any other subject. 

The answer is as simple as the name of the country: The United States of America. The incredibly successful nation created almost two and a half centuries ago was a union of separate states. Fresh off of dealing with a monarch, it was intentionally set up that way to both prevent the possibility of having an all-powerful dictator, and to prevent larger states from bullying smaller ones.

Abolishing the electoral college would essentially disenfranchise smaller states from having any say in the presidency.  Indeed, even less populated areas of large states would lose influence. A collection of large cities, (New York, Los Angeles, Chicago, Houston, Phoenix, Philadelphia, San Antonio, San Diego, Dallas, Austin, Jacksonville, etc.) would decide the outcome in who gets the White House. 

Considering how badly many of those urban centers are run, that would not bode well for the future of the country! Beyond the practical policy implications, it would alienate the populations of those not living in California, Texas, New York, Florida, Pennsylvania, Illinois, who would, for the most part, be reduced to bystanders in the race for the only nationally-elected position.

A Heritage study analyzed the concept of a “National Popular Vote” (NPV) this way:

“The National Popular Vote (NPV) plan is the latest in a long line of schemes designed to replace the Electoral College. Imbued with the ideals of this nation’s Founders, the Electoral College has proved itself to be both effective in providing orderly elections for President and resilient in allowing a stable transfer of power of the leadership of the world’s greatest democracy. Therefore, while it would be a mistake to replace the Electoral College, replacing this system with the NPV would be a disaster. The NPV would devalue the minority interests that the Founders sought to protect, create electoral administrative problems, encourage voter fraud, and radicalize the U.S. political system. It also would likely violate the U.S. Constitution’s Compact Clause while directly contravening the Founders’ view of federalism and a representative republic. In an age of perceived political dysfunction, effective policies already in place—especially successful policies established by this nation’s Founders, such as the Electoral College—should be preserved.”

Trent England, writing for the National Conference of State Legislatures outlined key reasons for the institution: “At the Constitutional Convention, the primary concern of delegates opposed to direct election was that big states would dominate presidential politics. By using a two-step election process, the Electoral College prevents one region, or a handful of major metropolitan areas, from controlling the White House. Support must be geographically distributed around the country in order to win enough states to capture an electoral vote majority. This was particularly important after the Civil War. The nation remained divided, and Democrats became dominant in the south. A combination of intense popularity with some voters and violent suppression of others allowed Democrats to receive the most popular votes in 1876 and 1888 even though they lost the Electoral College and thus those elections.”

Eliminating the Electoral College would be a disaster for the United States/

In August of 2024, we discussed the US Supreme Court’s decision in Trump v. United States. We described the three tiered system enunciated by Chief Justice Roberts to determine whether or not the actions taken by the President of the United States are entitled to immunity from criminal prosecution or not.

The first tier are acts within the President’s constitutionally mandated authority which are subject to “absolute immunity.”  The next are acts that may have “presumptive immunity,” and are subject to examination with evidence that rebuts the presumption of immunity.  The third are acts which are unofficial, and which enjoy no immunity. 

In September, we also discussed the effect this decision should have on the New York County criminal case currently pending against President-elect Trump before Judge Juan Merchan.  We cited to a CNN report, which described the evidence used against Donald Trump at the trial of that matter: “Trump’s lawyers pointed to testimony at trial – including from White House officials Hope Hicks and Madeleine Westerhout – they argued should not have come before the jury…'[a]ll of Hicks’s testimony concerning events in 2018, when she was serving as the White House Communications Director, concerned official acts based on [Presidential] authority for which President Trump is entitled to absolute immunity,’ Trump’s attorneys argued. ‘[the Supreme Court’s ruling] specifically forbids prosecutors from offering ‘testimony’ from a President’s ‘advisers’ for the purpose of ‘probing the official act.’” 

Sure enough, as Chief Justice Roberts stated in the Presidential Immunity decision,  “[a]llowing prosecutors to ask or suggest that the jury probe official acts for which the President is immune would thus raise a unique risk that the jurors’ deliberations will be prejudiced by their views of the President’s policies and performance while in office. The prosaic tools on which the Government would have courts rely are an inadequate safeguard against the peculiar constitutional concerns implicated in the prosecution of a former President.” 

