Category: Quick Analysis

Did anyone in Washington notice that China tested a nuclear capable long-range ICBM with a dummy warhead on September 25? It landed in the Pacific Ocean with no “notified” overflight announcement to nearby countries, although in Washington DOD said it had “some” notice from Beijing. Brent Sadler, a senior research fellow at the Heritage Foundation notes that China chose to launch at a time when international tensions are high not only in Europe and the Middle East but also across East Asia. The news gets worse. US lawmakers recently confirmed the CCP now has more ICBM launchers than the United States. This is a fivefold quicker increase than Washington predicted.  

Beijing has been preparing for war for a long time. As far back as 1980, a Chinese newspaper published a map of Asia with circles drawn to indicate the countries within the target area of its launch of a DF-5 missile. They included the Solomon Islands, Fiji, Nauru, the Gilbert Islands, Tuvalu, western Samoa, and the New Hebrides. One member of the intelligence community active in the region recently commented, “We should have been seeing the lights flashing red, but we continue to ignore them.” ICBM’s have a range of over 3,500 miles. China’s missiles can strike targets almost anywhere in the world. Beijing’s DF-41, its longest-range missile, can travel an estimated 9,300 miles. San Francisco is 6,100 miles from Shanghai.

Washington must not be misled by suggestions that this week’s ICBM launch is simply a normal event, according to numerous members of the intelligence community. Sadler points out that China frequently tests fractional orbital bombardment missile systems, including a recent launch in July 2021. Beijing’s trajectory is not one of peace. It is not deterred by the West. It is accelerating and expanding its military readiness and technological capabilities to launch a war in the Pacific. Jeffrey Lewis, a missile expert at the James Martin Center for Nonproliferation Studies at the Middlebury Institute of International Studies says “We’re entering a new age… where the United States and China are engulfed in what feels like an arms race… It is a China that does not feel constrained… and [they are] demonstrating to others they work.”

Taiwan’s President, William Lai, continues to warn about China’s ambition for global hegemony after the recent test. A spokesperson for the Australian government stated that “The launch comes in the context of China’s rapid military build-up, which is taking place without the transparency and reassurance that the region looks for from great powers… [It] is destabilizing and raises the risk of miscalculation in the region….” In Japan, the reaction was similar with a government spokesperson at a press conference noting Tokyo had “no advance notice.” This comes after China increased its military presence around Japan during the last month and, in an unprecedented move, breached Japanese air space using one of its military aircraft.

The CCP’s missile message also serves a domestic purpose. The government has endured repeated scandals over corruption within the People’s Liberation Army Rocket Force (PLARF). It purged many of its senior military leaders. Timothy Heath, a senior international defense researcher at RAND Corporation suggested “The test was an opportunity for the PLARF to restore its credibility with China’s leadership” and show that it remained capable despite the corruption scandals. Johnn Ciociari, dean of the Hamilton Lugar School of International Studies at Indiana University pointed out that “Within China, it supports a nationalist narrative about the government’s competence and resolve… Regionally, it is part of a broader effort to discourage China’s neighbors from challenging Beijing on Taiwan or other flashpoints.” He added that “To global audiences, the test may seek to amplify perceptions that China is gaining rapidly on the United States in military power and technological prowess.”

There is yet another urgent concern for Washington beyond China’s perceived intent to show it is ICBM-capable of attacking the United States. Some in the military intelligence community in Washington are concerned that due to the financial cost of Russia’s war in Ukraine, Moscow may be manufacturing and likely selling advanced military technologies that fill any remaining gaps the CCP has in its arsenal. The US must be prepared under the oceans, on the ground, and in space to confront Chinese aggression.

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

Photo: A Smart Dragon-3 carrier rocket carrying eight satellites blasts off from the waters near the city of Haiyang in east China’s Shandong Province, Sept. 24, 2024. China launched the rocket on Tuesday, placing eight satellites into planned orbit. The commercial rocket blasted off at 10:31 a.m. (Beijing Time), carrying Tianyi-41 and other satellites. The Taiyuan Satellite Launch Center carried out this offshore launch. (Photo by Guo Houze/Xinhua)

On September 25, the US Navy ship Big Horn ran aground and partially flooded off Oman, leaving the Abraham Lincoln Carrier Strike Group without its primary fuel source. The Big Horn was the only US Navy oiler in the entire Middle East. Most Americans slept through our post-Cold War dividend, believing that friendly relations with those antithetically opposed to American values won over the worst of the world’s worst. That time has run out with recent events around the world challenging the idea that if we stay neutral and ignore threats, such as the Russian invasion of Ukraine, they will go away. Congress expanded funding for social welfare programs while failing to supply the money needed to, literally, keep our military afloat. Now Washington is faced with aiding Ukraine at a time when the size and strength of the US military is increasingly challenged.

Washington must assume that even a weakened Russia is taking notice of America’s failure to prepare for peace through strength. There is no doubt within the intelligence community this week that the Russia-China-Iran-North Korea axis is preparing to face off with the West. The remaining question is one of timing. Misunderstanding the nature of the threat and how Putin perceives the West may be Washington’s greatest weakness.

Russian President Vladimir Putin made three bets according to Dr. Junhua Zhang, a senior associate at the European Institute for Asian Studies. They are not unlike those made by Saddam Hussein before his invasion of Kuwait. At that time President Bush failed to forcefully send a message to Hussein to back down. President Biden has failed to reign in Putin despite modest administration efforts inside the White House National Security Council.

Putin bet that no matter what occurred after the start of his “special military operation” he would have buyers for his country’s oil and gas to finance his effort. He received assurances in advance and today China and India continue to purchase at discounted prices that are high enough to support his war machine. 

Putin’s second bet may be short-lived but addresses Moscow’s immediate need as China is not parting with its Russian alliance. Several years after Putin’s invasion in Ukraine, Beijing continues its comprehensive support in diplomacy, finance, military, industry, and consumer goods. According to Reuters, Russia even allowed a Chinese toy factory to produce military drones, despite Beijing’s official protestations that “We are neutral, and we don’t deliver any weapons to any war party.” 

Finally, Putin bet on us in the West. He gambled that Washington, and other western capitals, would say they opposed Russian aggression, but would be deterred from immediate and substantial assistance to Ukraine. Putin surmised his threat to use nuclear weapons would be enough to stop any extensive action on the part of the West. Although the West is stepping up, Putin remains undeterred in using long-range missiles to hit Ukraine. At the same time, Ukrainian President Zelensky doesn’t receive comparable support from the West to move deeper into Russian territory. 

Some in the intelligence community are quietly discussing whether we are moving into a post-Westphalian rules-based order. Economic globalization, a lack of support in Washington for maintaining the most advanced military to deter aggression, and China’s emergence into the world order claiming leadership rights, all contribute to destabilizing the world. 

