Month: July 2023

Recently, in the case of Missouri v. Biden, Federal Judge Terry Doughty of the Western District of Louisiana issued an injunction against various members of the Biden Administration.  Normally, such an order would not cause much of a stir outside of legal circles.  But this order, and this case, are different.

“A judge…prohibited several federal agencies and officials of the Biden administration from working with social media companies about ‘protected speech,'” is the way the Associated Press described the ruling.  “(A) White House official who was not authorized to discuss the case publicly and spoke on condition of anonymity,” said “(t)his administration has promoted responsible actions to protect public health, safety, and security when confronted by challenges like a deadly pandemic and foreign attacks on our elections.” 

Further, in opposing the injunction, “Administration lawyers said the government left it up to social media companies to decide what constituted misinformation and how to combat it. In one brief, they likened the lawsuit to an attempt to put a legal gag order on the federal government and ‘suppress the speech of federal government officials under the guise of protecting the speech rights of others…(the) proposed injunction would significantly hinder the Federal Government’s ability to combat foreign malign influence campaigns, prosecute crimes, protect the national security, and provide accurate information to the public on matters of grave public concern such as health care and election integrity.’”  

Really?  Is that what happened?  Did a federal judge in Louisiana prohibit the Biden Administration from “working with social media companies about ‘protected speech?'”  Just how was the Biden Administration “working with” these companies?  What “about” “protected speech?”  And why does the AP put the term “protected speech” in quotation marks?

For the truth, we direct the reader to Judge Doughty’s order itself.  

“This case is about the Free Speech Clause in the First Amendment to the United States Constitution,” the Court begins its opinion. “The explosion of social-media platforms has resulted in unique free speech issues – this is especially true in light of the COVID-19 pandemic. If the allegations made by Plaintiffs are true, the present case arguably involves the most massive attack against free speech in United States history.  In their attempts to suppress alleged disinformation, the Federal Government, and particularly the Defendants named here, are alleged to have blatantly ignored the First Amendment’s right to free speech.”

The opinion is 155 pages long, and more than 80 pages of Judge Doughty’s decision details the factual basis for his injunction.  These facts are a stunning indictment of the efforts members of the Biden Administration have made to suppress free speech, calling even the truth “misinformation” if it did not suit the narrative the government wished to impose on the American public.

“(S)ince 2018,” Judge Doughty continued, “federal officials…have made public statements and demands to social-media platforms in an effort to induce them to censor disfavored speech and speakers…(federal officials) have threatened adverse consequences to social-media companies, such as reform of Section 230 immunity under the Communications Decency Act, antitrust scrutiny/enforcement, increased regulations, and other measures, if those companies refuse to increase censorship. Section 230 of the Communications Decency Act shields social-media companies from liability for actions taken on their websites…the threat of repealing Section 230 motivates the social-media companies to comply with (federal officials) censorship requests.”

It is a fair point to note that Joe Biden was not President in 2018 – Donald Trump was.  Therefore, it is fair to ask just which federal officials “induced” social media platforms “to censor disfavored speech” before Biden was sworn in as President on January 20, 2021?

“The FBI, along with Facebook, Twitter, Google/YouTube, Microsoft, Yahoo, Wikimedia Foundation, and Reddit, participate in a Cybersecurity and Infrastructure Security Agency (CISA) ‘industry working group’…at…(the Industry) meetings, social-media companies shared disinformation content, providing a strategic overview of the type of disinformation they were seeing. The FBI would then provide strategic, unclassified overviews of things they were seeing from Russian actors…in the Industry meetings, the FBI raised concerns about the possibility of ‘hack and dump’ operations during the 2020 election cycle.”