At the time, we stated that “Judge Merchan allowed testimony regarding Donald Trump’s official acts as President, acts which enjoy absolute immunity and which cannot be used against him, or even be entered into evidence in a criminal trial, a situation which could have been avoided had Judge Merchan delayed the trial until he’d received the guidance of the US Supreme Court.”  Nonetheless, we predicted that Judge Merchan “will find a way to justify his actions once again, and let stand the unlawful conviction of former President Donald Trump.” 

You know how much we hate to say we were right…but…we were right.

“This Court…finds that the evidence related to the [President-elect’s] claims relate entirely to unofficial conduct and thus, receive no immunity protections,” Judge Merchan wrote in his December 16, 2024 decision. “Further, even if this Court were to deem all of the contested evidence…as official conduct falling within the outer perimeter of Defendant’s Presidential authority, it would still find that the People’s use of these acts as evidence of the decidedly personal acts of falsifying business records poses no danger of intrusion on the authority and function of the Executive Branch, a conclusion amply supported by non-motive-related evidence.”  In so ruling, the Court denied Donald Trump’s motion to dismiss his New York County conviction. 

Let us examine these findings, in light of the evidence admitted at the President-elect’s trial, and then compare that evidence to the acts granted absolute immunity by the US Supreme Court.

In his decision, Judge Merchan discusses the testimony of Hope Hicks, who served as the Communications Director for the Trump White House. “Defendant argues that in her roles at the White House, any communications between Ms. Hicks and Defendant must receive absolute immunity…as Defendant’s ability to speak freely to Ms. Hicks was a core function of the Executive. According to Defendant, because Ms. Hicks wielded executive power on his behalf, authority that exists pursuant to Article II of the Constitution, any communications [President Trump] had with [Hicks] are subject to absolute immunity,” the Court wrote.

Judge Merchan also noted that “[t]he People argue that the communications Defendant had with Ms. Hicks…constitute unofficial acts not entitled to any level of immunity.”

In his inevitable agreement with the arguments presented by Manhattan DA Alvin Bragg’s office, Judge Merchan wrote “Defendant’s argument that any communication he had with Ms. Hicks is subject to absolute immunity by virtue of the position she held in the White House is mistaken…the President himself may speak in his unofficial capacity as a candidate or party leader, and certainly he can do so in his private capacity as well. Any argument that private conduct transforms into official conduct by communicating about the same to an individual with a particular title is without merit.”

Thus, it is Judge Merchan’s position that the conversations Donald Trump had with his Communications Director are not entitled to immunity, even though those discussions were held at the White House, while Donald Trump was serving as President of the United States, merely because those discussions were not related to official Executive Branch activities.

Sounds possibly reasonable – until you examine the Presidential Immunity decision more closely.

In September, we wrote that “the statement made by Chief Justice Roberts in his majority opinion in the Presidential Immunity case [is significant]; ‘Presidents cannot be indicted based on conduct for which they are immune from prosecution…[t]estimony or private records of the President or his advisers probing such conduct may not be admitted as evidence at trial.’”

This statement by Chief Justice Roberts points to a blanket immunity for ANY discussions had between the President and his advisors, regardless of the nature of those communications.

Further, we noted that the Supreme Court issued the following warning: “[t]he government…contends that a jury could ‘consider’ evidence concerning the President’s official acts ‘for limited and specified purposes,’ and that such evidence would ‘be admissible.’”  In rejecting that argument, Chief Justice Roberts states “[t]hat proposal threatens to eviscerate the immunity we have recognized. It would permit a prosecutor to do indirectly what he cannot do directly – invite the jury to examine acts for which a President is immune from prosecution to nonetheless prove his liability on any charge.”

Chief Justice Roberts went on to discuss the basis for his ruling: “If official conduct for which the President is immune may be scrutinized to help secure his conviction, even on charges that purport to be based only on his unofficial conduct, the ‘intended effect’ of immunity would be defeated…[t]he President’s immune conduct would be subject to examination by a jury on the basis of generally applicable criminal laws. Use of evidence about such conduct, even when an indictment alleges only unofficial conduct, would thereby heighten the prospect that the President’s official decision making will be distorted.” (Emphasis added.)