Perhaps, there is a fourth bet. By weakening the European Union (EU) and the United States, along with the euro-dollar and western financial sectors, Moscow can attempt to participate in leading new economic, social, and political expansions elsewhere in the world. The BRIC countries appear to be one target susceptible to Putin’s overtures as can be seen in their supportive actions at the United Nations. 

Earlier this month, following an interview after the Forum on United Cultures, Russian President Vladimir Putin again threatened the Western nations claiming that strikes on Russian territory meant direct participation by the Nort Atlantic Treaty Organization (NATO). It isn’t the first time the Russian leader has made such a threat. It failed to deter the West despite additional threats from other senior Russian officials, including the current Deputy Chairperson of the Russian Security Council Dmitry Medvedev, who claimed a nuclear response is possible. When backed into a corner Putin will strike out like a venomous snake, despite its impending death, says Rebecca Koffler, a former DIA Russian analyst and author of “Putin’s Playbook.”

Boris Bondarev, of the Jamestown Foundation, says “How the West responds to these is essential. Western states would benefit from responding the same way they have to the previous threats: take them into account but proceed from the fact that Putin himself is afraid of drastic and unpopular steps, whether in the political or military sphere.” The risk is that as the US military grows older and comparatively less capable over time, Putin’s threats could become reality should he see it as a last ditch effort to save the former Russian empire from dismantlement.

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

Photo: U.S.S. Big Horn (U.S. Navy photo)

Things have not gone well for Special Counsel Jack Smith this year.  First, the United States Supreme Court decided that a number of the allegations brought against former President Donald Trump in Smith’s “January 6″ indictment were subject to absolute immunity, and as such, could not form the basis for a criminal prosecution.  Then, Smith’s “classified documents” indictment was dismissed by Judge Aileen Cannon, who followed the reasoning of Supreme Court Justice Clarence Thomas and ruled that Smith’s appointment as Special Counsel was illegal, which means Smith did not have the power to indict former President Trump in the first place.

These reversals, however, do not spell the end of Jack Smith’s efforts.  The intrepid Special Counsel has appealed Judge Cannon’s ruling to the 11th Circuit Court of Appeals. His office has also filed a superseding indictment in the “January 6” case. 

As described by CNN, a superseding indictment is  “a document that amends and replaces the original indictment, listing the formal charges against a defendant. A grand jury typically approves a superseding indictment after additional information or evidence has been obtained, and the new document usually adds charges or defendants to the case…in rare instances, minor deletions of details included in the initial indictment have been permitted.” 

When the US Supreme Court handed down its ruling in Trump v. United States, Chief Justice Roberts distinguished between a President’s official, constitutionally mandated actions, which are entitled to absolute immunity, from acts which have a presumption of immunity, a presumption which can be rebutted, from unofficial acts which have no immunity.  Since “no court has thus far considered how to draw [these] distinction[s],” Roberts stated that “[t]his necessarily factbound analysis is best performed initially by the District Court. We therefore remand to the District Court to determine in the first instance whether this alleged conduct is official or unofficial.”

Rather than allow District Court Judge Tanya Chutkin to perform this analysis, The Special Counsel filed a superseding indictment. “’The superseding indictment, which was presented to a new grand jury that had not previously heard evidence in this case, reflects the Government’s efforts to respect and implement the Supreme Court’s holdings and remand instructions’…Smith’s office said.” 

In particular, Smith removed a section from the original indictment that accused Trump  of using “the power and authority of the Justice Department to conduct sham election crime investigations and to send a letter to the targeted states that falsely claimed that the Justice Department had identified significant concerns that may have impacted the election outcome.” These allegations were specifically discussed in Chief Justice Robert’s opinion; “The Government does not dispute that the indictment’s allegations regarding the Justice Department involve Trump’s ‘use of official power’…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.”  For this reason, these discussions are entitled to absolute immunity, since “[t]he President may discuss potential investigations and prosecutions with his Attorney General and other Justice Department officials to carry out his constitutional duty to ‘take Care that the Laws be faithfully executed.'” (Citations omitted.)

Yet, the removal of these allegations does not cure the defects which are carried over from the original indictment to the superseding one.  In fact, this new indictment is just as facially insufficient and impossible to prove as was its predecessor.

The new indictment continues to assert that Donald Trump “used knowingly false claims of election fraud to get state legislators and election officials to subvert the legitimate election results and change electoral votes for the Defendant’s opponent, Joseph R. Biden, Jr., to electoral votes for the Defendant.”  It is also alleged that Trump “organized fraudulent slates of electors in seven targeted states (Arizona, Georgia, Michigan, Nevada, New Mexico, Pennsylvania, and Wisconsin), attempting to mimic the procedures that the legitimate electors were supposed to follow under the Constitution and other federal and state laws.”

In Chapters 14 and 15 of our book, The Making of a Martyr, an Analysis of the Indictments of Donald Trump,  we review these particular allegations.  In particular, we discuss the inability to establish that Donald Trump did not sincerely believe that the 2020 President election was stolen from him through election fraud in the “seven targeted states.”  We noted that according to Jack Smith, “Donald Trump knew that there wasn’t any ‘outcome determinative fraud’ in the 2020 presidential election because other people told him so,” those other people being some of his attorneys and officials at the Justice Department.  However, “[f]rom all appearances, Trump believed there was election fraud, that it was indeed ‘outcome determinative,’ and as a result, he challenged the results of the election in every way possible.”

Further, we also examine whether or not making use of alternate electors would even constitute a criminal act.  We trace prior instances of alternate electors, and efforts by progressive Democrats to convince duly-elected electors to change their votes, and conclude that “[m]ost federal prosecutors have better things to do than become involved in a political process and prosecute ‘invalid electors’ whose votes have been rejected by Congress, or those who encouraged the submission of those alternate votes.”

These problems from the original indictment remain in the superseding one.  A new problem, however, is presented by the re-worked allegations regarding former President Trump’s interaction with Vice-President Pence.

Originally, the indictment claimed that Trump  “attempted to enlist the Vice President to use his ceremonial role at the January 6 certification proceeding to fraudulently alter the election results…using knowingly false claims of election fraud, (Trump) attempted to convince the Vice President to use the Defendant’s fraudulent electors, reject legitimate electoral votes, or send legitimate electoral votes to state legislatures for review rather than counting them.”

In Chief Justice Roberts’ opinion, he noted that Smith’s office “explained at oral argument that although it ‘has not yet had to come to grips with how [it] would analyze’ Trump’s interactions with the Vice President, there is ‘support’ to characterize that conduct as official…[i]ndeed, our constitutional system anticipates that the President and Vice President will remain in close contact regarding their official duties over the course of the President’s term in office.”

