Category: Quick Analysis

China’s extraordinary aggression makes the protection of American troops and weaponry an urgent priority.  The Congressional Select Committee on the Chinese Communist Party reports that this is not being done.  We present their report.

In an urgent letter to Air Force and Navy leaders, Chairman John Moolenaar (R-MI) of the House Select Committee on the Chinese Communist Party, U.S. Senator Marco Rubio (R-FL) and colleagues have expressed deep concerns that U.S. military bases may not be able to defend against growing Chinese military threats. In the letter, the lawmakers highlight preliminary research showing that over the past decade, China built more than 400 hardened aircraft shelters while the United States built just 22 in the Indo-Pacific.

 Hardened aircraft shelters are reinforced hangars used to protect military aircraft and will be critical as the United States looks to safeguard its assets in the Indo-Pacific.

 The lawmakers identified shortcomings in DoD military construction priorities and note that the United States spends hardly any money on base resilience military construction projects in the Indo-Pacific at the very moment China is undergoing one of the most rapid military buildups in history. They also call attention to an onerous DoD regulation that is significantly delaying critical construction projects and adversely affecting U.S. military posture in the region.

 The lawmakers requested that the Pentagon respond to the following questions:

 What steps have you taken to incorporate and enhance passive defenses to protect our bases and forces in the Indo-Pacific, including in Alaska, American Samoa, the Commonwealth of the Northern Mariana Islands, Guam, Hawaii, Minor Outlying Islands, and allied and partner territory?

 What plans do you have to create hardened aircraft shelters, underground bunkers, and other hardened facilities to protect aircraft, equipment, and forces operating out of U.S. bases in the Indo-Pacific?

 What additional hardened infrastructure, reconstitution, camouflage, concealment, and deception projects and programs could enhance the passive defenses of U.S. critical assets and forces in the Indo-Pacific?

 Do you plan to request additional funding for base resilience construction projects, including hardened aircraft shelters, underground bunkers, and dispersed and/or redundant facilities? If so, please explain.

 Has the Department assessed options to increase efficiency and speed for executing military construction so that such critical projects do not take years to complete?

 Will you grant the Joint Region Marianas an exemption from following “Munitions and Explosives of Concern” procedures for military construction?

Will you implement “Recognize, Retreat, Report” procedures as the baseline for military construction throughout the Indo-Pacific?

They note that while the Pentagon accurately classified the PRC as the “pacing challenge,” why does the Department’s budget not reflect its rhetoric on the PRC?  

 The lawmakers warned that with its current strike capabilities, China can attack all U.S. bases in the region, targeting U.S. service members from Okinawa to those on U.S. territories of Guam and the Commonwealth of the Northern Mariana Islands (CNMI).

 In fact, unclassified analysis suggests China has enough weapons to overwhelm our air and missile defenses protecting those bases.1 Strikes on U.S. bases could immobilize vital air assets, disrupt logistical chains, and significantly weaken our ability to respond in a conflict. Passive defenses, such as hardened aircraft shelters and dispersal of forces, may offer the most cost-effective way of strengthening our bases and improving their resilience.

They expressed deep concern over the alarming lack of urgency by the Department of Defense (DoD) in adopting such defensive measures. U.S. bases in the region have almost no hardened aircraft shelters compared to Chinese military bases. In addition, a DoD regulation involving World War II-era munitions is substantially delaying and driving up the costs of construction projects in Guam and CNMI aimed at building a more resilient posture for our forces to withstand Chinese attacks and continue operations.

According to members of the Select Committee, “The result is that critical U.S. air assets are highly vulnerable to Chinese strikes. Unsurprisingly, in recent war games simulating a conflict with China over Taiwan, 90 percent of U.S. aircraft losses occurred on the ground, rather than from air combat.

They note that “While active defenses such as air and missile defense systems are an important part of base and force protection, their high cost and limited numbers mean the U.S. will not be able to deploy enough of them to fully protect our bases.

The Report concludes tomorrow

“Ideas have consequences.” At least that is what American philosopher Richard Weaver wrote in 1948. Little did the West know, that in following coming years, Communist China’s political ideas would have an immense impact on the real-world issues we face today.

The National Association of Scholars recently released a report entitled, “China and Our Children.” Its author, Ian Oxnevad, says that over the last two decades China has exerted a strong and vigorous influence over America’s school children under a program designed to shift the American public’s perception of the communist state.

It began with the Chinese Communist Party (CCP) developing language study programs. It then turned them into a tool of political warfare and deployed the programs to the United States as part of its overseas active measures operations.

China’s influence operations today are endemic in its so-called academic exchange and language programs. In reality, they are directed by the CCP with the goal of employing groups such as its Confucius Institutes (CI) in an effort to undermine US democracy. An American advocacy group, Parents Defending Education (PDE), found that the CI’s and
its rebranded programs are used to co-opt American universities, and at an even deeper level infiltrate the fabric of our K-12 school systems.

In an earlier report released in July 2023, PDE found over 143 active or defunct CI’s, now called Confucius classrooms (CCs) across 34 US states, including 20 located on US military bases!

Some of the CCs had direct links to the China People’s Liberation Army (PLA). PDE identified $17,967,565 in Chinese government funds that flowed into the CCs between 2009 and 2023. Although the US forced the closure of many of the CI K-12 programs, today Chinese influence operations are rebranded, alive, and prospering on American
university campuses.

The CCs are less well known than the original Confucius Institute programs but just as dangerous. There are over 164 documented CC programs operating in the United States. “We discovered CCs in the public schools of major metropolitan areas, in rural school districts, elite private schools, and across entire states. When host schools were
categorized by public or private education, 79 percent of these Confucius Classrooms were discovered in public school districts” says Oxnevad. Today Beijing hides its active measures programs behind nonprofit intermediaries to improve its ability to infiltrate the
United States. It coincides with CCP efforts to build strategic economic and diplomatic partnerships with state officials in places such as North Carolina and Minnesota (in the Minnetonka Public Schools, Sisters School District, and St. Cloud Area Schools ) where they were welcomed. In particular, the report cites efforts to establish bilateral programs
by the governor of Minnesota and city officials in Chicago, Seattle, and Portland, Oregon.

China’s CC strategy in American K-12 schools is a gradual, long-term effort to influence policymakers and society at the state and local levels. It typically begins with a bilateral initiative at the local and state level and evolves into agreements, partnerships, and memos of understanding between state level departments of education, governors and
local mayors.