The heart of the question is whether or not the President’s conversations with his Communications Director, or any other member of his staff, constitute official acts, even if those discussions are about issues not directly related to their work at the White House.  Judge Merchan believes those communications can be used as evidence and are not subject to immunity.

But this ruling ignores the basis for Chief Justice Roberts ruling in Trump v. United States, as described above.  According to his decision, ALL conversations between the President and his staff are entitled to immunity, regardless of the topic of discussion.  The purpose of this blanket immunity is to prevent “the prospect that the President’s official decision making will be distorted” by the concern that the “[u]se of evidence about such conduct” would be made available, “even when an indictment alleges only unofficial conduct” – which is exactly what happened in the New York County criminal case.

Readers of the Presidential Immunity decision may recall Justice Sonia Sotomayor’s unhinged dissent, in which she warned that “under the majority’s reasoning, [the President] now will be insulated from criminal prosecution. Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune. Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune.”

As we stated in August in answer to Justice Sotomayor’s concerns, “If the President of the United States sends Seal Team 6 to assassinate a political rival, under a Tier Two analysis, perhaps the President might be entitled to a presumption of immunity, but such a presumption would be quickly rebutted by the facts.  Meanwhile, if a President merely discusses sending Seal Team 6 to commit such a heinous act of political violence, that conversation would be immune from prosecution under Tier One.  The idea of a President discussing the use of military forces in such a way is clearly disagreeable to most reasonable minds.  But discussion and debate of all options is a necessary element of any executive’s exercise of power.” (Emphasis added.) 

Thus, Judge Merchan has ignored the structure erected by the Supreme Court in support of his own efforts to “get Trump.”  Rather than acknowledge that the President’s discussions with his staff are entitled to Tier One absolute immunity, whatever those discussions may be, Judge Merchan has treated those discussions as Tier Three private and unofficial acts, entitled to no immunity whatsoever.

Now that Merchan has denied the President-elect’s motion to dismiss his case, what’s next?  If Alvin Bragg has his way, nothing – at least, no action on the case for the next four years. As reported by CBS News, “[l]awyers for Manhattan District Attorney Alvin Bragg wrote in a letter to Justice Juan Merchan that he should consider not sentencing Trump…until after he completes his second term in office. That would be the year 2029… ‘Consideration must be given to various non-dismissal options that may address any concerns raised by the pendency of a post-trial criminal proceeding during the presidency, such as deferral of all remaining criminal proceedings until after the end of defendant’s upcoming presidential term,’ the filing said.” 

Of course, the incoming President’s staff attacked any such decision roundly. According to Fox News, Trump spokesman Steven Chueng said “This lawless case should have never been brought, and the Constitution demands that it be immediately dismissed, as President Trump must be allowed to continue the Presidential Transition process, and execute the vital duties of the presidency, unobstructed by the remains of this, or any other, Witch Hunt. The sooner these cases end, the sooner our country can unite behind President Trump for the betterment of all Americans.” 

Indeed.  The advantages to his opponents of having a criminal conviction pending sentencing hanging over the head of the President of the United States are obvious.  Just as obvious is the advantage to those same opponents of having Donald Trump unable to appeal his unjust and illegal conviction, since a defendant must be sentenced before he may proceed with an appeal.

But there is no reason why the President-Elect cannot appeal the denial of his motion to dismiss, and perhaps get a proper determination of the application of the Presidential immunity decision to this illegal conviction from an appellate court.

Certainly, it should be obvious to even Judge Merchan and Alvin Bragg that their lawfare against Donald Trump has failed, and that to postpone the inevitable dismissal of this case is not in the best interests of the United States.  That is, such a result would be obvious to any fair minded person.

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

As we approach winter in the northern hemisphere, the war in Ukraine is beginning to resemble a “frozen conflict” from many perspectives. Ukrainian President Volodymyr Zelensky recently told the media he hopes the war will end faster once President-elect Trump takes over in January. Opinions in Moscow, however, differ from that of the Ukrainian leader. Russian President Vladimir Putin argues that the North Atlantic Treaty Organization (NATO) needs to exclude Ukraine from joining in “exchange” for peace. If it does not, he says, then no end to the war is in sight. So far there is no Christmas solution.