Judge Doughty’s findings of fact continue; “On September 4, 2019, Facebook, Google, Microsoft, and Twitter along with the…CISA held a meeting to discuss election issues. (FBI officials also) attended…(t)he focus of the meeting was to discuss with the social-media companies the spread of ‘disinformation’…(f)or each election cycle, during the days immediately preceding and through election days, the FBI maintains a command center around the clock to receive and forward reports of ‘disinformation’ and ‘misinformation.’ The FBI requests that social-media platforms have people available to receive and process the reports at all times…(b)efore the Hunter Biden Laptop story breaking prior to the 2020 election on October 14, 2020, the FBI and other federal officials repeatedly warned industry participants to be alert for ‘hack and dump’ or ‘hack and leak’ operations…”

“Hunter Biden was not referred to in any of the CISA Industry meetings. The mention of ‘hack-and-leak’ operations involving Hunter Biden is significant because the FBI previously received Hunter Biden’s laptop on December 9, 2019, and knew that the later-released story about Hunter Biden’s laptop was not Russian disinformation…(Mark) Zuckerberg testified before Congress on October 28, 2020, stating that the FBI conveyed a strong risk or expectation of a foreign ‘hack-and-leak’ operation shortly before the 2020 election and that the social-media companies should be on high alert. The FBI also indicated that if a trove of documents appeared, they should be viewed with suspicion…”

“After the Hunter Biden laptop story broke on October 14, 2020, (FBI officials) refused to comment on the status of the Hunter Biden laptop in response to a direct inquiry from Facebook, although the FBI had the laptop in its possession since December 2019.”

In other words, the FBI knew that Hunter Biden’s laptop was not “disinformation;”  yet that same FBI “repeatedly warned” social media outlets to beware of a potential foreign “hack and leak” operation-  thus causing social media to suppress legitimate news stories regarding that same laptop.

The findings of fact by Judge Doughty establish what many of us knew, but have repeatedly been told is not true – the Federal Bureau of Investigation, while Donald Trump was President, actively interfered in the 2020 election by suppressing and discrediting information that would have been damaging to Joe Biden.

These jaw-dropping, legally established facts are only the tip of the iceberg of the efforts made to suppress Free Speech once the Biden Administration took office. 

“On January 23, 2021, three days after President Biden took office, Clarke Humphrey who at the time was the Digital Director for the COVID-19 Response Team, emailed Twitter and requested the removal of an anti-COVID-19 vaccine tweet by Robert F. Kennedy, Jr. Humphrey sent a copy of the email to Rob Flaherty, former Deputy Assistant to the President and Director of Digital Strategy, on the email and asked if ‘we can keep an eye out for tweets that fall in this same genre.’ The email read, ‘Hey folks-Wanted to flag the below tweet and am wondering if we can get moving on the process of having it removed ASAP.’”

“On February 6, 2021, Flaherty requested Twitter to remove a parody account linked to Finnegan Biden, Hunter Biden’s daughter and President Biden’s granddaughter. The request stated, ‘Cannot stress the degree to which this needs to be resolved immediately,’ and ‘Please remove this account immediately.’ Twitter suspended the parody account within forty- five minutes of Flaherty’s request…”

“On February 9, 2021, Flaherty (contacted) Facebook in regard to its COVID- 19 policy, accusing Facebook of causing ‘political violence’ spurred by Facebook groups by failing to censor false COVID-19 claims, and suggested having an oral meeting to discuss their policies. Facebook responded the same day and stated that ‘vaccine-skeptical’ content does not violate Facebook’s policies. However, Facebook stated that it will have the content’s ‘distribution reduced’ and strong warning labels added, ‘so fewer people will see the post.’ In other words, even though ‘vaccine-skeptical’ content did not violate Facebook’s policy, the content’s distribution was still being reduced by Facebook.”

Incidents like these, as well as many, many more involving the White House, FBI and other federal agencies, led Judge Doughty to one conclusion: “The Plaintiffs are likely to succeed on the merits on their claim that the United States Government, through the White House and numerous federal agencies, pressured and encouraged social-media companies to suppress free speech. Defendants used meetings and communications with social-media companies to pressure those companies to take down, reduce, and suppress the free speech of American citizens. They flagged posts and provided information on the type of posts they wanted suppressed. They also followed up with directives to the social-media companies to provide them with information as to action the company had taken with regard to the flagged post. This seemingly unrelenting pressure by Defendants had the intended result of suppressing millions of protected free speech postings by American citizens.”

In addition to these startling findings, the Court added that “(w)hat’s really telling is that virally all of the free speech suppressed was ‘conservative’ free speech. Using the 2016 election and the COVID-19 pandemic, the Government apparently engaged in a massive effort to suppress disfavored conservative speech…as exhaustedly listed above, Defendants ‘significantly encouraged’ the social-media companies to such extent that the decisions should be deemed to be the decisions of the Government. The White House…additionally engaged in coercion of social-media companies to such extent that the decisions of the social-media companies should be deemed that of the Government. It simply makes no difference what decision the social-media companies would have made independently of government involvement, where the evidence demonstrates the wide-scale involvement seen here.”

