Foreign Policy Update – USA Gov Policy

Despite the extensive media coverage of Putin’s every statement, there are events occurring in the world outside of the potential conflict between Russia and Ukraine. Some of those are taking place in India where there are mounting questions over the Modi government’s suspected use of spyware on its own citizenry and Pakistan Prime Minister Imran Khan. In 2017 Prime Minister Narendra Modi signed off on the purchase of Pegasus spyware designed by the Israeli cyber-arms firm, NCO Group. Since that time there have been numerous allegations of the Indian government using the Pegasus spyware to read text messages, track calls, collect passwords, track locations, and listen in to conversations using the target’s own cell phone microphone and camera, as well as harvesting the information from downloaded apps.

This week there are reports according to Michael Kugelman, writing in Foreign Policy’s South Asia Brief, that Indian media have revealed that “two cybersecurity experts told the [Indian Supreme Court appointed] committee there are “strong indicators” that the allegations are true. Although denied by the government, both supporters and their opponents see this as hurting India. The former argue that the accusations mark the latest attempt to malign India. Opponents say it is an example of the government cracking down on civil liberties.

Elsewhere in India, the country remains embroiled in an ongoing border conflict in the Ladakh region of the Himalayan Mountains near China. On Wednesday of this week the two nuclear-armed countries held their 14^th round of discussions since June 2020. Although Indian officials characterized the talks as “constructive” there was no movement on either side. At immediate issue is the Hot Springs area where troops are dug in for the winter months. Overall, there are several thousand troops along the Line of Actual Control (LAC), which extends for nearly 2,200 miles and is not demarcated. The 24-month long Ladakh geopolitical crisis reflects domestic concerns in both nation-states with neither government willing to accept a compromise solution. During this crisis reports came out accusing Chinese soldiers of beating their Indian counterparts with nail-studded rods and with some soldiers thrown to their death in freezing river water. Others Indian soldiers died from asphyxiation and hyperthermia. Despite the crisis last year bilateral trade with China topped $100 billion. But all is not well in the region.

Both countries have begun building permanent infrastructure along the Sino-Indian border indicating that this dispute is not the typical short border clash between the two but has the potential for a more serious conflict. The new garrison and airstrips suggest that the conflict may escalate into a more extensive kinetic warfare in the future. A recent South China Morning Post article pointed out that China recently deployed a long-range rocket launcher near the border. Kyle Gardner, an Sino-Indian border expert, warns that this latest development points to a “sustained, broader militarization of the LAC” and highlights the heightened risks of a small-scale conflict. At question is whether China and India’s long-standing agreement on the non-use of firearms may soon be discarded.

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India has been highly critical of China’s handling of the Covid pandemic while China views India’s security ties and involvement with the US in the Quadrilateral Security Dialogue as threatening to the communist giant. On Friday President Biden announced its Indo-Pacific strategy will remain much the same as in previous administrations. Craig Singleton, a senior fellow at the Foundation for Defense of Democracies, points out that “The US will continue to muddle along in the region. This plan lacks specificity, lacks detail, and there are major gaps in terms of strengthening America’s geoeconomic position in Asia.” While the world watches and waits to see what aggressive moves Putin makes toward the Ukraine, other large and small states continue to face their own challenges. Jacqueline Feldscher, writing in Defense One, says that “In its first year, the Biden administration consistently talked about the importance of diplomacy and partnerships, and its Indo-Pacific strategy is no different. The strategy mentions the need to strengthen the Quad, as well as increase cooperation with Japan and South Korea, boost collaboration with India, and expand the Association of Southeast Asian Nations.” So far, the Biden Administration has not made much progress in this area, leaving India and other states in the region to question whether, like Ukraine, they can bet on counting on the United States in a crisis.