Several NATO countries, according to Vladimir Socor of the Jamestown Foundation, are tentatively considering “coalitions-of-the-willing” to provide security for Ukraine outside of the formal NATO framework. There is, however, no collective mechanism today under which such an arrangement is viable. According to the NATO Charter, while Ukraine is a NATO partner country, it may not join as a full member since it has not fulfilled the requirements for membership. That has not stopped NATO and allies from continuing “to provide Ukraine with unprecedented levels of support, helping to uphold its fundamental right to self-defence,” according to the organization. Socor says that keeping Ukraine out of NATO will not advance peace with Russia. Waiting for a peace settlement, he suggests, would only serve to encourage Moscow to continue the war indefinitely.

Although the Biden Administration officially withdrew its support for Ukrainian membership in 2021, NATO maintains an “open door” policy toward membership-seeking countries. The current White House position led the way for European states to oppose Ukraine’s membership saying that a decision should be delayed until “conditions are met.” Biden pushed for changing “open door” to a “bridge” metaphor. It is not intended as an across-the-board NATO policy and has been implemented in the past on a case-by-case basis, says Socor. “The alliance’s open-door policy was not fully insulated from Russia’s non-statutory blocking power, and NATO-aspirant countries’ path toward membership was not always irreversible.” Russia has successfully blocked states like Georgia from joining, first in 2008 and again after the war in Ukraine began in 2014. Russia recognizes the value add of Ukraine to NATO is enormous and that Kyiv has a better case than some other nations. Putin’s invasion was, in part, intended to foreclose that option. 

By 2021, Moscow was pushing hard to maximize its war objectives, which included further annexations of Ukrainian territory. A main goal for Putin was, and is, to ensure there is no Ukraine left to join NATO. As President-elect Trump prepares to assume office in January, he is faced with the historical challenges presented by the war. Post-conflict security guarantees were the center of several proposals made during the 2023 military stalemate. The incoming Trump Administration has yet to outline how it intends to handle the Russia-Ukraine war. Analysts in Washington believe that the new Administration will expect its European allies to guarantee the majority of Ukraine’s security needs. 

As we approach 2025, several European nations have acknowledged that they do not view Ukraine as eligible for NATO membership as it would draw the organization into the middle of the conflict. Others want to wait until the war is over or pending a “peace” settlement before considering Ukrainian membership. Socor reports that some “influential voices” are suggesting that “Kyiv should join NATO after “freezing” the war along a stable armistice line, de facto accepting Ukraine’s partition, with NATO  security guarantees applying de jure to the government-controlled territory only.” This would mean starting accession talks soon with the actual talks to commence only after a ceasefire is in place. Trump arrives in Washington at a time when Putin’s hybrid strategies of war in Ukraine have eviscerated commonly-held differences between war and peace.

“Absent a political consensus in NATO over Ukrainian membership, certain European allies, including France’s President Emmanuel Macron, are holding informal consultations about post-conflict security guarantees to Kyiv by NATO members outside of NATO’s framework,” according to the Jamestown Foundation. The Biden Administration downplayed the discussions on possible forms of military assistance and defense industry cooperation by sending only an Assistant Secretary of State. For a European peace to hold the Trump Administration would need to formally extend the United States’ nuclear deterrence to Ukraine.

Options under discussion in Europe include a “coalition of the resolute” to deploy forces to Ukraine as part of a possible armistice package, deterring further Russian attacks, says Secor. European officials are also debating, without any agreement, whether its military forces could perform non-combat logistical roles to free Ukrainian forces to fight. None of the possible courses of action has moved forward as all eyes are waiting on the incoming Trump Administration for clues about its intended level of support for a  NATO framework and other non-NATO proposals.  