To get around this weakness in Smith’s case, the Special Counsel now asserts that Trump “attempted to enlist the Vice President, in his ceremonial role as President of the Senate at the January 6 certification proceeding to fraudulently alter the election results.” (Emphasis added.)  As this change is described by NBC News, “[t]he new indictment also notes Vice President Mike Pence’s role as president of the Senate on the day of the electoral vote count –  Jan. 6, 2021 – in an apparent nod to concerns from the Supreme Court about whether evidence of Trump’s campaign to get Pence to intervene in the count should be allowed. The Supreme Court ruling said, ‘Whenever the President and Vice President discuss their official responsibilities, they engage in official conduct,’ and there is therefore a ‘presumption of immunity’ around their conversations. But the ruling also noted that Pence’s responsibility of ‘presiding over the Senate’ is not an ‘executive branch’ function.'” 

It is hard to see how this change suddenly converts Trump’s actions from official to unofficial.  In essence, Smith asserts that the former President was speaking to Vice President Pence as a private citizen and candidate for office, and not as President of the United States, while Pence was not acting as Vice President, but in his “ceremonial” capacity as President of the Senate.  In the alternative, Trump, as head of the Executive Branch, spoke to Pence outside of Pence’s Executive Branch responsibilities.

 One fallacy  of this argument is the attempt to paint the Vice President’s role as President of the Senate as “ceremonial.”  In fact, this office is given to the Vice President specifically by the United States Constitution.   Under Article I, Section 3, Clause 4, “The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided.”  Constitution Annotated makes clear that this role is far from “ceremonial”; “In addition to casting the tie-breaking vote when the Senate is divided equally, the President of the Senate also, among other things, conducts the electoral count and attests that an enrolled bill has been passed by the Senate. By affixing his or her signatures to an enrolled bill the President of the Senate along with the Speaker of the House indicates that the bill has passed Congress and is ready for presentment to the President.” 

Thus, Pence’s “ceremonial” role as President of the Senate is a duty which lies outside of his responsibilities to the Executive Branch as Vice President.  This is a duty he owes to the Legislative Branch.  But as outlined, that role is far more than “ceremonial.”

While it is true that the Supreme Court used the example of the President’s interaction with those he supervises in the Executive Branch (eg, the Attorney General) as a model for actions which enjoy absolute immunity, in adopting this example so closely, Smith takes the narrow view that the President’s interactions with those outside the Executive Branch are not actions which are entitled to immunity. 

This view is demonstrably wrong.

Under Article 2, Section 3 of the United States Constitution, the President “shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient.” (Emphasis added.)

Based on this clause in the United States Constitution, there is a view of the evidence possible, that then-President Trump was consulting with Vice President Pence, in Pence’s capacity as President of the Senate, “in consideration” of a measure that Trump deemed “necessary and expedient,” that is, securing a free and fair election.  If that were the case, then President Trump would be entitled to absolute immunity for his actions.

 At best, then, all Smith has done is state a claim in rebuttal of the presumption of Executive action entitled to absolute Immunity.  The allegations in the superseding indictment do not establish that Trump was acting solely as a candidate, in an unofficial capacity, and not as President, to insure that the election was fair.

Thus, much like Smith’s allegations regarding former President Trump’s “knowingly false claims of election fraud” and his “fraudulent slate of electors,” Smith has set up yet another straw man with his superseding indictment.  HIs allegations are premised on suppositions unsupported by logic, or the facts.  How can Smith prove that Vice President Pence’s role as President of the Senate is merely ceremonial, and how can he establish that Trump addressed Pence as a private candidate for office, and not in his Constitutional role as President of the United States, acting in consideration of something he felt was “necessary and expedient,” that is, to safeguard the nation’s election process from what Trump believed to be an obviously stolen election?

If Smith’s new allegations serve only as an attempt to rebut the assumption that former President Trump’s actions were taken in his official capacity, and therefore subject to immunity, then Jack Smith continues to fall short of the standard necessary to prove Donald Trump guilty of any crime, the standard that applies in all criminal cases – proof of guilty beyond a reasonable doubt.

Judge John Wilson served on the bench in NYC

Photo: Special Counsel Jack Smith (official photo)

In our book Not Wasting a Crisis, the Lawless Biden Administration,  we describe the efforts made, and that continue to be made, by the current Government to use its emergency powers to expand its authority.  Many of these efforts have been attempted by Cabinet Secretaries, who have ordered their administrative agencies to promulgate regulations such as the mask and vaccine mandates during the Covid pandemic, or the DEI initiatives imposed on the Department of Defense and the FBI.

Time and again, these overreaches have been blocked by the US Supreme Court and lower courts based upon an examination of the original intent of Congress when a law was established; that is, did Congress intend to authorize the broad exercise of power claimed by a federal agency?  Most often, the answer was no – Congress did not give the power claimed by an agency to that agency.

In Loper Bright Enterprises, the same rationale is applied; When it passed the APA, “Congress surely would have articulated a similarly deferential standard applicable to questions of law had it intended to depart from the settled…understanding that deciding such questions was ‘exclusively a judicial function’…[b]ut nothing in the APA hints at such a dramatic departure.”

Courts often applied the Chevron deference when the issue was a technical matter, and the federal agency was presumed to be the expert on such a complicated issue.  Roberts dispels this reasoning by again referring to Congressional intent. “[E}ven when an ambiguity happens to implicate a technical matter,” the Court writes, “it does not follow that Congress has taken the power to authoritatively interpret the statute from the courts and given it to the agency. Congress expects courts to handle technical statutory questions.”

“[D}elegating ultimate interpretive authority to agencies is simply not necessary to ensure that the resolution of statutory ambiguities is well informed by subject matter expertise,” Roberts concludes. “The better presumption is therefore that Congress expects courts to do their ordinary job of interpreting statutes, with due respect for the views of the Executive Branch. And to the extent that Congress and the Executive Branch may disagree with how the courts have performed that job in a particular case, they are of course always free to act by revising the statute.”

The usual suspects sounded the usual alarm bells after the Loper Bright decision was published. “The Supreme Court’s decision to torch a once-obscure Reagan-era legal doctrine will remake one of the most fundamental aspects of power in Washington,” Politico claims, “and hobble presidents pursuing aggressive policies on anything from abortion to student debt relief. Peeling back the doctrine known as Chevron deference has been a conservative cause for decades, one aimed at restricting agencies’ freedom to decide how to interpret Congress’ often-ambiguous statutes…Conservatives advocating the change aimed to restrain presidents – mostly Democrats – whose agencies have stretched the boundaries of laws passed decades or generations ago to address the problems of today. Defanging the White House this way frees up judges to reach their own conclusions about what lawmakers meant, but it comes with a daunting consequence: From now on, Congress will be expected to sort out the intricacies of issues like housing finance, greenhouse gas emissions and artificial intelligence, at a time when it’s already struggling to legislate on big issues.” 

