HJow China views its destint

Claims of a period of “recovery of lost glory” is a central narrative emanating from the Chinese Communist Party (CCP) today. President Xi Jinping and the CCP senior leadership recount the last dynastic period under the reign of Kangxi as the norm against which it measures its military, political, and economic strength today. China’s leaders take political cover under the red banner of returning to China what is rightfully owed to it by the West. President Xi employs this narrative to defend his country’s theft of foreign intellectual property, territorial incursions on neighboring countries, and even uses it to justify espionage operations inside the United States.

Over the last decade the Obama Administration did little to discourage or punish China for illicitly acquiring and diverting critical and emerging American technologies. Times have changed in 2020. In response to Xi’s recent egregious behavior President Trump called the Chinese leader’s bluff on May 29, 2020, just days before the 31^st anniversary of the massacre at Tiananmen Square. He issued a presidential proclamation suspending entry of a targeted group of nonimmigrant students and researchers from China into the United States.

A presidential proclamation is a set of written instructions from the President aimed at those outside of the US Government. It is similar to the purview of an Executive Order which governs presidential directives on internal Executive Branch activity. The recent “Suspension of Entry” proclamation states that China is using unrestricted entry into the country to engage in a “wide-ranging and heavily resourced campaign to acquire sensitive United States technologies and intellectual property” to modernize its military and it is a long-term threat to the safety and security of the American people.

As of June 1, 2020, entry into the US by Chinese who receive funding, are employed by, or conduct research at, or on behalf of, an entity that implements or supports the PRC’s “military-civil fusion strategy” is suspended. The President’s goal is to stop China’s acquiring and diverting critical and emerging technologies to the communist giant which it then incorporates into its advanced military capabilities and plans. As expected after the announcement, Zhao Lijian who is spokesman for China’s Ministry of Foreign Affairs, blasted the order saying China’s students have “lawful rights and interests” in receiving an American education and technology.

The presidential proclamation also instructs Secretary of State Pompeo to determine if Chinese nationals already on US soil under F or J visas present a threat and should have their visas suspended. The document itself is clear and doesn’t impact Chinese students in fields that lack a military application. The practicality of defining what is a dual-use technology is less well-delineated. While a positive step toward securing critical and emerging US military technologies and American commercial intellectual property, more needs to be done to stop the infiltration of Chinese spies in the United States.

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In one case, Ye Yanqing was placed on the FBI’s Most Wanted List earlier this year after studying at Boston University’s Department of Physics, Chemistry and Biomedical Engineering for about two years. She served as a Lieutenant in the PLA who had studied openly at a top Chinese military academy before coming to the US. While at Boston University she used WeChat to collaborate with, and report to, her Chinese superiors regularly on her research concerning a risk assessment model designed to decipher data for military applications. Her case is only one among many the FBI are pursuing. There also is growing concern in Washington that a number of American STEM professors have been recruited by China into its “Thousands Talents” program and are being paid to provide information to China.

After the US recognized the People’s Republic of China, Washington issued visas to about 12,000 Chinese students each year. Twenty years later that jumped to 98,235 studying on American university campuses across the country. By 2019 the number more than trebled to over 369,500, making the US the top destination for Chinese studying abroad. In a typical year only 12,000 American students study in Chinese universities. Most are in non-STEM programs, with many there only to study the language.

There is a different narrative in American academia where a full 1/3 of the total international body of students in American universities comes from communist China, with most paying the full price to attend school. Universities eager to accept the lucrative “cash cow” STEM students from China often overlook the national security implications. FBI agents visiting Ivy League school administrators, including those at Harvard University, find the schools typically dismiss the threat as a non-issue or have no plan in place to monitor or restrict access to sensitive technologies and research. It could be naivete if not for the fact that Chinese students added over $13 billion to the US economy during the 2017-18 school year.

DARIA NOVAK served in the United States State Department during the Reagan Administration, and currently is on the Board of the American Analysis of News and Media Inc., which publishes usagovpolicy.com and the New York Analysis of Policy and Government. Each Saturday, she presents key updates on U.S. foreign policy from the State Department.

Illustration: Temple of Heaven in Beijing (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 […]