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

According to energy experts, dispatchable generation refers to power sources that can be adjusted on demand by grid operators to match supply with electricity demand. Examples of dispatchable generation include coal-fired plants, natural gas plants, and large hydroelectric plants (all of which have targets on their back) that can quickly ramp up or down depending on the grid’s needs.  Dispatchable power is the capacity of these generation resources to provide reliable electricity when needed. It plays a fundamental role in grid stability by ensuring that fluctuations in demand can be met in real-time, which is critical in maintaining uninterrupted power supply and avoiding outages.

Unfortunately, for those people who want us to rely on solar and wind for all our energy needs, neither of these renewable sources are dispatchable with respect to generation or the ability to meet our needs 24/7.  This has to do with the completely intermittent and unreliable power generation from wind.  And the fact that solar generation during the day doesn’t meet the peak demand that occurs in the evening hour.  But that is only half of the story.

The LA Times recently acknowledged that the increasing oversupply (read that overkill!) of solar power in CA has created a situation where energy traders can buy our excess solar power at prices so low they become negative.  What does that mean?  We, read that consumers, must pay other states to take the excess energy off our hands lest it overload the grid.  Either that, or the solar farms must be shut down completely (they call that “curtailment”), except in those cases when solar farm operators can count on federal subsidies ($54 million in 2023) that pay out handsomely even when the energy is not needed.

Consider the following.  We used tax breaks, low interest loans, mandates, and incentives of various kinds to get all this solar built and now we are paying other states to take the electricity off our hands at CA rate payer expense.  Meanwhile, even more solar is being built.  These are a few of the reasons that the CA Public Utility Commission slashed financial incentives for roof top solar.  The LA Times reports that the State of New Mexico saved $35 million in 2022, at our expense, by taking our excess solar power.  Arizona has a 24-hour trading floor looking to buy cheap or negatively priced solar power from CA- that is how much power and money we are wasting while in our zeal we seek to eliminate dispatchable sources of electricity generation.

Zealots, like local supervisor Das Williams, will tell you that building industrial-scale battery plants can solve this problem.  But, as the Times reports, most industrial-sized batteries can only store power for four hours (not even enough to get us through the night).  In addition, battery storage effectively doubles the cost of solar.

In Britain, this same phenomenon is occurring with respect to wind power.   According to The Telegraph, British bill payers have spent an “absurd” £1bn (equivalent to $1.2 billion American) so far this year to temporarily switch off wind turbines as the grid struggles to cope with their excess power.  Sweden’s wind energy sector is also crashing financially.

In Germany, after they closed all their nuclear plants, the wind quit blowing!  What to do?  According to NPR, at least 20 coal-fired power plants nationwide are being resurrected or extended past their closing dates to ensure Germany has enough energy to get through the winter.

Additionally, as the AP reports, Germany risks “deindustrialization” as high energy costs and government inaction on other chronic problems threaten to send new factories and high-paying jobs elsewhere.  For instance, Volkswagen is projected to close three factories and lay off 10,000 workers due to electricity costs, EV mandates, and the inability to compete with Chinese EV imports.

Unfortunately, here in the echo chamber we call home, our green virtue-signaling leaders believe that we can never have enough solar and wind, making us consumers gluttons for high electricity bills.  The real problem, they believe, are the remaining few sources of dispatchable energy, e.g. natural gas, which they are trying to eliminate.  The elimination of this vital dispatchable and ubiquitous clean energy source comes by way of prohibiting both production and consumption.  Yet, natural gas is one of the only things propping up the green energy facade, while giving consumers an affordable alternative to wind and solar generated electricity.  And don’t get me started about CA’s shutdown of oil production which is leading to the closure of our gasoline, diesel, and aviation fuel refineries which is going to cause a similar energy death spiral with respect to our transportation sector.

 Andy Caldwell is the Executive Director of COLAB Santa Barbara County

Photo: Pixabay

As is well known, for a jury to find a defendant guilty of a crime, that jury must be convinced that the prosecution has proven their case beyond a reasonable doubt.  According to the New York State Jury Instructions, “[a] reasonable doubt is an honest doubt of the defendant’s guilt for which a reason exists based upon the nature and quality of the evidence. It is an actual doubt, not an imaginary doubt. It is a doubt that a reasonable person, acting in a matter of this importance, would be likely to entertain because of the evidence that was presented or because of the lack of convincing evidence.”