In particular, Politico frets that “[t]he future of Biden’s student debt relief efforts – an appeal to young and millennial voters – may come undone without Chevron…[t]he Education Department argues that the president has the authority to enact this relief under the Higher Education Act’s compromise and settlement authority…[b]ut many argue that the agency’s interpretation is too broad, leaving Biden’s push particularly vulnerable to a judge unrestrained by Chevron.

On the other hand, “Roman Martinez, who argued the case on behalf of one of the fishing companies, applauded the decision. ‘By ending Chevron deference,’ he said in a statement, ‘the Court has taken a major step to preserve the separation of powers and shut down unlawful agency overreach. Going forward, judges will be charged with interpreting the law faithfully, impartially, and independently, without deference to the government. This is a win for individual liberty and the Constitution.'” 

In the end, your position on the reversal of the Chevron deference depends upon your opinion of the Administrative State.  Do you want unelected bureaucrats to assert their expertise in promulgating more and more regulations that affect our daily lives, or do we want the Courts to perform their traditional job of interpreting statutes, and issuing opinions that reflect the intent of Congress?  Do we respect the separation of powers embodied in our Constitution, or do we want a government that exceeds its authority whenever it can for its own purposes? Do we want a government that forgives billions of dollars in student loans in an effort to buy the votes of young people, or an Administration that respects the rule of law?

Judge John Wilson served on the bench in NYC

Illustration: Pixabay

In April, we discussed the 1984 Supreme Court decision in Chevron USA v. Natural Resource Def. Council, 467 US 837 (1984).  “Briefly stated,” we wrote, “the case involved a challenge to regulations promulgated by the Environmental Protection Agency regarding air pollution controls mandated for manufacturing and oil refining plants and factories. In Chevron, the Court held that ‘[a]n agency, to engage in informed rulemaking, must consider varying interpretations and the wisdom of its policy on a continuing basis. Policy arguments…should be addressed to legislators or administrators, not to judges. The EPA’s interpretation of the statute here represents a reasonable accommodation of manifestly competing interests and is entitled to deference.’” 

The Chevron case has been instrumental in the rise of the Administrative State. “For the past 40 years,” we noted, “this ‘Chevron deference’ has been granted to a variety of determinations made by every regulatory agency of the federal government.  To paraphrase the substance of this deference, ‘they’re the experts – they know better.’”

We also described a pair of cases recently brought before the US Supreme Court that gave the high court the opportunity to revisit and perhaps reverse this deference to administrative agency determinations.  “As described by Reuters,  ‘[I]n Loper Bright Enterprises v. Raimondo…petitioners challenge[d] regulations of the National Marine Fisheries Service (NMFS) which impose a per diem fee on vessels to pay for the individual they are required to carry on trips to monitor compliance with fisheries rules under the Magnuson-Stevens Act (MSA).’  This case was consolidated with Relentless, Inc. v. Department of Commerce, ‘[also] a challenge to the per diem fees imposed by the NMFS on vessels to pay the cost of the observers the NMFS sends out to monitor the health of fisheries.’”

The Supreme Court’s decision has been published, and as most Conservatives and Free-Market proponents had hoped, the Chevron deference is no more.

Chief Justice Roberts’ majority opinion in Loper Bright Enterprises v. Raimondo explains the primary reason for the reversal of Chevron – the standard established in that case was a violation of statutory law which predates the Chevron decision itself.

In 1946, more than 35 years before Chevron was decided, Congress passed the Administrative Procedure Act (APA). A response to the Roosevelt “New Deal” era, Roberts writes that the APA was intended “’as a check upon administrators whose zeal might otherwise have carried them to excesses not contemplated in legislation creating their offices’…[i]t was the culmination of a ‘comprehensive rethinking of the place of administrative agencies in a regime of separate and divided powers.’” (Citations omitted.)

According to Chief Justice Roberts, “[i]n addition to prescribing procedures for agency action, the APA delineates the basic contours of judicial review of such action. As relevant here, Section 706 directs that ‘[t]o the extent necessary…the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action’…It further requires courts to ‘hold unlawful and set aside agency action, findings, and conclusions found to be . . . not in accordance with law.’” (Citations omitted.)

Chief Justice Roberts describes the significance of this law; “The APA thus codifies for agency cases the unremarkable, yet elemental proposition…that courts decide legal questions by applying their own judgment. It specifies that courts, not agencies, will decide ‘all relevant questions of law’ arising on review of agency action…even those involving ambiguous laws…and set aside any such action inconsistent with the law as they interpret it. And it prescribes no deferential standard for courts to employ in answering those legal questions.”

“[B]y directing courts to ‘interpret constitutional and statutory provisions’ without differentiating between the two,” the Court writes, “Section 706 makes clear that agency interpretations of statutes – like agency interpretations of the Constitution – are not entitled to deference. Under the APA, it thus ‘remains the responsibility of the court to decide whether the law means what the agency says.’”

In essence, then, there never should have been a Chevron deference in the first place – “The deference that Chevron requires of courts reviewing agency action cannot be squared with the APA….Neither Chevron nor any subsequent decision of this Court attempted to reconcile its framework with the APA. The ‘law of deference’ that this Court has built on the foundation laid in Chevron has instead been ‘[h]eedless of the original design’ of the APA.” (Citations omitted.)

“Perhaps most fundamentally,” Roberts states, “Chevron’s presumption is misguided because agencies have no special competence in resolving statutory ambiguities. Courts do. The Framers, as noted, anticipated that courts would often confront statutory ambiguities and expected that courts would resolve them by exercising independent legal judgment. And even Chevron itself reaffirmed that ‘[t]he judiciary is the final authority on issues of statutory construction’…Chevron gravely erred, though, in concluding that the inquiry is fundamentally different just because an administrative interpretation is in play. The very point of the traditional tools of statutory construction – the tools courts use every day – is to resolve statutory ambiguities. That is no less true when the ambiguity is about the scope of an agency’s own power – perhaps the occasion on which abdication in favor of the agency is least appropriate.”

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

Gen. Christopher Cavoli, supreme allied commander Europe and the head of U.S. European Command has warned of growing threats facing NATO.

“There is a lot of work to be done, and there are big challenges looming — some of them are right in our face, right now,” he warned at the Aspen Security Forum.

He is not alone in his concern. the Germany-based Friedrich Naumann Foundation for Freedom notes that “The beginning of Russia’s invasion of Ukraine … marked a deep break … Questions concerning Europe‘s self-image as a voluntary alliance of nation states, its ability to defend itself and the protection though NATO as well as the values for which it stands are further tested by refugees coming to Europe from Ukraine.  The democracies of the European Union are vulnerable and their reaction to Putin’s war are carefully watched. Authoritarian states, such as China, predict Europe’s decline and emphasize their own superiority over the ‘Western systems.’”