In granting an injunction prohibiting contact between social media companies and various government officials of the Biden Administration, the Court emphasized the ongoing nature of the threat presented by the defendants to Free Speech.  “Although the COVID-19 pandemic is no longer an emergency,” Judge Doughty writes, “it is not imaginary or speculative to believe that in the event of any other real or perceived emergency event, the Defendants would once again use their power over social-media companies to suppress alternative views. And it is certainly not imaginary or speculative to predict that Defendants could use their power over millions of people to suppress alternative views or moderate content they do not agree with in the upcoming 2024 national election…Notably, a draft copy of the (Department of Homeland Security’s) ‘Quadrennial Homeland Security Review,’ which outlines the department’s strategy and priorities in upcoming years, states that the department plans to target “inaccurate information’ on a wide range of topics, including the origins of the COVID-19 pandemic, the efficacy of COVID-19 vaccines, racial justice, the U.S. withdrawal from Afghanistan, and the return of U.S. Support of Ukraine.”

Thus, the Court found that the “Plaintiffs have shown that not only have the Defendants shown willingness to coerce and/or to give significant encouragement to social-media platforms to suppress free speech with regard to the COVID-19 pandemic and national elections, they have also shown a willingness to do it with regard to other issues, such as gas prices, parody speech, calling the President a liar, climate change, gender, and abortion.”

As of this writing, the only official reaction from the Biden Administration is a statement from the Justice Department indicating their intention to appeal Judge Doughty’s order to the Fifth Circuit.   But in the face of the government’s silence on this issue, many of us can take a great degree of satisfaction in the extensive fact finding conducted by Judge Terry Doughty.

We were right.  Our voices were being silenced by a government that believed it had a monopoly on the truth, and when the oppression wasn’t coming from the Administration itself, it was coming from government agents acting against the interests and wishes of their own President and his Administration.

And now we have the evidence to support our knowledge.

Judge Wilson served on the bench in NYC

China is rapidly and diligently gearing up for war in the very near future.

In March, China’s leader Xi repeatedly called for war readiness, backed up his call for combat with a 7.2% increase in defense spending, adding to a budget that has already doubled in recent years. Having already consolidated his own powers in an effort to streamline his control over the nation, Xi has informed his top military leaders to “Dare to fight.”

He has also prepared the civilian population for imminent conflict, establishing new air-raid shelters in key locations. Official Chinese documents discuss integrating the whole of society into the war effort. Wang Shumei and Liu Hongshun, researchers at the Military Legal Research Institute of the Academy of Military Sciences emphasize that “National defense education for all should be educated and participated by all. Strengthening and improving national defense education should be taken as the common responsibility of the whole party, army and society…”

2027 appears to be the date Xi has in mind. As quoted in American Military News, he stated that “Our armed forces, with a focus on the goals for the centenary of the People’s Liberation Army (PLA) in 2027, should work to carry out military operations, boost combat preparedness and enhance military capabilities.”

Grant Newsham, writing for Asia Times writes that last October’s Communist Party Congress put China on a path to war. “The groundwork has been laid and the dirty work done. It’s not as if previous Chinese leaders had been nice guys, but Xi is the first to combine the capability to go to war with the messianic desire to do so – if he can’t get what he wants via intimidation. He sees himself as a man of destiny who will restore China to its rightful place in the world…Capabilities of the People’s Liberation Army (PLA) have developed to the point that the Communist Party leadership (and Xi in particular) believe China can conduct a short, sharp war (or maybe even a long, sharp war) near its borders and succeed.”

Some U.S. Military officials have taken note.  In January, the head of the USAF Air Mobility Command Michael Minihan circulated a memo stating: “I hope I am wrong. My gut tells me we will fight in 2025. [Chinese President Xi Jinping] secured his third term and set his war council in October 2022. Taiwan’s presidential elections are in 2024 and will offer Xi a reason. United States’ presidential elections are in 2024 and will offer Xi a distracted America. Xi’s team, reason, and opportunity are all aligned for 2025.”