The strategic planning for CCs parallels CCP efforts to engage local businesses in the US. Geographically the CCs are often located “in close proximity to significant Chinese investments,” says Oxnevad. Local nonprofit organizations in many states act at facilitators and sustainers of the programs while schools develop “sister school” relationships. They represent, according to Oxnevad, a point of interest among high-
profile Chinese officials involved with China’s United Front Work Department (UFWD). They help provide books with a Chinese political slant and other funding.

Yet more disturbing is the report’s finding that “nonprofits such as the 100,000 Strong Foundation, Go Global NC, BG Education Management Solutions, IL Texas Global, the Alliance for Education, and the Asia Society played roles in opening American K-12
schools to the Chinese Communist Party. Many of the founders and board members of these nonprofits are high-profile figures from American politics and business.”

Congress needs to revitalize the Foreign Agents Registration Act to eliminate exemption in business, science and educational pursuits. Oxnevad suggests that the US also
establish Ratio Funding Restrictions on universities to curtail them from taking foreign funding that competes with the interest of American taxpayers. It will act like a tax on the school if they accept Chinese funding.

US policy makers need to be aware that through the CCP’s infiltration of the American educational system, China is using its soft
power to successfully influence the United States to accept Beijing’s world view.

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

On July 9, 2024, our own Judge John H. Wilson (ret.) testified before the House Judiciary Committee on the the Trump trial before Judge Juan Merchan. We present his testimony here.

Members of the House Judiciary Committee:

Thank you for the opportunity to appear before you to discuss the criminal trial of former President Donald Trump, held before Judge Juan Merchan, Acting Supreme Court Justice, New York County Supreme Court, Criminal Term earlier this year.

As you may be aware, I served as a Criminal Court Judge in and for both Kings County and Bronx County, New York City, from 2005 to 2014.  For five years of my term, I served as the Night Court Arraignment Judge in Kings County, where I was designated an Acting Supreme Court Justice.  Before my election to the bench in 2004, I served as an Assistant District Attorney in Bronx County, and as a criminal defense attorney. Although I never tried a felony case as a judge, I tried a number of felony cases as defense counsel, including homicides, child molestation, drug sales, etc.

I was involved in all phases of criminal litigation for approximately 30 years.  I have sat in all three seats – prosecutor, defense counsel, and judge.  As all three, I have selected juries, opened, introduced evidence, directed and cross-examined witnesses, closed, and taken verdicts.  I have prepared jury instructions as a judge, and I have drafted and argued appeals of criminal convictions for both felonies and misdemeanors.

I do not personally know Judge Juan Merchan, but I am intimately familiar with New York County Supreme and Criminal Court, having spent most of my career in those courtrooms.

Based on my experience, I can tell you in no uncertain terms that former President Trump did not receive a fair trial from Judge Juan Merchan.  In fact, if the Court of Appeals is fair (and I believe that Court will be fair based upon the reversal of Harvey Weinstein’s illegal conviction), Donald Trump’s conviction is assured reversal, a reversal that will be premised upon the fundamental errors committed by Judge Juan Merchan.

If I may be blunt – Donald Trump was railroaded, and Juan Merchan was the driver of that train.

There is a plethora of appellate issues available in this case.  But for the purposes of this statement, I would like to concentrate on the most glaring problems presented by Judge Merchan’s conduct of this trial.

1. The Indictment was Legally Insufficient and Should have been Dismissed.

The first issue involves the charging document, the indictment, which should have been dismissed by Judge Merchan, with leave to represent the case to another Grand Jury.

In my book, The Making of a Marty, An Analysis of the Indictments of Donald Trump,  Chapters 5 thru 7 discuss the legal insufficiency of the New York County indictment.  I  noted that under Section 200.50 of the New York State Criminal Procedure Law, ‘an indictment must contain…(a) statement in each count that the grand jury…accuses the defendant…of a designated offense,” as well as “a plain and concise factual statement in each count which… asserts facts supporting every element of the offense charged and the defendant`s…commission thereof with sufficient precision to clearly apprise the defendant…of the conduct which is the subject of the accusation.” 

I wrote that my “review of the New York County indictment revealed that Donald Trump was accused of causing a false entry to be made in his business records for the purpose of committing another crime. What other crime?  The indictment does not say. Simply put, how is former President Trump to prepare a defense, if he is not informed of the ‘other crime’ he intended to commit or conceal when he allegedly falsified his business records?”

There is a wealth of case law addressing this issue, but on balance, the principle is the same across all cases – a defendant has the absolute right to know what he is being charged with, so that he may prepare a defense.

That did not happen in the case of Donald Trump.  Judge Merchan was obligated to dismiss an indictment that failed to identify the underlying crime.  How is former President Trump to prepare a defense, if he didn’t know what underlying crime he was allegedly concealing by falsifying his business records?

Some have pointed to the Statement of Facts provided by the New York County District Attorney’s Office, but that is not the Indictment.  Under the law, a Defendant is entitled to know what he is charged with in the charging document itself, not in a supplemental document such as a Bill of Particulars or a Statement of Facts.

Further, that Statement of Facts does not identify what crime underlies the felony falsifying business records charge – it just recounts the actions Donald Trump allegedly took without any expression of what laws were allegedly violated.

Therefore, the Indictment was legally insufficient from its inception, and any competent judge would have dismissed an indictment with these deficiencies.

2. The Failure to Dismiss the Indictment Led Directly to a Violation of Donald Trump’s Constitutional Right to a Fair Trial, and to Judge Merchan’s Illegal Jury Instructions.

The problem with the indictment was never resolved while the case was pending.  However, at the end of trial, the prosecutors and judge finally revealed to the defense the theory of their case, which was described by George Washington Law Professor Jonathan Turley in this way; “Merchan told the jury members that they [could] base their verdict on any one of three vaguely defined crimes of a federal election violation, falsification of business records or taxation violations. Thus, the jury could have divided 4-4-4 on what occurred but the verdict was still treated as unanimous by Merchan to convict Trump.”

To reiterate, I believe the failure to dismiss a clearly facially insufficient indictment was Judge Merchan’s first major error.  This error then led to the second error – allowing the prosecutor to add charges during the trial, charges which were then incorrectly and illegally described to the jury in Judge Merchan’s jury instructions.