The most interesting fact General Cavoli emphasized was that, in addition to the renewed danger from expansionist Russia, is the growing threat from China.

The German Marshall Fund describes the problem.. “Russia and China continue to deepen their partnership, mounting a common challenge to the West. They can advance their strategic objectives better together, undermining perceived Western domination of the global order and impacting Europe’s future security. Russia’s war of aggression against Ukraine has de facto upended the post-Cold War security architecture in Europe and is a direct, existential threat to European security. Beijing plays an important role for Russia’s war efforts, regardless of China’s status as Europe’s largest trading partner or its desire to hedge on Europe to win its geostrategic competition with the United States. “

NATO has continued to concentrate on the potential threat from Beijing. . It developed its concern against the backdrop of China’s designation as a “long-term strategic competitor.” Both the Trump and Biden administrations have sought to expand transatlantic cooperation on China, motivated by the belief that greater European support to US policies is key to effectively addressing the economic, political and strategic challenges associated with China’s growth. While Washington has put much emphasis on discussing with the EU and individual European countries how best to tackle the geo-economic, technological and diplomatic challenges associated with China’s rise and behaviour, NATO has also become an increasingly important partof transatlantic cooperation on China.

Some Chinese military threats to Europe are conventional. China and Russia have engaged in joint maneuvers in the Mediterranean, and the Chinese naval presence in the Middle East has grown.

Others are of a different variety. The Atlantic Council says that some Chinese threats to European security are merely insidious. For example, China undermines Europe’s military capabilities by stealing defense-related intellectual property and sharing it with its own military and defense industry as China develops new weapons and capabilities. Similarly, Chinese investment in European infrastructure—especially shipping terminals, utilities, and telecommunications networks—provides an excellent platform for intelligence-gathering on NATO military operations. In a worst-case scenario, China could weaponize its ownership or operation of infrastructure in Europe to frustrate, limit, or prevent US or allied use. In other cases, the Chinese threat to Europe manifests in the form of outright attacks. Chinese cyberattacks on European government, industry, military, academic, and civil institutions—including, reportedly, on hospitals during the pandemic—are relentless and massive. In 2014, NATO declared that cyberattacks could trigger the invocation of Article 5, the Alliance’s mutual-defense clause.

Increasingly, the links between Russia, China, and now Iran as well,  are a source of deep concern to Europe, the United States,  and other nations.

Americans are stunned at recent developments, including the takeover of major campuses by terrorist sympathizers, the Biden Administration’s use of the Justice Department to attack political opponents, and the media’s abandonment of journalistic ethics.  How did this come about?

For too long, our nation has been subjected to a forced deterioration by a collection of elitest politicians, biased media kingpins and self-proclaimed intellectuals who clearly despise much of what America is and much of what it stands for.

America brought about the greatest advance in freedom in history. Our Constitution has been a light to the entire planet. The USA is responsible for bringing more prosperity to more people than has ever occurred before. We have saved the world from Fascism, Nazism (shorthand for “National Socialism,”) and Communism. We have demonstrated that people of different nationalities, races and creeds could live together in harmony. Our science and economics have transformed the world into a far better place.

Those who hate the idea of individual rights seek to reverse those advances. They maintain that because we have, at times, been subjected to the same failings that all mankind shares, we should be knocked down, ignoring the reality that we have recognized those failings and reversed them, even as other parts of the globe have not.

In their desperate bid to divide and reduce America, there is no lie and no tactic they will not engage in. They seek to split us apart in any way possible. They will tell you that police are evil, while setting criminals free. They state that they can’t define what a woman is, and destroy decades of advances in female rights while labelling rationale individuals who oppose that nonsense that they are somehow biased. They abuse the courts for partisan purposes.

They have, unfortunately, made great advances in their despicable goal of replacing personal freedom with the totalitarianism of socialism, a philosophy which essentially states that you are too ignorant and unworthy to run your own life.

They have misused school funds to replace education with leftist indoctrination. They will openly lie in a corrupted and biased media. They will use false and unsubstantiated scientific data to persuade you that unless you give them the power to bring the entire economy under their thumb, the world will burn (after telling you several decades ago that it was about to freeze.) They will tell you that dramatic price increases, the direct result of their absurd economic and energy policies, were inevitable.

Because they feel more comfortable with dictatorships than with democracies, they have refused to enforce sanctions against nations such as Iran.  Those protests on the streets against Israel and muddled White House statements are all about that. They will cozy up and personally get rich from China while telling you there is nothing to worry about when the President and other top politicians sell their influence, allowing jobs to go overseas while underfunding our military. They will try to convince you that allowing clear, present and immediate threats such as Chinese surveillance balloons over the nation are OK.  They overlook stunning increases in enemy military power so they can continue to funnel funds to their friends through various federal programs.  

They spend tax dollars on programs that accomplish little, other than buying votes for themselves and spreading your money to their donors.

They will tell you that those who work with their hands must pay the college tuition of others, furthering the transfer of dollars to universities that spread their propaganda.

They will try to convince you that censorship is acceptable, under the guise of preventing “disinformation.”

They produce schemes to end the American way of life, forcing you out of home ownership with outrageous taxes, and out of your car with ever-increasing fees, gas prices, tolls, and more.

They will use every election scheme imaginable, including ballot harvesting, opposing voter ID, “ranked choice voting,” absurdly faulty voter registration rolls, and others, to get their way. They will drum up bogus charges to handicap candidates they oppose, while allowing real offenses by their candidates to go unpunished and unpublished.

Because so many citizens have refused to succumb to their assaults on freedom, they have allowed and encouraged vast millions with no affinity to our Constitution to illegally enter the nation.  

Their ultimate success is not inevitable. Understanding what they have done to assault freedom, and their determination to end the American way of life, is crucial to defeating this greatest threat to our nation that has ever existed.

The question of whether there will be cheating in the 2024 presidential election can now be answered affirmatively.  Much of the problem rests in the issue of illegal aliens voting in potentially significant numbers.

Observers have long speculated on why Democrats so stringently opposed measures to secure the U.S. southern border, despite the pleas of even their own fellow party members. As noted by the Center for Immigration Studies  “On January 11, Rep. Nathaniel Moran (R-Texas) introduced H. Res. 957—”Denouncing the Biden administration’s open-borders policies, condemning the national security and public safety crisis along the southwest border, and urging President Biden to end his administration’s open-borders policies”. That non-binding resolution isn’t exceptional, but what is out of the ordinary is that on the evening of January 17, 14 House Democrats (Reps. Colin Z. Allred (Texas); Yadira Caraveo (Colo.); Angie Craig (Minn.); Donald G. Davis (N.C.); Jared F. Golden (Maine); Vicente Gonzalez (Texas); Greg Landsman (Ohio); Susie Lee (Nev.); Jared Moskowitz (Fla.); Wiley Nickel (N.C.); Mary Sattler Peltola (Alaska); Marie Gluesenkamp Perez (Wash.); Eric Sorensen (Ill.); and Henry Cuellar (Texas))  voted with 211 of their GOP colleagues to pass it.”