Marty Reep, wrting in the Journal of Indo-Pacific Affairs has a similar conclusion. “ China has made it clear that it is working to become the world’s preeminent superpower.⁴Over the past few decades, China has been building up its armed forces, … In December 2020, China changed its maritime laws and put the Coast Guard under direct control of the People’s Liberation Navy (PLAN)—the first time ever for the PLAN. Two months later, in February 2021, China updated its maritime law and a gave its Coast Guard the authority to fire on foreign vessels.”

A Newsweek analysis notes that Russian sources also believe Beijing is set for combat. “Ikolai Vavilov, an expert on China, [states that] ‘Since coming to power, comrade Xi has been getting ready for war,” …He gave an order to prepare an army that is capable of winning war.”

While Beijing does all it can to prepare for war, the current White House continues to downplay military preparedness. It continues to propose budgets that, accounting for inflation, actually cut the Pentagon’s purchasing ability.  As China continues to add to what is already the world’s largest navy, America’s fleet is shrinking. Perhaps most fundamentally, the U.S. industrial base continues to be woefully unprepared to respond to a crisis in which a rapid buildup of military supplies would be required.

Photo: Naval vessels assigned to a destroyer flotilla with the navy under the PLA Southern Theater Command fire main guns at mock targets during a coordination training exercise in early May, 2023. (eng.chinamil.com.cn/Photo by Wang Jian)

In August of 2022, we discussed whether or not the Biden Administration has the authority to forgive outstanding student loans.  At that time, we detailed a series of instances where the Courts had determined that various Biden initiatives were in excess of the authority granted the Executive Branch by the Congress, and therefore unconstitutional.  We predicted that this measure would also be found illegal. 

We also discussed the Biden Administration’s belief that the HEROES Act of 2003 authorized the Secretary of Education to engage in a wholesale amnesty of student loan debt.  In that regard, we quoted Jonathan Turley, a Law Professor at George Washington University, who said, “President Biden has been a constitutional recidivist in executive overreach in a series of major court losses.  The authority cited is highly challengeable. To assume such a massive power to excuse as much as $500 billion, that authority should be both express and clear. It is not.”

Well, you know how much we hate to say, “I told you so.”  But…we told you so.

On June 30, 2023 the US Supreme Court decided the case of Biden v Nebraska, one of two cases brought in challenge of the government’s student loan forgiveness plan,    and as we predicted, the Supreme Court thought little of the use of the HEROES Act to justify this scheme.

But before we delve into the reasoning behind the Supreme Court’s latest effort to protect the Constitution’s separation of powers, one issue should be clarified.  

When we discussed the state of the litigation on student loan forgiveness in November of 2022, we noted that there were two cases headed to the Supreme Court; Biden v. Nebraska, brought by six states, and Department of Education v. Brown, brought by individual borrowers. Both of these cases turned on the legal issue of standing – that is, who has “suffered an injury,” and therefore has the right to bring a case.

In Biden v. Nebraska, six states complained of a loss of tax revenue as a result of student loan forgiveness.  The lower court called these losses “speculative,” and found that the states did not have standing to bring their case.  Conversely, in Department of Education v. Brown, the lower court found that two individuals who would not be eligible for benefits under the student loan forgiveness plan had standing since “‘Plaintiffs have a concrete interest in having their debts forgiven.’  Thus, these Plaintiffs ‘inability to obtain the full benefit of debt forgiveness under the Program flows directly from the Program’s eligibility requirements.’”

Ironically, the Supreme Court reversed each lower court opinion.  In Brown, Justice Alito found “that (Plaintiffs) fail to establish that any injury they suffer from not having their loans forgiven is fairly traceable to the (student loan forgiveness) Plan.”   Meanwhile, in Biden v. Nebraska, Chief Justice Roberts found that the State of Missouri, through  “the Missouri Higher Education Loan Authority (MOHELA), a public corporation that holds and services student loans,” had standing to sue.  “Under the Secretary’s plan,’ Roberts writes, “roughly half of all federal borrowers would have their loans completely discharged…MOHELA could no longer service those closed accounts, costing it, by Missouri’s estimate, $44 million a year in fees that it otherwise would have earned under its contract with the Department of Education…(t)his financial harm is an injury in fact directly traceable to the Secretary’s plan.”