The fact that the Medical Examiner came to her conclusion without benefit of the toxicology report, and the fact that those drugs contributed to Neely’s death, would be enough to create a reasonable doubt that Penny had acted recklessly. The testimony from the DA’s own witnesses, attesting to their fear of Neely, would also serve to establish the justification defense.

Nevertheless, the jury deadlocked during deliberations on the top count, Manslaughter.  They could not agree on whether or not Penny had acted in a reckless fashion in restraining Neely.

It was then that something strange and unprecedented happened.

 As described by The New York Post, after the jury had sent out their second note reporting that they could not agree on the first count, “[t]he judge suggested that he might consider ordering a mistrial in the whole case rather than order one on just the top charge as jurors considered weighing the second. Wiley said he would have done this so as not to lead to a ‘compromise verdict, which New York state courts try to avoid’… Assistant District Attorney Dafna Yoran could then be seen pacing around the courtroom on her cell phone and talking to District Attorney Alvin Bragg’s office staff in the front row of the gallery. The veteran homicide prosecutor left the room, but returned minutes later alongside Steven Wu, the chief of the DA’s office’s appeals bureau. Wu then argued to the judge that axing the manslaughter charge would eliminate the threat of a compromised split verdict.” 

Despite a strenuous objection from the defense, Judge Wiley agreed to dismiss the top count. “‘I’ll take a chance and grant the people’s application,’ Wiley said, instructing the jury to return Monday and deliberate the charge of criminally negligent homicide.”

Take a chance?  With a man facing years of imprisonment?

The defense argued that dismissing the top count at this stage of the trial “presented a violation of state laws and could encourage a precedent where prosecutors overcharge from the start, knowing they can downgrade charges later on the fly if their case doesn’t stand up. ‘[There is a]  risk here of a coercive verdict or a compromised verdict…New York is clear that compromised verdicts are discouraged,’ Penny’s lawyers told the judge. ‘It would force them into what we would submit would be manufactured, as to the lesser count of criminal negligence.'” 

In other words, Penny’s lawyers believed that dismissing the Manslaughter charge just because the jury couldn’t agree on that charge, would signal to the jury that they should convict on the Criminal Negligence charge.

What Judge Wiley seems to have forgotten is that dismissal of the top count was unnecessary.  Under New York Criminal Procedure Law Section 310.70, “[i]f the possibility of ultimate agreement with respect to the other submitted offenses…is so small…the court would be authorized to discharge the jury…the court must terminate the deliberation and order the jury to render a partial verdict with respect to those offenses and defendants upon which or with respect to whom it has reached a verdict.” 

This means that the Judge could have ordered the jury to bypass the Manslaughter charge, go ahead and deliberate on the Criminal Negligence charge, and if they could agree on that charge, either come back to the Manslaughter charge, or report their verdict on the Criminal Negligence charge.

Did Judge Wiley want to see a conviction so badly that he forgot this fundamental rule of trial?  Was he on the side of the prosecution , and decided to tip the scales in their favor? Or did he just not care, and want the trial over with one way or another?  In any of these scenarios, Judge Wiley created an appellate issue for Daniel Penny that would have certainly led to the reversal of any conviction.

If the Court meant to signal to the jury that they should convict on the Criminal Negligence charge, that hint backfired.  When the jury returned to their deliberations, Penny was quickly acquitted of the remaining charge. 

To “take a chance” and follow the advice of Alvin Bragg’s office, rather than research the law applicable to the situation points to a disturbing trend in the New York Courts.  We have witnessed the unfair and frankly illegal trial conducted by Judge Juan Merchan in New York County Supreme Court. https://www.usagovpolicy.com/did-trump-receive-a-fair-trial/ Now we have witnessed a possibly inadvertent, but just as unfair, attempt to place a thumb on the scales of justice against a criminal defendant in a politically charged case.

At this stage, it is fair to ask if the judges who sit in New York County Supreme Court are fair and impartial, or if they are there to enforce the will of Alvin Bragg and his brand of racial and progressive injustice.

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

Photo: Pixabay