While not openly confronting the Biden-Harris Administration, a number of big city mayors have also complained of the detrimental impact open borders has had on their jurisdictions.

Despite widespread opposition, the White House continued its border policy.  The reason is evident: bringing in a population dependent on Democratic largess, and obviously grateful to the current Administration, could turn the political tide in favor of that party. It’s happening far more rapidly than previously believed.

The acceleration is due to tough opposition to voter ID laws, as well as other measures geared towards stopping ballot security.  Even in GOP-leaning states, a comparatively small number of votes, coming illegally from non-citizens, could turn the tide in favor of the Democrats.

Most voters don’t believe state officials have done enough to prevent voting by illegal immigrants or to stop outside groups from interfering in elections.

The public has been paying attention. A Rasmussen survey in late August   found that “that 32% of Likely U.S. Voters say election officials in their state have done nothing to prevent voting by illegal immigrants or haven’t mentioned it, while 20% say officials have announced some steps but they are not sufficient. Eighteen percent (18%) say election officials have announced steps that sound effective in addressing the threat of illegal immigrants voting, and eight percent (8%) say officials have outlined a detailed plan and it sounds effective. Twenty-one percent (21%) are not sure.”

Democratic party leaders haven’t been shy about their advocacy to rapidly allow illegal aliens to vote. Former House Speaker Nancy Pelosi, appearing on Bill Maher’s program, advocated quickly turning these unlawful arrivals into citizens. California’s Democratic Party is so intent on allowing illegals to vote that its super-majority in the state legislature voted for a bill that would prohibit local governments from seeking to apply common-sense voter ID.

Democratic judges have even ignored voter demands for ballot security measures that would inhibit questionable voting practices. As noted by the New York Post “So much for no means no. That’s the message from the state Court of Appeals, which ruled last week that New Yorkers don’t need an excuse to cast an absentee ballot by mail when they’re otherwise able to vote in person — even though the voters themselves have directly rejected such a measure.”

There is pushback from some states. Texas Attorney General Ken Paxton   has opened an investigation into reports that organizations operating in Texas may be unlawfully registering noncitizens to vote in violation of state and federal law. 

In a Press Release, Paxton’s office reported that “Investigators from the Texas Attorney General’s Election Integrity Unit recently conducted undercover operations to identify potential voter registration of noncitizens in Texas. The investigation has already confirmed that various nonprofit organizations have been located outside Texas Department of Public Safety Driver License offices, operating booths offering to assist in voter registration for persons doing business at the driver’s license offices. But all citizens have already been presented an opportunity to register to vote as part of the process of renewing or being issued an identification card or driver’s license, so there is no obvious need to assist citizens to register to vote outside DPS offices—calling into question the motives of the nonprofit groups.” The release concluded that “Texans are deeply troubled by the possibility that organizations purporting to assist with voter registration are illegally registering noncitizens to vote in our elections. “

Measures such as ballot dumping in unsecured boxes, registration using drivers licenses issued to illegals, and others could well alter the outcome of the 2024 presidential race.

Photo: Boston ballot drop box

The House Foreign Affairs Committee’s GOP members have issued a stunning report outlining the actions by the Biden Administration that led to the deaths of thirteen American We reproduce key excerpts:

Over the course of three years, House Foreign Affairs Committee Republicans, led by Chairman McCaul, have conducted a thorough investigation into the U.S. withdrawal from Afghanistan… The investigation has revealed five primary conclusions:

1.The Biden-Harris administration was determined to withdraw from Afghanistan, with or without the Doha Agreement and no matter the cost. Accordingly, they ignored the conditions in the Doha Agreement, pleas of the Afghan government, and the objections by our NATO allies, deciding to unilaterally withdraw from the country.

2. The Biden-Harris administration prioritized the optics of the withdrawal over the security of U.S. personnel on the ground. For that reason, they failed to plan for all contingencies, including a noncombatant emergency evacuation (NEO) and refused to order a NEO until after the Taliban had already entered Kabul.

3. The Biden-Harris administration’s failure to prepare for a NEO and order a timely NEO created an unsafe environment at HKIA, exposing U.S. Defense Department and State Department personnel to lethal threats and emotional harm. As a result, 13 U.S. servicemembers were murdered by a terrorist attack on August 26, 2021. It was the deadliest day for the U.S. military in Afghanistan since 2012.

4. In the aftermath of the withdrawal, U.S. national security was degraded as Afghanistan once again became a haven for terrorists, including al Qaeda and ISISK. America’s credibility on the world stage was severely damaged after we abandoned Afghan allies to Taliban reprisal killings — the people of Afghanistan we had promised to protect. And the moral injury to America’s veterans and those still serving remains a stain on this administration’s legacy.

5. The Biden-Harris administration misled and, in some instances, directly lied to the American people at every stage of the withdrawal, from before the go-to-zero order until today. This coverup included mid-level administration officials all the way up to the Oval Office. And as this investigation reveals, the National Security Council and NSA Jake Sullivan were of the source of the majority of that misinformation campaign.

The report presents the findings of the committee majority’s investigation into the BidenHarris administration’s withdrawal from Afghanistan in 2021. The U.S. withdrawal from Afghanistan is understood to encompass the U.S. military retrograde, beginning with the “Go to Zero” order officially announced by President Biden on April 14, 2021, through the noncombatant evacuation operation (NEO) ordered by President Biden on August 15, 2021, as well as related planning by the White House, U.S. Department of State, and other federal agencies and their decision-making processes. The withdrawal culminated in the Abbey Gate terrorist attack on August 26, 2021, which killed 13 U.S. servicemembers, wounding another 45, and killed more than 170 Afghan civilians. The withdrawal concluded on August 30, 2021, when the last U.S. military aircraft left Afghanistan.