In his opinion, Roberts gave some background on the HEROES Act. “Shortly after the September 11 terrorist attacks, Congress became concerned that borrowers affected by the crisis—particularly those who served in the military—would need additional assistance. As a result, it enacted the Higher Education Relief Opportunities for Students Act of 2001. That law provided the Secretary of Education, for a limited period of time, with ‘specific waiver authority to respond to conditions in the national emergency’ caused by the September 11 attacks…Rather than allow this grant of authority to expire by its terms at the end of September 2003, Congress passed the Higher Education Relief Opportunities for Students Act of 2003 (HEROES Act)…That Act extended the coverage of the 2001 statute to include any war or national emergency— not just the September 11 attacks. By its terms, the Secretary ‘may waive or modify any statutory or regulatory provision applicable to the student financial assistance programs under title IV of the [Education Act] as the Secretary deems necessary in connection with a war or other military operation or national emergency.’”

During the pandemic, “then-Secretary of Education Betsy DeVos announced that she was suspending loan repayments and interest accrual for all federally held student loans,” a necessary emergency measure, given that many borrowers were out of work and unable to make their payments.  “But in August 2022, a few weeks before President Biden stated that ‘the pandemic is over,’ the Department of Education announced that it was once again issuing ‘waivers and modifications’ under the Act—this time to reduce and eliminate student debts directly.”

Chief Justice Roberts states his ruling in clear and plain language; “The Secretary (of Education) asserts that the HEROES Act grants him the authority to cancel $430 billion of student loan principal. It does not. We hold today that the Act allows the Secretary to ‘waive or modify’ existing statutory or regulatory provisions applicable to financial assistance programs under the Education Act, not to rewrite that statute from the ground up… statutory permission to ‘modify’ does not authorize ‘basic and fundamental changes in the scheme’ designed by Congress…(t)he Secretary’s…’modifications’…were not ‘moderate’ or ‘minor.’ Instead, they created a novel and fundamentally different loan forgiveness program…(f)rom a few narrowly delineated situations specified by Congress, the Secretary has expanded forgiveness to nearly every borrower in the country.”

As Robert’s puts it bluntly, “(t)he Secretary’s plan has ‘modified’ the (HEROES Act) only in the same sense that ‘the French Revolution ‘modified’ the status of the French nobility’—it has abolished them and supplanted them with a new regime entirely…the Secretary’s plan…in essence (allows) the Secretary unfettered discretion to cancel student loans. It is ‘highly unlikely that Congress’ authorized such a sweeping loan cancellation program ‘through such a subtle device as permission to ‘modify.’”

The Biden Administration tried to justify its power grab by stating that “(t)he whole point of the HEROES Act…is to ensure that in the face of a national emergency that is causing financial harm to borrowers, the Secretary can do something,” and that “the unprecedented nature of the Secretary’s debt cancellation plan only ‘reflects the pandemic’s unparalleled scope.’”  But Roberts disposes of this argument quickly.  

“The question here is not whether something should be done; it is who has the authority to do it,” the Chief Justice writes.  “(T)he Secretary of Education claims the authority, on his own, to release 43 million borrowers from their obligations to repay $430 billion in student loans. The Secretary has never previously claimed powers of this magnitude under the HEROES Act… Under the Government’s reading of the HEROES Act, the Secretary would enjoy virtually unlimited power to rewrite the Education Act… (t)he ‘economic and political significance’ of the Secretary’s action is staggering by any measure…(a) budget model issued by the Wharton School of the University of Pennsylvania estimates that the program will cost taxpayers ‘between $469 billion and $519 billion,’ depending on the total number of borrowers ultimately covered…It amounts to nearly one-third of the Government’s $1.7 trillion in annual discretionary spending.”  

Therefore, if this use of the HEROES Act were found legal, “the Secretary (of Education could then claim) the authority to exercise control over ‘a significant portion of the American economy.’”  In essence, then “(t)he Secretary’s assertion of administrative authority has ‘conveniently enabled [him] to enact a program’ that Congress has chosen not to enact itself…Congress did not unanimously pass the HEROES Act with such power in mind. ‘A decision of such magnitude and consequence’ on a matter of ‘earnest and profound debate across the country’ must ‘res[t] with Congress itself, or an agency acting pursuant to a clear delegation from that representative body.’”

