Deeper Danger Behind Russia’s INF Violation, Part 2

Russia has persistently violated the Intermediate Nuclear Forces Treaty, (INF) and China, never a signatory to the pact, is free to develop any such weapons it chooses.

House Armed Forces Committee Chair Mac Thornberry noted earlier this year, “It is foolish to try and pick and choose what aggression we will stand against and which we will let go unanswered. It is not enough to advocate for a more robust cyber response to Russia’s attempts to meddle in our elections but waiver on our response to their renewed nuclear or territorial ambitions. Likewise, we can’t simply build up our missile defenses and nuclear deterrent but leave significant cyber intrusions unanswered. We have to be willing to do it all.”

In response to partisan criticism of the White House decision to leave the INF treaty, the House Armed Service Committee issued the following response:

National Security leaders from both parties have been concerned about Russia’s violation of the Intermediate-range Nuclear Forces (INF) Treaty for some time. After repeated calls from Congressional leaders, repeated votes to hold Russia accountable, at least four hearings on Treaty violations over four years, and warning from senior military commanders and national security experts, Russia refused to return to compliance with the treaty. As threats from Russia and China mount, President Trump has little choice but to withdraw from a treaty only the United States is adhering to.

Russian Cheating Is Nothing New: Obama administration officials were concerned about Russian INF cheating as far back as 2008, and concerns have only been growing:

· In 2008, according to a later interview, then-Undersecretary of State for Arms Control and International Security Affairs Rose Gottemoeller, Russia started testing “a ground-launched cruise missile that flies to ranges banned by the treaty. The banned ranges are between 500 and 5,500 kilometers. We are quite sure they have tested a capable missile that flies to those ranges, and they tried to get away with it.”

· In 2013, HASC Chairman McKeon wrote twice to President Obama to express the Committee’s concerns about Russian violations of arms control agreements. Then-Senator John Kerry expressed concerns about Russian cheating, according to the Daily Beast. While the Obama Administration claims to have raised the issue with Russia, President Obama threatened to veto the FY13 NDAA because it would have forced his administration to make a determination on Russian cheating.

· In 2014, the then-Chairmen of the House Armed Services, Foreign Relations, and Intelligence Committees wrote to President Obama reinforcing their concerns about Russian violations. That same year the Obama administration concluded that Russia had violated the INF Treaty. According to the New York Times, this was “the most serious allegation of an arms control treaty violation that the Obama administration has leveled against Russia.”

· In 2016, Chairmen Thornberry and Nunes again wrote to President Obama, urging his administration to take Russian violations seriously.

· In 2017, Air Force General Paul Selva, Vice Chairman of the Joint Chiefs of Staff confirmedthat Russia has deployed a new type of cruise missile that violates the INF Treaty. The Trump Administration imposed sanctions on Russia for violating the treaty in December 2017.

· In the spring of 2018, Russian President Vladimir Putin publicly announced new classes of nuclear weapons that would violate the INF Treaty.

The Threat From China Is Growing: Over the past two decades, China has developed numerous missile systems that far outrange U.S. systems. United States’ compliance to INF, coupled with unconstrained Chinese missile development, has contributed to a significant disparity in ballistic missile force structure which may have strategic and operational impacts in the Indo-Pacific region.

· “Largest and most diverse missile force in the world”: According to Admiral Harris, formerly the Commander for U.S. Pacific Command, the PLA Rocket Force (PLARF) controls the largest and most diverse missile force in the world, with an inventory of more than 2,000 ballistic and cruise missiles. This fact is significant because the U.S. has no comparable capability against 95% of the PLARF’s missiles due to our adherence to the INF Treaty with Russia.

· The United States has no comparable capability due to INF restrictions: The INF Treaty prevents the United States from developing comparable capabilities against the following operational Chinese missiles: DF-11 SRBM, DF-26 IRBM, DF-16 SRBM, DF-4 IRBM, DF-15 SRBM, HN-3 Cruise Missile, HN-2 Cruise Missile, DF-21 MRBM, among several others.

Congress Has Acted Repeatedly: Members from both sides of the aisle, and in both chambers, have voted repeatedly to hold Russia accountable:

· Since 2014, the House Armed Services Committee has held four hearings into Russia’s violation of the INF Treaty.

· In March of 2014, a bipartisan group in the House and Senate introduced a resolution to hold Russia accountable for its violations of the INF Treaty, a version of which was included in the FY15 NDAA.

· The FY15 NDAA included additional measures aimed at Russia’s treaty violations.

· The FY17 NDAA banned companies who contributed to Russia’s violation of the INF Treaty from doing business with the U.S. government.

· The FY18 NDAA authorized funding to counter INF violations, including research on the potential development of U.S. missiles that would travel between 500 and 5,500km. It also required the executive branch to develop a plan to sanction Russia and key persons for non-compliance with the INF Treaty.

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Photo: Iskander Missile (Russian Ministry of Defense)

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 […]