Judge Merchan’s instructions stated that “under [New York State] law, although the People must prove an intent to commit another crime or to aid or conceal the commission thereof, they need not prove that the other crime was in fact committed, aided, or concealed.” This is true in so far as it goes, however, the “other crime” the former President intended to conceal was finally revealed – “a violation of New York Election Law section 17-152 [which] provides that any two or more persons who conspire to promote or prevent the election of any person to a public office by unlawful means…”

How did Donald Trump intend to violate New York State’s Election Law?  In one of three ways, “in determining whether the defendant conspired to promote or prevent the election of any person to a public office by unlawful means, you may consider the following: (1) violations of the Federal Election Campaign Act otherwise known as FECA; (2) the falsification of other business records; or (3) violation of tax law.”

Incredibly, when describing these three different laws, each of which represents a different theory of the case, Judge Merchan told the jury that “Although you must conclude unanimously that the defendant conspired to promote or prevent the election of any person to a public office by unlawful means, you need not be unanimous as to what those unlawful means were.”

There are several levels of error presented by these confusing jury instructions.  First, as a basic matter, the defendant was never informed of what he was charged with until the trial, a violation of the Constitutional right to fundamental fairness, and notice. Second, when he was informed of these charges, he was not given the opportunity to prepare a defense to these charges because he was already engaged in trial. But the most egregious error was Judge Merchan giving the jurors the option of returning a verdict which was not unanimous regarding the third level of charges.

Regarding both the first and second of these points, that is the addition of charges during trial and the inability to present a defense, it is stated in the Criminal Resource Manual of the United States Department of Justice, “if an essential element of the offense is omitted from the indictment, it cannot, consistent with the principle underlying the Fifth Amendment requirement that prosecution for an infamous crime be instituted by a grand jury, be supplied by the prosecutor or by the courts. As stated in Russell v. United States, 369 U.S. 749, 770 (1962): ‘To allow the prosecution, or the court, to make a subsequent guess as to what was in the minds of the grand jury at the time they returned the indictment would deprive the defendant of a basic protection which the guaranty of the intervention of a grand jury was designed to secure. For a defendant could then be convicted on the basis of facts not found by, and perhaps not even presented to, the grand jury which indicted him.’“

There can be no doubt that the illegal action described above is exactly what happened in the case of Donald Trump.  The Grand Jury did not return an indictment describing any violation of New York State’s Election law, nor did it enumerate any violations of Federal Elections Law, falsification of other business records, or violations of any tax laws.  Instead, the Grand Jury only described “other crimes” as the predicate for the felony charge of Falsifying Business Records.

In other words, the New York County District Attorney and Judge Merchan both illegally presented charges to the jury that were not included in the indictment. In doing so, former President Donald Trump was not given a fair chance to prepare a defense to these added charges.

Regarding the third point, that is the lack of unanimity permitted to the jury, it is unheard of in New York State jurisprudence to instruct a criminal jury that they need not be unanimous in their verdict. I am unaware of any case in New York, or any other American jurisdiction, state or federal, in which a criminal jury has been allowed to come to a verdict that was not unanimous in any felony trial.

In fact, on June 21 of this year, the Supreme Court decided the case of Erlinger v. United States, (Slip Opinion No. 23-370), in which the necessity for a verdict to be unanimous under both the Fifth and Sixth Amendments to the United States Constitution was reiterated.  Both of those amendments require a jury to be unanimous when rendering its verdict.   

Judge Merchan’s erroneous instructions led directly to our not knowing which jurors went with which theory of the case.  Did some think Donald Trump falsified his business records in order to hide the fact that he was falsifying his business records?  Did some think was he falsifying his business records to conceal some unspecified violation of either the Tax Code or Federal Election law?

Returning again to the issue of fundamental fairness – how can any defendant prepare a defense against such an ever-shifting series of charges?

Clearly, Judge Merchan violated Donald Trump’s right to notice of the charges prior to trial, his right to a fair trial, and his right to a unanimous verdict.

3. Judge Merchan’s Decision to Allow the Prosecution to Use Civil Penalties Against Donald Trump Should he Choose to Testify Violated the Former President’s Right to a Fair Trial.

As a third appellate issue, I refer again to the reversal of Harvey Weinstein’s conviction.

 In Harvey Weinstein’s case, the New York Court of Appeals stated the following: “the trial court erroneously admitted testimony of uncharged, alleged prior sexual acts against persons other than the complainants of the underlying crimes because that testimony served no material non-propensity purpose. The court compounded that error when it ruled that the defendant, who had no criminal history, could be cross examined about those allegations as well as numerous allegations of misconduct that portrayed defendant in a highly prejudicial light. The synergistic effect of these errors was not harmless. The only evidence against defendant was the complainants’ testimony, and the result of the court’s rulings, on the one hand, was to bolster their credibility and diminish defendant’s character before the jury. On the other hand, the threat of a cross-examination highlighting these untested allegations undermined defendant’s right to testify. The remedy for these egregious errors is a new trial.”

In other words, several witnesses were allowed to testify against Weinstein as to sexual assaults with which Weinstein was not charged.  These witnesses portrayed Weinstein as a sexual predator and made it more likely that the jury would believe the victims, even if there were weaknesses and inconsistencies in the victims’ own testimony.  Moreover, the prosecution could question Weinstein about these uncharged assaults, were he to testify in his own defense.

Certainly, it is understandable for some to believe that Weinstein was, in fact, a loathsome person who deserved his conviction and sentence.  Be that as it may, according to the Court of Appeals; “the accused has a right to be held to account only for the crime charged and, thus, allegations of prior bad acts may not be admitted against them for the sole purpose of establishing their propensity for criminality.”

In the trial of Donald Trump, as described in Politico, “if Donald Trump takes the stand, prosecutors will be allowed to grill him under oath about several adverse rulings in his past civil cases, Justice Juan Merchan ruled…Prosecutors will be allowed to elicit testimony about Trump being found liable for fraudulently inflating his business assets in a suit brought by New York Attorney General Letitia James. They will also be allowed to question him about defamatory statements he made about writer E. Jean Carroll. In a civil case last year, a federal jury determined that Trump sexually abused Carroll in a department store in the 1990s, and in two civil cases, Trump was found liable for defaming Carroll. Merchan also ruled that, if Trump testifies, prosecutors can ask him about fines he received for violating a gag order in the business fraud case when he verbally attacked the law clerk of the judge overseeing that case.”

At the time, even Politico had to concede that this was “a significant loss for the former president that will complicate his self-declared plan to testify in his own defense.”