Over the course of three years, House Foreign Affairs Committee Republicans, led by Chairman McCaul, have conducted a thorough investigation into the U.S. withdrawal from Afghanistan, pursuant to the outlined methodology. The investigation has revealed five primary conclusions:

The Biden-Harris administration was determined to withdraw from Afghanistan, with or without the Doha Agreement and no matter the cost. Accordingly, they ignored the conditions in the Doha Agreement, pleas of the Afghan government, and the objections by our NATO allies, deciding to unilaterally withdraw from the country. The Biden-Harris administration prioritized the optics of the withdrawal over the security of U.S. personnel on the ground. For that reason, they failed to plan for all contingencies, including a noncombatant emergency evacuation (NEO) and refused to order a NEO until after the Taliban had already entered Kabul. The Biden-Harris administration’s failure to prepare for a NEO and order a timely NEO created an unsafe environment at HKIA, exposing U.S. Defense Department and State Department personnel to lethal threats and emotional harm. As a result, 13 U.S. servicemembers were murdered by a terrorist attack on August 26, 2021. It was the deadliest day for the U.S. military in Afghanistan since 2012. In the aftermath of the withdrawal, U.S. national security was degraded as Afghanistan once again became a haven for terrorists, including al Qaeda and ISISK. America’s credibility on the world stage was severely damaged after we abandoned Afghan allies to Taliban reprisal killings — the people of Afghanistan we had promised to protect. And the moral injury to America’s veterans and those still serving remains a stain on this administration’s legacy. The Biden-Harris administration misled and, in some instances, directly lied to the American people at every stage of the withdrawal, from before the go-to-zero order until today. This coverup included mid-level administration officials all the way up to the Oval Office. And as this investigation reveals, the National Security Council and NSA Jake Sullivan were of the source of the majority of that misinformation campaign.

The investigation upends the Biden-Harris administration’s continued claim that they “planned for all contingencies.” Instead, the State Department and White House’s tunnel vision that U.S. Embassy Kabul remain open resulted in a failure to properly prepare for worst case scenarios, including conducting an evacuation under Taliban rule. When that precise scenario manifested, the Biden-Harris administration was caught flat-footed and chaos ensued.

The failure to plan for all contingencies and order a NEO only after the Taliban seized Kabul directly resulted in chaos reigning at Embassy Kabul and HKIA. Droves of classified documents and systems were left behind, and American and Afghan passports were unnecessarily burned as pandemonium enveloped the embassy compound. One Embassy employee concluded, “We know that some of [the classified documents] are being used by the Taliban. Another Embassy employee explained there was no embassy roster available when it came time to evacuate. As a result, the employee went room to room to clear the embassy compound. Indeed, on the day of the evacuation, some embassy personnel were not even aware the Taliban had marched into Kabul. As consequence of the rapid military retrograde — rendering U.S. troop presence to less than 1,000 — and the failure to plan for a NEO, HKIA was overrun, and the airfield was forced to shut down for 48 hours.

Additional issues cropped up at every step of the way during the evacuation because of the Biden-Harris administration’s failure to plan for a NEO, including, but not limited to: There were insufficient military planes to conduct an airlift of this size, and the U.S. Department of Transportation waited until August 20th — five days after the country fell — to allow foreign civil aircrafts to conduct their own flights. Throughout the NEO, logistics operations responsible for the provision of food, medical support, clean water, vehicles, and other critical supplies did not have more than a one-day supply on hand. U.S. government personnel were at great risk of running out of food and water.

“Lily pads” for evacuees were not secured before the NEO began. It was not until August 19th that all three primary lily pads in Qatar, Bahrain, and Kuwait were operable. This delay resulted in multiple operational pauses of the evacuation, limiting the number of Americans and Afghan allies able to escape. To compensate for the Biden-Harris administration’s failure to plan for the inevitable NEO, volunteer organizations across the country mobilized to assist Americans, green card holders, and Afghan allies escape the Taliban. These groups were made up of veterans, active duty servicemembers, journalists, former government officials, congressional staffers, and in some instances, average Americans with no ties to Afghanistan who wanted to do their part. They worked for free at great expense to themselves — emotionally and financially — to track down evacuees across the country, get them through the Taliban checkpoints in Kabul, and finally on a plane to safety.

To compensate for the Biden-Harris administration’s failure to plan for the inevitable NEO, volunteer organizations across the country mobilized to assist Americans, green card holders, and Afghan allies escape the Taliban. These groups were made up of veterans, active duty servicemembers, journalists, former government officials, congressional staffers, and in some instances, average Americans with no ties to Afghanistan who wanted to do their part. They worked for free at great expense to themselves — emotionally and financially — to track down evacuees across the country, get them through the Taliban checkpoints in Kabul, and finally on a plane to safety.

Abbey Gate Attack

The failure to prepare for a NEO had ramifications not only for Americans and allies in Afghanistan, but U.S. personnel on the ground forced to evacuate desperate civilians in a hostile environment. Those concerns were sidelined by the Biden-Harris administration in favor of optics. Rather than concede their negligence, U.S. servicemembers and foreign service officers were directed to prioritize evacuating as many people as possible, no matter the threat posed to their lives.

Threat stream warnings regarding an attack at HKIA were consistent but vague. As a result, personnel on the ground were aware an attack was likely but could not identify a potential attacker with certainty given the breadth and ambiguity of those alerts. Abbey Gate, in particular, was exposed to multiple threats because it served as a main inroad into HKIA. On August 25th, Major General Chris Donahue selected Abbey Gate as being at highest risk of an attack in an assessment shared with General McKenzie. Despite that knowledge, little was done to reinforce protections around the gate. And ultimately, a decision was made by Brigadier General Farrell Sullivan to keep Abbey Gate open, primarily because British forces were still using the gate to evacuate individuals from Baron Hotel into HKIA. At that point, State Department officials on the ground pulled back its consular officers leaving only the U.S. Marines around when the bomb went off at 5:36:52 PM Kabul time on August 26^th.

One hundred and eighty-five people were killed in the attack, including 13 U.S. servicemembers. Their names are: Marine Lance Corporal David L. Espinoza Marine Sergeant Nicole L. Gee Marine Staff Sergeant Darin Taylor Hoover Army Staff Sergeant Ryan Christian Knauss Marine Corporal Hunter Lopez Marine Lance Corporal Rylee J. McCollum Marine Lance Corporal Dylan R. Merola Marine Lance Corporal Kareem M. Nikoui Marine Corporal Daegan W. Page Marine Sergeant Johanny Rosario Pichardo Marine Corporal Humberto A. Sanchez Marine Lance Corporal Jared M. Schmitz Navy Corpsman Maxton W. Soviak Countless people were wounded including 45 U.S. servicemembers. It was the deadliest day in Afghanistan for the U.S. military since 2012.

After the Abbey Gate attack, President Biden and Vice President Harris showed disregard and disrespect toward the Gold Star families of the 13 U.S. servicemembers killed at Abbey Gate, and the servicemembers injured in the attack. Almost immediately after the dignified transfer at Dover Air Base for 11 of the 13 servicemembers, media outlets reported President Biden “checked his watch multiple times” during the event. The White House attempted to deny the allegation, until photos surfaced proving he did. Almost three years later, Ms. Psaki continued to perpetuate the lie that President Biden did not check his watch in her memoir. After media reports debunked her falsehood, she was forced to retract it.

The Fallout

The fallout from the ill-advised withdrawal and ill-prepared NEO created a tidal wave of problems in Afghanistan, the United States, and around the world.