Daria Novak previously served in the U.S. State Department

Illustration: Pixabay

Quick Analysis

Judge Merchan continues to deny justice to Donald Trump

In August of 2024, we discussed the US Supreme Court’s decision in Trump v. United States. We described the three tiered system enunciated by Chief Justice Roberts to determine whether or not the actions taken by the President of the United States are entitled to immunity from criminal prosecution or not. The first tier are acts within the President’s constitutionally mandated authority which are subject to “absolute immunity.” The next are acts that may have “presumptive immunity,” and are subject to examination with evidence that rebuts the presumption of immunity. The third are acts which are unofficial, and which enjoy no immunity. In September, we also discussed the effect this decision should have on the New York County criminal case currently pending against President-elect Trump before Judge Juan Merchan. We cited to a CNN report, which described the evidence used against Donald Trump at the trial of that matter: “Trump’s lawyers pointed to testimony at trial – including from White House officials Hope Hicks and Madeleine Westerhout – they argued should not have come before the jury…'[a]ll of Hicks’s testimony concerning events in 2018, when she was serving as the White House Communications Director, concerned official acts based on [Presidential] authority for which President Trump is entitled to absolute immunity,’ Trump’s attorneys argued. ‘[the Supreme Court’s ruling] specifically forbids prosecutors from offering ‘testimony’ from a President’s ‘advisers’ for the purpose of ‘probing the official act.’” Sure enough, as Chief Justice Roberts stated in the Presidential Immunity decision, “[a]llowing prosecutors to ask or suggest that the jury probe official acts for which the President is immune would thus raise a unique risk that the jurors’ deliberations will be prejudiced by their views of the President’s policies and performance while in office. The prosaic tools on which the Government would have courts rely are an inadequate safeguard against the peculiar constitutional concerns implicated in the prosecution of a former President.” At the time, we stated that “Judge Merchan allowed testimony regarding Donald Trump’s official acts as President, acts which enjoy absolute immunity and which cannot be used against him, or even be entered into evidence in a criminal trial, a situation which could have been avoided had Judge Merchan delayed the trial until he’d received the guidance of the US Supreme Court.” Nonetheless, we predicted that Judge Merchan “will find a way to justify his actions once again, and let stand the unlawful conviction of former President Donald Trump.” You know how much we hate to say we were right…but…we were right. “This Court…finds that the evidence related to the [President-elect’s] claims relate entirely to unofficial conduct and thus, receive no immunity protections,” Judge Merchan wrote in his December 16, 2024 decision. “Further, even if this Court were to deem all of the contested evidence…as official conduct falling within the outer perimeter of Defendant’s Presidential authority, it would still find that the People’s use of these acts as evidence of the decidedly personal acts of falsifying business records poses no danger of intrusion on the authority and function of the Executive Branch, a conclusion amply supported by non-motive-related evidence.” In so ruling, the Court denied Donald Trump’s motion to dismiss his New York County conviction. Let us examine these findings, in light of the evidence admitted at the President-elect’s trial, and then compare that evidence to the acts granted absolute immunity by the US Supreme Court. In his decision, Judge Merchan discusses the testimony of Hope Hicks, who served as the Communications Director for the Trump White House. “Defendant argues that in her roles at the White House, any communications between Ms. Hicks and Defendant must receive absolute immunity…as Defendant’s ability to speak freely to Ms. Hicks was a core function of the Executive. According to Defendant, because Ms. Hicks wielded executive power on his behalf, authority that exists pursuant to Article II of the Constitution, any communications [President Trump] had with [Hicks] are subject to absolute immunity,” the Court wrote. Judge Merchan also noted that “[t]he People argue that the communications Defendant had with Ms. Hicks…constitute unofficial acts not entitled to any level of immunity.” In his inevitable agreement with the arguments presented by Manhattan DA Alvin Bragg’s office, Judge Merchan wrote “Defendant’s argument that any communication he had with Ms. Hicks is subject to absolute immunity by virtue of the position she held in the White House is mistaken…the President himself may speak in his unofficial capacity as a candidate or party leader, and certainly he can do so in his private capacity as well. Any argument that private conduct transforms into official conduct by communicating about the same to an individual with a particular title is without merit.” Thus, it is Judge Merchan’s position that the conversations Donald Trump had with his Communications Director are not entitled to immunity, even though those discussions were held at the White House, while Donald Trump was serving as President of the United States, merely because those discussions were not related to official Executive Branch activities. Sounds possibly reasonable – until you examine the Presidential Immunity decision more closely. In September, we wrote that “the statement made by Chief Justice Roberts in his majority opinion in the Presidential Immunity case [is significant]; ‘Presidents cannot be indicted based on conduct for which they are immune from prosecution…[t]estimony or private records of the President or his advisers probing such conduct may not be admitted as evidence at trial.’” This statement by Chief Justice Roberts points to a blanket immunity for ANY discussions had between the President and his advisors, regardless of the nature of those communications. Further, we noted that the Supreme Court issued the following warning: “[t]he government…contends that a jury could ‘consider’ evidence concerning the President’s official acts ‘for limited and specified purposes,’ and that such evidence would ‘be admissible.’” In rejecting that argument, Chief Justice Roberts states “[t]hat proposal threatens to eviscerate the immunity we have recognized. It would permit a prosecutor to do indirectly what he cannot do directly – invite the jury to examine acts for which a President is immune from prosecution […]