Former President Trump did not testify at his own trial at least partially based on this ruling.  This is the very eventuality the Weinstein decision warns about, and that the Court finds to be an unconstitutional violation of the defendant’s rights; again, quoting the New York Court of Appeals, “Every person accused of a crime is constitutionally presumed innocent and entitled to a fair trial and the opportunity to present a defense. Under our system of justice, the accused has a right to be held to account only for the crime charged and, thus, allegations of prior bad acts may not be admitted against them for the sole purpose of establishing their propensity for criminality… It is our solemn duty to diligently guard these rights regardless of the crime charged, the reputation of the accused, or the pressure to convict.”

Based on the ruling in the Weinstein case, Judge Merchan’s decision to allow the use of prior civil verdicts against Donald Trump were he to choose to testify was a violation of the former President’s right to a fair trial and deprived the former President of the opportunity to present a defense.

4. Judge Merchan Should Have Recused Himself from Hearing the Case of Donald Trump based upon the Overwhelming Appearance of Impropriety.

The fourth appellate issue involves the failure of Judge Juan Merchan to recuse himself from presiding over this case. According to the New York Post, Judge Merchan “donated $35 to Democratic causes in 2020, including $15 to President Biden’s campaign and $10 to a group dedicated to ‘resisting … Donald Trump’s radical right-wing legacy.’ Federal Election Commission records show Merchan made three small-dollar donations within the span of two days in July 2020 through ActBlue, the Democratic Party’s preferred online fundraising platform. The veteran judge contributed $15 earmarked for the ‘Biden for President’ campaign on July 26, 2020, and then the following day made $10 contributions to the Progressive Turnout Project and Stop Republicans.”

Under Rule 100.5(A)(1) of the Rules of the Chief Administrative Judge for the State of New York,  “Neither a sitting judge nor a candidate for public election to judicial office shall directly or indirectly engage in any political activity except (i) as otherwise authorized by this section or by law, (ii) to vote and to identify himself or herself as a member of a political party, and (iii) on behalf of measures to improve the law, the legal system or the administration of justice. Prohibited political activity shall include…soliciting funds for, paying an assessment to, or making a contribution to a political organization or candidate.”

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

It is important to note that Judge Merchan did receive an opinion from the New York State Judicial Ethics Committee which absolved the Judge from any wrongdoing, citing to the minimal amount of the contributions.  Under New York law, a Judge is entitled to rely upon such an opinion as per se evidence of the propriety of his actions.

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

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

This would be an obvious basis for recusal in most cases, but Judge Merchan again sought an opinion on the matter from the Judicial Ethics Committee.  Judge Merchan quotes this opinion in his denial of the motion to recuse himself as follows; “On the specific issue of the employment of this Court’s daughter, the Committee wrote ‘the matter currently before the judge does not involve either the judge’s relative or the relative’s business, whether directly or indirectly. They are not parties or likely witnesses in the matter, and none of the parties or counsel before the judge are clients in the business. We see nothing in the inquiry to suggest that the outcome of the case could have any effect on the judge’s relative, the relative’s business, or any of their interests.’ Defendant has failed to demonstrate that there exists concrete, or even realistic reasons for recusal to be appropriate, much less required on these grounds. The speculative and hypothetical scenarios offered by Defendant fall well short of the legal standard.”

When a judge’s daughter raised tens of millions of dollars based on a case before her father, it would seem very narrow of the Judicial Ethics Committee to believe that the outcome of the case would have no impact on her business. It would also seem very arbitrary for the Ethics Committee to make an exception to the rule against political contributions by Judges based upon the amount of those contributions. 

It is fair to say that under New York law, Judge Merchan had a right to rely upon these opinions of the Judicial Ethics Committee. However, his failure to recuse himself was a clear and absolute violation of Rule 100.2 of the Rules of the Chief Administrative Judge for the State of New York, which states that “a judge shall avoid impropriety and the appearance of impropriety in all of the judge’s activities” (Emphasis added.) This includes an admonishment that “a judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.”

Hearing the criminal case brought against the Republican candidate for President while your own daughter runs a company that makes millions of dollars working with Democrats and their candidates for office certainly has the appearance of impropriety and does not promote public confidence in the impartiality of Judge Merchan. Nor does the fact that the Judge gave money to the Biden campaign, Progressive Turnout Project and Stop Republicans encourage public confidence in the integrity and impartiality of the judiciary.

To engage in these actions clearly had the appearance of impropriety, and any ethical judge would have recused himself under these circumstances, no matter what cover that judge was provided by a conveniently favorable series of opinions from the New York State Judicial Ethics Committee.

To summarize my points, I believe the following:

1. The indictment was legally insufficient, and Judge Merchan should have dismissed the indictment before trial.

2. The failure to dismiss the indictment led to charges being added during trial, a violation of Donald Trump’s right to fundamental fairness and notice of the charges he faced prior to trial. This deprived Donald Trump of the right to prepare a defense. The jury instructions given by Judge Merchan were illegal in that they included these additional charges and allowed for a non-unanimous verdict.

3. Judge Juan Merchan made unconstitutional and prejudicial rulings that impacted Donald Trump’s ability to present a defense, and

4. Judge Juan Merchan should have recused himself from presiding over this matter, based upon the appearance of impropriety in having contributed to political campaigns (regardless of the amounts) and based upon his daughter’s political activities, regardless of the ethics opinions he received.

There are, of course, other appellate issues which exist in this case; allowing the prosecution to claim federal election law violations without presenting any evidence to support those allegations; not allowing the defense to present a witness regarding federal election law, after allowing the prosecution to make the aforementioned statements; and allowing Stormy Daniels to testify, knowing that the prejudicial effect of her testimony outweighed any probative value are several.  It is my belief, however, that the ones I have outlined are what I believe to be the strongest issues to be presented on appeal.

Therefore, it is my considered opinion, based upon my years of legal training and experience, that former President Donald Trump did not receive a fair trial.  That Judge Juan Merchan failed in his obligation to be fair and impartial.  That Judge Merchan committed a series of errors that necessitate reversal of this conviction.  And further, I defy anyone of either good conscience or sound mental facilities to say otherwise.

To be direct, I do not believe anyone can reasonably state that former President Trump received a fair trial in New York County Supreme Court from Judge Juan Merchan.