Thus, Roberts reaches the same conclusion the Supreme Court has reached in a number of decisions involving efforts by the Biden Administration to seize power from Congress; “’The basic and consequential tradeoffs’ inherent in a mass debt cancellation program ‘are ones that Congress would likely have intended for itself’…In such circumstances, we have required the Secretary to ‘point to clear congressional authorization’ to justify the challenged program…And as we have already shown, the HEROES Act provides no authorization for the Secretary’s plan even when examined using the ordinary tools of statutory interpretation—let alone ‘clear congressional authorization’ for such a program.”

But will President Biden cease his efforts to unconstitutionally seize power from Congress?  Don’t bet on it.

According to Caleb Kruckenberg of the Pacific Legal Foundation, writing in the New York Post, “(w)hile everyone’s focus has been on the administration’s outrageous cancellation stunt, the DOE has been working tirelessly to accomplish an even more disastrous policy: a new Income-Driven Repayment rule… (u)nder the new plan, in a variety of formulations, the secretary proposes to dramatically reduce the monthly payments of most borrowers, with millions looking at payments of $0, while also reducing the time to forgiveness to as short as 10 years. In other words, while styled as a rule that simply tinkers with the details of existing income-based repayment programs, it effectively does the same work as the cancellation effort: It writes off the debts of millions of college-educated borrowers. And it does so permanently – applying to future borrowers…(t)he rule itself claims it would cost taxpayers at least $138 billion… The Penn Wharton Budget Model estimated that the actual program costs between $333 billion and $361 billion over 10 years.  Estimates that account for tuition inflation and future borrowing costs put government expenditures as high as $1 trillion. The old cancellation policy’s $500 billion price tag now almost seems quaint.”

Unfortunately, this scheme might be more successful than the effort to cancel student loans.  This measure is based on the Higher Education Act of 1965, and as we discussed last August,  “one would think the Biden Administration would argue that over the course of 50 years, Congress has granted the Secretary of Education increased power over student loans, including control over loan extensions and forgiveness, and that this latest initiative is nothing new in the increasing burden the Department of Education has placed on the American taxpayer.”

In other words, stayed tuned.  Biden v. Nebraska may prove to be a short-lived victory against executive overreach, while the real war was lost by Congress when it gave its authority away to the Secretary of Education in 1965.

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

Illustration: Pixabay

The “march for justice” led by the head of the Wagner Group, Yevgeny Prigozhin, declared that its goal was to “teach a lesson to Russia’s corrupt and deceitful military leadership, whose blunders in managing the war against Ukraine has resulted in huge losses,” according to the publication Meduza. It is not the first time in Russian history that internal leadership conflicts resulted in death. In a video released on June 23 Prigozhin claims the Russian Ministry of Defense was “deceiving the president” and that it is the military “washing with blood.” How it started remains a mystery, as does its ending. What analysts in Washington do surmise is that the so-called mutiny has exposed multiple fissures in the Kremlin’s military-political architecture, says Sergey Sukhankin of the Jamestown Foundation.

The root cause of the conflict appears to date to the Syrian and Libyan civil wars and the 2018 arguments Prigozhin had with Russian Minister of Defense (MoD) Sergei Shoigu. At the time, a large number of Wagner’s man in Syria lost their lives in an allied attack known as the “Deir ez-Zor Massacre.” Sukhankin points out that the strike was the result of an MoD disagreement with the Wagner Group. It did not end with one attack. In 2019 Wagner’s man were again hit in Libya by a strike that killed dozens of battle-hardened soldiers. Although the MoD and Wagner Group were at odds, Putin needed Prigozhin when his special military operation in Ukraine dragged on and he needed results. Kommersant on June 27 reported that Moscow allocated $1 billion in annual support to the group and another $1 billion to Prigozhin’s business contacts.