Seven billion dollars of U.S. weapons and up to $57 million in U.S. currency were left behind in Afghanistan for the Taliban to use and profit off of by selling to other terrorist regimes. Despite their claims of amnesty toward former Afghan government officials, the Taliban continue to carry out systematic and brutal reprisal killings. In fact, a NATO report written by the Defence Education Enhancement Programme found the Taliban were using U.S. military biometric devices and databases to hunt down America’s Afghan allies.

The catastrophic withdrawal at the hands of the Biden-Harris administration has created a crisis within the U.S. military and among American veterans. Recruitment and retention within the military are down, with experts pointing to the withdrawal as a significant factor. Servicemembers and veterans are also facing devastating moral injury. Each day, they are forced to reckon with the reality that terrorists they fought against for two decades — who their brothers and sisters died to defeat — are once again in power. They are also forced to stand by while their Afghan allies are trapped in Afghanistan, at the mercy of the Taliban. Scott Mann, the founder of Task Force Pineapple and a Green Beret testified to the committee, “Relinquishing Afghanistan…has become a moral injury on our veterans and military families. A moral injury is an injury to the soul. A violation of what we know to be right by leaders whom we trusted.”

Fears by the military regarding the United States’ limited over-the-horizon capabilities postwithdrawal have also come to fruition. The Biden-Harris administration has not conducted a single strike against ISIS-K since 2021. Meanwhile, according to a March 2024 Washington Institute study, “In the past year, [ISIS-K] has planned twenty-one external plots or attacks in nine countries, compared to eight plots or attacks in the previous year and just three between 2018 and March 2022.” The Biden-Harris administration’s willful blindness has left the United States once again vulnerable to attacks emanating from Afghanistan.

Indeed, on June 11, 2024, the FBI’s Joint Terrorism Task Force arrested eight individuals with ties to ISIS-K who entered the U.S. illegally through the southern border. That same month, the Department of Homeland Security identified over 400 persons of interest from Central Asia who had illegally crossed the U.S. southern border with the help of an ISISrelated smuggling network. Our adversaries, like Russia, China, and Iran, saw weakness during the chaotic and deadly evacuation, emboldening them. Less than one year later, Russia launched a full invasion of Ukraine. Today, Iran’s proxies are conducting a brutal war against our ally Israel, attacking our servicemembers in the region, and threatening global trade in the Red Sea. And China continues to ratchet up aggression in the Indo Pacific, including against Taiwan and the Philippines.

In language which will certainly have repercussions for the New York County case, the Supreme Court states that  “[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.”

This ruling is not absolute.  As is pointed out in a footnote intended to address concerns expressed in the concurring opinion of Justice Coney Barrett, Chief Justice Roberts states that “in a bribery prosecution [for instance], excluding ‘any mention’ of the official act associated with the bribe ‘would hamstring the prosecution’…of course the prosecutor may point to the public record to show the fact that the President performed the official act. And the prosecutor may admit evidence of what the President allegedly demanded, received, accepted, or agreed to receive or accept in return for being influenced in the performance of the act…[w]hat the prosecutor may not do, however, is admit testimony or private records of the President or his advisers probing the official act itself. Allowing that sort of evidence would invite the jury to inspect the President’s motivations for his official actions and to second-guess their propriety.”

In the New York criminal case, Donald Trump was not charged with receiving bribes or any similar wrong doing.  He was accused of falsifying his business records in an effort to conceal another crime, which remained unspecified until the time of his trial.  Those other crimes were an alleged violation of New York State election law, which was allegedly committed in an effort to violate either federal election law, federal tax law, or to falsify business records (yes, you read that right – Donald Trump allegedly falsified his business records, in an effort to falsify his business records).

As described by CNN, “Trump’s lawyers argued in a 55-page filing that the jury’s guilty verdict should be vacated because the district attorney’s office relied on evidence at trial related to Trump’s official acts as president, which Trump’s lawyers asserted should not have been permitted in light of the Supreme Court’s recent immunity decision….[i]n their filing, 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.’” https://www.cnn.com/2024/07/11/politics/trump-new-york-conviction-argument/index.html

The filing by the former President’s defense team also asserts that “Westerhout was forced to testify about national security matters and her work for Trump, calling prosecutors’ questioning ‘invasive…[t]his invasive compelled testimony included information regarding President Trump’s official-capacity ‘work habits,’ ‘preferences,’ ‘relationships and contacts,’ and ‘social media’ practices at the White House,’ Trump’s lawyers argued.”

Most galling to Donald Trump’s lawyers is the fact that Judge Merchan was asked to delay the New York trial until after the Supreme Court had issued its immunity ruling. As CNN reports, [a]t bottom, the ‘pressure campaign’ theory turned on [District Attorney Alvin Bragg’s] efforts to assign a criminal motive to actions that President Trump took in 2018 as the Commander in Chief responsible for the entire Executive Branch,’ his lawyers wrote. The Manhattan district attorney ‘urged this Court to front-run the Supreme Court on a federal constitutional issue with grave implications for the operation of the federal government and the relationships between state and federal officials. The record is clear: [Bragg] was wrong, very wrong.’”

Will these arguments succeed?  Will Judge Merchan reverse Donald Trump’s conviction?

Judge Merchan did delay the former President’s sentencing while he considers the motion to dismiss.  But if we are to predict Judge Merchan’s actions in the future, we should be guided by his actions in the past.  By this measurement, I don’t recommend holding your breath while you wait for justice from this judge.

To continue with the blunt analysis I provided to Congress regarding Judge Juan Merchan’ s conduct of the trial of Donald Trump, this court has taken every opportunity possible to violate the former President’s rights.  Instead of dismissing a legally insufficient indictment, that failed to apprise Donald Trump of all the crimes with which he was charged, Judge Merchan allowed the prosecution to add additional charges during trial, and then instructed the jury that they did not have to return a unanimous verdict regarding those added charges.

Judge Merchan repeatedly allowed prejudicial testimony to be entered into evidence against Donald Trump (who could forget the titillating, and entirely irrelevant testimony of Stormy Daniels), and prevented the former President from testifying in his own behalf, by allowing prosecutors to use the civil verdicts and penalties assessed against Donald Trump, were the former President to have testified.

Further, Judge Merchan did not recuse himself from hearing the case, despite having displayed his bias against the former President by making contributions to the Biden campaign and to anti-Republican organizations.  He then compounded this error by staying on the case, even after it was revealed that his daughter was profiting from the trial by raising money for Democrat candidates. 

Now we have evidence 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.

Knowing that Judge Juan Merchan committed the errors I outline above during trial, I believe he will find a way to justify his actions once again, and let stand the unlawful conviction of former President Donald Trump.

Don’t look for justice from Judge Juan Merchan.  Instead, continue to expect a reversal of Donald Trump’s illegal conviction from the New York State Court of Appeals.

Judge John H. Wilson served on the bench in NYC

Photo: Pixabay