  Faithfully Submitted,    John H. Wilson,                                                     Judge, Civil Court, Bronx County (ret)

The disappointing July Jobs Report revealed that unemployment rose to 4.3.%

House Ways and Means Committee Chair Jason Smith  (R-MO) outlined how the situation is even worse than the numbers indicate.

Since the start of the Biden-Harris Administration in January 2021, 1.8 million more Americans have had to take multiple jobs. In July, another 33,000 Americans took on second or third jobs. Over the last year, 508,000 full-time jobs have been replaced with 548,000 part-time jobs. 

Of the relatively few full time jobs that were actually created, (particularly considering that the nation’s economy was coming out of Covid) many were government positions which draw from, rather than add to, the national economy. Since the Biden-Harris Administration began, 30 percent of new jobs have come from hiring for government salaries. In July, government agencies added 17,000 to taxpayer-funded payrolls. 

Chairman Smith examined the type of jobs that ar essential to the U.S. middle class, and found depressing results. In the last year, American manufacturers have added only 14,000 total jobs. In July, manufacturers added just 1,000 jobs following an 8,000 cut in June.

The Jobs Report was just one analysis of an economy in distress. The Ways and Means committee chair added the following indicators:

Families Falling Behind on Bills: Over one-third of families (37 percent) paid a late fee in the past year.

Everything Costs More: Prices have increased 20.1 percent since the beginning of the Biden-Harris Administration. 

Americans Making Less: Real wages and benefits have fallen 3.6 percent since the beginning of the Biden-Harris Administration.

Inflation Above Fed’s Target: For 39 straight months, inflation has been above the Federal Reserve’s 2 percent target.

Inflation Higher Than Wages: Inflation outpaced wages for 26 straight months under the Biden-Harris Administration.  

Historic Interest Rates: Under the Biden-Harris Administration, interest rates hit their highest levels in 23 years.

Nearly Doubled Mortgage Costs: The monthly mortgage payment for a median priced new home has increased by $1,027 and is 91 percent higher than when President Biden and Vice President Harris took office in January 2021.

$1 Trillion+ Credit Card Debt: Credit card interest rates are at the highest level in more than three decades, while consumer credit debt has exceeded $1 trillion for the second calendar quarter and the number of Americans struggling to pay credit card bills has increased to the highest level in 12 years.

Shrinking Savings: Thanks to higher prices, families have spent the entirety of their pandemic savings by 2024, and they are able to save less of their income. At 3.4 percent, the personal savings rate is near its historic lows. 

Families Falling Behind on Bills: Over one-third of families (37 percent) paid a late fee in the past year.

An Investopedia analysis also provided a worrisome outlook. “Three separate reports delivered downbeat surprises. Construction spending fell in June for the second month in a row, dropping 0.3%, the Census Bureau said. Forecasters had expected a 0.2% increase instead, according to a survey of economists by Dow Jones Newswires and the Wall Street Journal.”

In terms of the overall American economy, The Congressional Budget Office has published worrisome data. the federal budget deficit in fiscal year 2024 is $1.9 trillion. Adjusted to exclude the effects of shifts in the timing of certain payments, the deficit amounts to $2.0 trillion in 2024 and grows to $2.8 trillion by 2034. With such adjustments, deficits equal 7.0 percent of gross domestic product (GDP) in 2024 and 6.5 percent of GDP in 2025. … By 2034, the adjusted deficit equals 6.9 percent of GDP—significantly more than the 3.7 percent that deficits have averaged over the past 50 year.

Illustration: Pixabay

The United States is not prepared to fight a significant war. That’s the well-researched opinion of the RAND corporation-organized report

of the Commission on the National Defense Strategy, which noted that America hasn’t been prepared for a major conflict since the end of the Cold War nation was last prepared for such a fight during the Cold War, which ended 35 years ago. It reports that the U.S. “is not prepared today. China and Russia are major powers that seek to undermine U.S. influence.”

The Commission found that The United States confronts the most serious and the most challenging threats since the end of World War II. “China and Russia’s “no-limits” partnership, formed in February 2022 just days before Russia’s invasion of Ukraine, has only deepened and broadened to include a military and economic partnership with Iran and North Korea, each of which presents its own significant threat to U.S. interests. This new alignment of nations opposed to U.S. interests creates a real risk, if not likelihood, that conflict anywhere could become a multitheater or global war.”

The threat of a multi-theater conflict was deeply sharpened by the decision of the Obama Administration to eliminate the capability to fight in two areas simultaneously.

The United States could in short order be drawn into a war across multiple theaters with peer and near-peer adversaries, and it could lose. The current National Defense Strategy (NDS), written in 2022, does not account for ongoing wars in Europe and the Middle East and the possibility of a larger war in Asia. Continuing with the current strategy, bureaucratic approach, and level of resources will weaken the United States’ relative position against the gathering, and partnering, threats it faces.

To address the crisis, representing a dire threat to American national security, the Commission “recommends a sharp break with the way the U.S. Department of Defense (DoD) does business and embraces an “all elements of national power” approach to national security. It recommends spending smarter and spending more across the national security agencies of government.”

The Commission warned that “The United States was slow to recognize the threat of terrorism before 2001 and late to understand the rising strength of China and the renewed menace posed by Russia.”  It urged that “the time to make urgent and major change is now. That change will mean fundamental alterations to the way DoD operates, the strategic focus of other government agencies, and the functionality of Congress, as well as closer U.S. engagement with allies and mobilization of the public and private sectors.” 

According to research, the problem is actually getting worse.

China’s dramatic increase in military strength and aggressiveness is a key concern. The Report notes that “…in many ways, China is outpacing the United States and has largely negated the U.S. military advantage in the Western Pacific through two decades of focused military investment. Without significant change by the United States, the balance of power will continue to shift in China’s favor. China’s overall annual spending on defense is estimated at as much as $711 billion,2 and the Chinese government in March 2024 announced an increase in annual defense spending of 7.2 percent.”

 Combined with its power ally in Moscow, the danger to the U.S. is clear. The Commission states that “Russia will devote 29 percent of its federal budget this year on national defense as it continues to reconstitute its military and economy after its failed initial invasion of Ukraine in 2022.  Russia possesses considerable strategic, space, and cyber capabilities and under Vladimir Putin seeks a return to its global leadership role of the Cold War.”

The U.S. Defense Department has been criticized for the way it does business. The researchers found that it is overly bureaucratic and slow to respond to the expanding and changing challenges the nation faces.

The problem is deeper than the forces currently existing. The defense budget itself is grossly inadequate. In addition, America’s defense industrial base manufacturing capability, which was the key to the allied victory in World War 2, must be restored to a size and capability sufficient to meet the challenge.

The stunning danger America faces from its shriveled military capability is truly a crisis of the highest order that must be immediately addressed.

Photo: Chinese sailors board the Russian naval corvette Gromkiy for a visit during the China-Russia joint naval exercise coded Exercise Joint Sea-2024 on July 13, 2024. (eng.chinamil.com.cn/Photo by Luan Cheng)

China is experiencing its largest population decline in more than sixty years. There is no turnabout in its public policy that can change the direction of the expected net decline, despite people living longer and having an improved health care system over the one that existed during the Great Leap Forward famine in the 1959-61 period. During those years demographers estimate China lost 3%-7% of its entire population. During the last 30 years, average life expectancy in China increased by 10 years. Yet the “replacement level,” unlike its economic expansion, has not kept up with the number needed to ensure the country can continue on its modernization program. The result of the failed One Child Policy will have a lasting impact for generations. China is in a desperate predicament and, as a result, is a dangerous nation-state that could destabilize the international world order.

For President Xi Jinping it means the Chinese Communist Party (CCP) will likely encounter potential economic destabilization and domestic political challenges that may be hard to surmount. At the same time, Xi must personally work to ensure his legacy is viewed positively in Chinese history books. In the coming 75 years China could lose more than 45% of its population. By the year 2100 China’s entire population could shrink to 649 million. In contrast, in 2015, 649 million accounted for just the number of active Internet users in the country! Today consumption levels, health indicators, and educational attainment levels offer the basis for a sober assessment of China’s future.

China is feeling the demographic pinch at the same time as its hyper-economic growth is plateauing. Recent data, for example, indicate that China is no longer a leading country in the semiconductor value chain. The United States, South Korea, Japan, and Taiwan are the leaders in research and development in the field. Japan, South Korea, and Taiwan lead in silicon wafer production and processing, while the Netherlands, Japan and the United States lead in semiconductor equipment manufacturing. China no longer makes any of the hi tech lists.

China’s “three-D’s,” (debt, deflation, and demography) are interacting to exacerbate government planning challenges. The CCP faces a shrinking and aging labor force in the country. That translates to fewer buyers for the domestic real estate market. According to Wang Fang, writing in the Wilson Quarterly recently, “Local governments used to rely heavily on land sale and real estate development for its revenues and to pay off debts.” The cooling real estate market results in reduced revenue for local governments while the country is simultaneously experiencing increased costs for health care and pension payouts.

“Concerns for old age support, without an adequate and equitable social safety net, could further dampen consumer spending. Unlike debt and deflation, for which the government has policy tools at its disposal, there has been no effective measures to turn the demographic tide,” says Wang. 

According to Beijing’s official college enrollment numbers, the total student body in 2024 increased six-fold since 2015. While it is impressive that the percentage of college graduates increased from 3% in 1990 to more than 50% in 2020, the falling population data indicates that there will be openings in college for 100% of China’s entire current population in the coming decades. The equivalent would be if the United States had its entire population of over 325 million enrolled in college!

The era of 200-million Chinese women having only one child will haunt the country for more than the next 100 years. The 40-year-long, “one-child generation” will soon face caring for the country’s aged along with their associated increased medical needs. Xi’s legitimacy, and his legacy, will be determined by how he addresses the demographic nightmare created by the Chinese Communist Party.  

Social spending on benefits has more than doubled from 6.1% in 2007 to 13% in 2020, outpacing even increases in China’s defense spending. The per person working population tax burden will increase dramatically in the coming decades. Within 25 years, estimates indicate that over 30% of China’s GDP will be needed to support social benefit programs. That amount is equivalent to China’s entire GDP today.

Xi Jinping will need to take drastic action to ensure political and economic stability in the country in the coming years. At present he appears to be using increases in crackdowns on freedom and dissent to quell unrest. There is another option. It could open a window in which China is forced to move closer to the West to ensures its survival. While the country’s future is yet to be written, the quantitative data are pretty clear about what China will look like in the coming years.

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

Photo: Pixabay

To be clear, Chief Justice Roberts views acts like discussions with the Justice Department and Attorney General as covered by absolute immunity, not sending Seal Team 6 to assassinate the President’s political enemies.

Chief Justice Roberts then describes a second tier of immunity: “the Court concludes that the separation of powers principles explicated in the Court’s precedent necessitate at least a presumptive immunity from criminal prosecution for a President’s acts within the outer perimeter of his official responsibility. Such an immunity is required to safeguard the independence and effective functioning of the Executive Branch, and to enable the President to carry out his constitutional duties without undue caution. At a minimum, the President must be immune from prosecution for an official act unless the Government can show that applying a criminal prohibition to that act would pose no ‘dangers of intrusion on the authority and functions of the Executive Branch.’”

Using this reasoning, Chief Justice Roberts explains which allegations from Jack Smith’s January 6 indictment would fit under this tier; “The indictment next alleges that Trump and his co-conspirators ‘attempted to enlist the Vice President to use his ceremonial role at the January 6 certification proceeding to fraudulently alter the election results’…[i]n particular, the indictment alleges several conversations in which Trump pressured the Vice President to reject States’ legitimate electoral votes or send them back to state legislatures for review.”

The Court continues; “Whenever the President and Vice President discuss their official responsibilities, they engage in official conduct. Presiding over the January 6 certification proceeding at which Members of Congress count the electoral votes is a constitutional and statutory duty of the Vice President.”  Therefore, “[t]he indictment’s allegations that Trump attempted to pressure the Vice President to take particular acts in connection with his role at the certification proceeding thus involve official conduct.” 

However, in this instance, “Trump is at least presumptively immune from prosecution for such conduct. The question then becomes whether that presumption of immunity is rebutted under the circumstances. It is the Government’s burden to rebut the presumption of immunity. The Court therefore remands to the District Court to assess in the first instance whether a prosecution involving Trump’s alleged attempts to influence the Vice President’s oversight of the certification proceeding would pose any dangers of intrusion on the authority and functions of the Executive Branch.”

With these words, Chief Justice Roberts creates a review process that will be necessary whenever a President invokes immunity.  Courts will now be required to determine if the President’s actions are entitled to absolute immunity, or if there is only a presumption of immunity, a presumption which can be rebutted.

This is a crucial distinction to understand.  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.  This is something Jack Smith has never accepted, and as described in my book. The Making of a Martyr, an Analysis of the Trump Indictments, Chapter 14, Smith has attempted to criminalize every discussion former President Trump ever had with his staff, the Justice Department and other elected officials that questioned whether there was voter fraud present in the 2020 election.

Smith’s indictment failed to describe whether Donald Trump’s actions were taken in his official capacity as President, whether those actions were presumptively immune. and what facts would rebut that presumption of immunity.  Therefore, the indictment must be reviewed by the lower Court (federal judge Tanya Chutkin) who is to make these determinations. “On remand,” the Supreme Court states, “the District Court must carefully analyze the indictment’s remaining allegations to determine whether they too involve conduct for which a President must be immune from prosecution. And the parties and the District Court must ensure that sufficient allegations support the indictment’s charges without such conduct.”

The third tier of analysis is very simply stated; “As for a President’s unofficial acts, there is no immunity. Although Presidential immunity is required for official actions to ensure that the President’s decisionmaking is not distorted by the threat of future litigation stemming from those actions, that concern does not support immunity for unofficial conduct…[t]he separation of powers does not bar a prosecution predicated on the President’s unofficial acts.”

Here again, remand for review by the lower court is necessary. For instance, “[t]he indictment also contains various allegations regarding Trump’s conduct in connection with the events of January 6 itself. The alleged conduct largely consists of Trump’s communications in the form of Tweets and a public address…[t]here may…be contexts in which the President speaks in an unofficial capacity – perhaps as a candidate for office or party leader..[w]hether the communications alleged in the indictment involve official conduct may depend on the content and context of each. This necessarily factbound analysis is best performed initially by the District Court.”

Can we expect Judge Chutkin to perform the necessary analysis of Jack Smith’s indictment in a fair and impartial fashion?  Probably not.  As is also described in The Making of a Martyr, at Chapter 16, Chutkin has previously blamed Donald Trump for the actions of the January 6 protestors she has sentenced to extensive jail terms.  The likelihood that she will suddenly give the former President a fair hearing is low.

However, it is obvious that Jack Smith’s “January 6” indictment cannot go forward in its present form.  For all intents and purposes, this indictment has now been rendered irrelevant.

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

Photo: Pixabay

In a decision with far-ranging repercussions, the United States Supreme Court has decided that the American President is to receive “absolute immunity from criminal prosecution for actions within his conclusive and preclusive constitutional authority.”

For much of the left, their analysis of this opinion stops here.  According to President Biden, “[w]ith [this] decision on presidential immunity…for all practical purposes…there are virtually no limits on what a president can do. This is a fundamentally new principle, and it’s a dangerous precedent because the power of the office will no longer be constrained by the law, even including the Supreme Court of the United States.  The only limits will be self-imposed by the president alone.” 

  Then there is the view of Thomas Wolf, the Director of Democracy Initiatives; “In a shocking and lawless opinion, the Supreme Court granted presidents broad protections from criminal prosecution for ‘official acts’ they undertake while in office. This ruling from the Court’s conservative supermajority pulls a new constitutional rule from thin air. And it raises daunting, unjustifiable barriers to criminally prosecuting lawbreaking presidents. Trump is now positioned to renew his push to dismiss the charges against him and evade accountability for the grave crimes he’s accused of committing against our democracy. The Court has left the rule of law in tatters — even as it looks the other way.” 

Even Justice Sotomayor believes this decision to be dangerous.  In her dissent, the “wise Latina” wrote “[t]he President of the United States is the most powerful person in the country, and possibly the world. When he uses his official powers in any way, under the majority’s reasoning, he 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.”

Strong words.  But is this an accurate analysis of Chief Justice Robert’s opinion in Trump v. United States?

Of course not.  While these overwrought statements may constitute dire warnings of potential Presidential misconduct, there is plenty of guidance provided in the majority opinion for future criminal prosecutions of the President of the United States were he to act in such an illegal fashion.

Chief Justice Roberts sets up a three tiered analysis of Presidential claims of immunity.  The first tier consist of acts that involve the President’s “core constitutional powers” for which “immunity must be absolute.” 

 “Article II of the Constitution vests ‘executive Power’ in ‘a President of the United States of America, ‘” Chief Justice Roberts writes. “The President has duties of ‘unrivaled gravity and breadth’…[when] the President exercises such authority, Congress cannot act on, and courts cannot examine, the President’s actions. It follows that an Act of Congress – either a specific one targeted at the President or a generally applicable one – may not criminalize the President’s actions within his exclusive constitutional power. Neither may the courts adjudicate a criminal prosecution that examines such Presidential actions. The Court thus concludes that the President is absolutely immune from criminal prosecution for conduct within his exclusive sphere of constitutional authority.”

What exercise of power does Chief Justice Roberts contemplate as being covered under this form of immunity?  The Court uses an example from Jack Smith’s “January 6” prosecution in Washington DC federal district court (the case under consideration by the Supreme Court); “The indictment alleges that…Trump met with the Acting Attorney General and other senior Justice Department and White House officials to discuss investigating purported election fraud and sending a letter from the Department to those States regarding such fraud. The indictment further alleges that after the Acting Attorney General resisted Trump’s requests, Trump repeatedly threatened to replace him.”

“The[se] allegations… plainly implicate Trump’s ‘conclusive and preclusive’ authority,'” the Chief Justice writes. “The Executive Branch has ‘exclusive authority and absolute discretion’ to decide which crimes to investigate and prosecute, including with respect to allegations of election crime.” Further, “the President’s ‘management of the Executive Branch’ requires him to have ‘unrestricted power to remove the most important of his subordinates’ – such as the Attorney General – ‘in their most important duties.’”

“The indictment’s allegations that the requested investigations were shams or proposed for an improper purpose do not divest the President of exclusive authority over the investigative and prosecutorial functions of the Justice Department and its officials,” the opinion states.  On this basis, “the President cannot be prosecuted for conduct within his exclusive constitutional authority, Trump is absolutely immune from prosecution for the alleged conduct involving his discussions with Justice Department officials.”

Judge John Wilson’s (ret.) article concludes tomorrow

Illustration: Pixabay

Key branches of the federal government, including the Department of Defense, the Federal Bureau of Investigation, and the Cybersecurity and Infrastructure Security Agency are sounding major warnings about America’s vulnerability to infrastructure attacks, particularly from China.

FBI Director Christopher Wray and national security experts warn that national infrastructure a risks the government of China poses to U.S. national and economic security are “upon us now”—and that U.S. critical infrastructure is a prime target. 

“The PRC [People’s Republic of China] has made it clear that it considers every sector that makes our society run as fair game in its bid to dominate on the world stage, and that its plan is to land low blows against civilian infrastructure to try to induce panic and break America’s will to resist,” Wray notes.

The FBI states that the overall threat from the Chinese Communist Party (CCP) is a hybrid one that involves crime, counterintelligence, and cybersecurity—and which the FBI is countering with resources from all three missional spheres, Wray said.  He emphasized that The threat is partially “driven by the CCP’s aspirations to wealth and power… China wants to seize economic development in the areas most critical to tomorrow’s economy,  even if doing so requires theft. The Chinese government has tried to pilfer intellectual property, technology, and research from nearly every industry in the U.S. economy.”

Wray reports that “the immense size—and expanding nature—of the CCP’s hacking program isn’t just aimed at stealing American intellectual property. “It’s using that mass, those numbers, to give itself the ability to physically wreak havoc on our critical infrastructure at a time of its choosing.” 

The Chinese have  pre-positioned themselves to potentially mount cyber offenses against American energy companies.

The Department of Defense also is issuing warnings about Beijing’s assaults. In May, it released a statement noting that “We know that the People’s Republic of China and Russia are actively targeting U.S. critical infrastructure to be poised to disrupt our society and interfere with DoD’s operations in a crisis.”

The Cybersecurity and Infrastructure Security Agency (CISA)   explains that there are 16 critical infrastructure sectors whose assets, systems, and networks, whether physical or virtual, are considered so vital to the United States that their incapacitation or destruction would have a debilitating effect on security, national economic security, national public health or safety, or any combination thereof.

The  numerous areas vulnerable to attack include Chemical plants, commercial facilities, communications, critical manufacturing, dams, the defense industrial base, and emergency services.

In a bizarre 2022 move, the Biden Administration ended a key anti-espionage program known as the China Initiative, launched by the Trump administration to fight Chinese espionage and intellectual property theft. The move, which furthered the vulnerability of American infrastructure, was condemned in Congress and in think tank reports.

Rep. Andy Biggs (R-Arizona) in a 2023 published editorial complained that Biden also did not respond to an increased Beijing espionage effort based in Cuba. “It has recently been revealed that China has embedded an anti-U.S. espionage facility in the nearby island nation of Cuba. [President Biden] is allowing China to get a surveillance foothold 100 miles off the U.S. coast.”

A Heritage analysis noted that “Chinese espionage and covert influence are likely only to increase as the U.S. government becomes less and less inclined to take bold action in advance of an election. China recruits spies inside the United States…Chinese hackers have penetrated the networks of U.S. critical infrastructure, giving China the ability to cripple power, water, and communications to American military bases in a time of crisis. How has the Biden administration reacted? Last year, despite the realities of the espionage threat, Biden’s Justice Department shut down the China Initiative bowing to pressure from activists who said the initiative was inherently racist and xenophobic.”

Photo: CISA works with sector partners to protect assets from natural disasters, as well as human-caused and technological events. (CISA photo)

“The Motion before the Court challenges the legality of Special Counsel Smith,” Judge Cannon writes. “[The defense challenges Smith’s] appointment under the Appointments Clause, which provides the exclusive means for appointing ‘Officers of the United States’…[t]he Appointments Clause sets as a default rule that all ‘Officers of the United States’ – whether ‘inferior’ or ‘principal’ – must be appointed by the President and confirmed by the Senate…[i]t then goes on to direct that ‘Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in Heads of Departments.’”

Accepting Smith’s contention that he is an “inferior” officer, appointed by a “Head of Department,” Judge Cannon finds that there is no act of Congress which authorizes either Attorney General Garland to make this appointment or to establish the office of a Special Counsel. The challenge based upon the Appointments Clause “raise[s] the following threshold question: is there a statute in the United States Code that authorizes the appointment of Special Counsel Smith to conduct this prosecution? After careful study of this seminal issue, the answer is no. None of the statutes cited as legal authority for the appointment…gives the Attorney General broad inferior-officer appointing power or bestows upon him the right to appoint a federal officer with the kind of prosecutorial power wielded by Special Counsel Smith.”

“The bottom line is this,” Judge Cannon states. “The Appointments Clause is a critical constitutional restriction stemming from the separation of powers, and it gives to Congress a considered role in determining the propriety of vesting appointment power for inferior officers. The Special Counsel’s position effectively usurps that important legislative authority, transferring it to a Head of Department, and in the process threatening the structural liberty inherent in the separation of powers. If the political branches wish to grant the Attorney General power to appoint Special Counsel Smith to investigate and prosecute this action with the full powers of a United States Attorney, there is a valid means by which to do so. He can be appointed and confirmed through the default method prescribed in the Appointments Clause, as Congress has directed for United States Attorneys throughout American history…or Congress can authorize his appointment through enactment of positive statutory law consistent with the Appointments Clause.”

Since none of these methods were used to secure the appointment of Jack Smith as Special Counsel, Judge Cannon concludes, as Justice Thomas discussed, Smith’s appointment was illegal, and his actions to date have no legal authority.  Therefore, the indictment he filed against former President Trump in Florida federal court must be dismissed.

Besides Smith’s appeal of Judge Cannon’s decision to the Eleventh Circuit, we can expect Judge Chutkin in Washington DC to take up this issue as she conducts her review of the January 6 indictment.  However, based upon the bias Judge Chutkin has already exhibited against Donald Trump during the sentencing of a series of January 6 Capitol rioters (in which she bemoaned the fact that the person responsible for the riot was not before her to answer for his actions), we can expect Judge Chutkin to find a way to let Smith’s appointment stand.

More likely than not, the DC Court of Appeals will endorse whatever decision Judge Chutkin makes, as they have done in the past.  If the Eleventh Circuit upholds Judge Cannon’s decision, this will set up conflicting opinions between the Circuits. a situation the US Supreme Court usually resolves.  Even if the Eleventh Circuit does not uphold Judge Cannon’s decision, given the interpretation of the Constitution in question here, the Supreme Court is most likely to take up the issue.

We will then see if a majority of the Supreme Court agrees with the opinion expressed by Justice Clarence Thomas.

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

Illustration: Pixabay