 The division was further exacerbated when there was a “normalization” of ammunition, meaning Wagner’s forces received lesser amounts comparable to what Russian soldiers received. The mercenary was also restricted from recruiting additional men out of Russian prisons to replace those lost. Sukhankin says that “Prigozhin, and his fighters, began to openly threaten and humiliate various Russian defense officials. Additionally, the Wagner chief presented an ultimatum that he would withdraw his forces from the frontlines if ammunition supplies were not dramatically increased and General Sergey Surovikin was not appointed as the liaison between Wagner and the MoD.” Less talked about in the Western media is that the Chechen leadership joined forces with MoD. Dmitry Utkin, Sukhankin notes, a Wagner commander covertly threatened the Chechens stating, “we have known each other since the First and Second Chechen wars.” Utkin sided with the Russian federal troops. Later, he adds, a “Wagner social media account posted an image of destroyed Grozny with the unambiguous inscription, ‘We can repeat.’”

Western analysts point out that the Wagner Groups claims and threats were not heard by Putin, despite Prigozhin noting that MoD-subordinated volunteer formations deserted strategic positions in Bakhmut and his ridiculing the Gazprom-created PMC “Torch” for surrendering positions after encountering Ukrainian forces. Putin continued to ignore Prigozhin and supported Shoigu’s demand for an all volunteer force that would sign a contract agreeing to their subordination to the MoD by July 1. As the  Wagner-MoD conflict entered its sixth month, the MoD issued an ultimatum that the Wagner Group sign a contract relinquishing its “uncontrollable” status in the hierarchy of the Russian Armed Forces. Wagner reacted as the document meant that his mercenaries, and possibly Wagner himself, would lose their autonomy.

This led to the June 23 YouTube statement in which he criticized sharply a number of actions taken by Putin. He stated that the war occurred because the MoD intentionally deceived the Russian people, Putin ignored that the Ukrainian president was ready to negotiate, and Russian losses were much higher that officially published. Prigozhin also accused Russian authorities of acting as occupiers, not the saviors of the Donbas region. Sukhankin says Prigozhin “declared his intent to punish Shoigu and Chief of the Russian General Staff Valery Gerasimov, whom he had previously accused of enabling the ‘genocide of the Russian people.’” The mutiny ended as quickly with Putin offering three options: go to Belarus, sign a contract with the MoD and remain in the warzone, or “return back home,” according to Izvestiya.

Internal leadership conflicts that end in violence are not unknown in Russian history. What is enlightening is Prigozhin’s statement explaining that these events were “normal” and that he had “shaken everyone up.” He mocked the MoD saying that in Rostov they “demonstrated a master class. That is how February 24 should have looked.” With Russian history as a guide, the world can expect that new events will unfold indicating that the “mutiny” is far from over.   

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

Illustration: Pixabay

NATO has concluded its most important summit in decades, and the implications for the future of both the organization itself as well as for the world in general are of exceptional significance.

Secretary General Jens Stoltenberg noted that “We have just concluded an historic NATO Summit. Over the past two days, we took major decisions to adapt our Alliance for the future. We agreed NATO’s most detailed and robust defence plans since the Cold War. We strengthened our commitment to defence investment. We agreed to bring Ukraine closer to the Alliance, and step up support for the long haul. And we deepened our partnerships around the world even more.  I have just chaired the inaugural meeting of the NATO-Ukraine Council. From now on, NATO and Ukraine will meet in the Council to discuss and decide as equals. This is a significant step to move Ukraine closer to NATO.”

Earlier this year, Finland became the 31st member of the alliance. At the meetings just held in Vilnius, Lithuania, it was announced that Sweden would be admitted as well, probably by October. This adds an enormous new geographical advantage, both because of the proximity of the two nations to the Russian border, as well as giving NATO a more advantageous position in the Arctic, which Moscow has been militarizing, placing the U.S. and its allies at a severe disadvantage. Both Finland and Sweden had maintained a neutral stance since the end of the Second World War, but reacted with deep concern over Putin’s expansionist plans and actions. It became apparent to both that the former KGB official sought to both rebuild the Soviet Union and to resume that Empire’s threats to all bordering nations.

The Nordic nation’s bid had been delayed by Turkiye’s demands that Stockholm first take steps to address what Ankara maintained was a tolerance for a group President Erdogan considered to be prone to terrorism.  In return, his request for American F-16 fighter jets was approved by Washington.

The organization, which will officially grow to 32 nations once Sweden’s admission becomes official, reaffirmed its commitment to assisting Ukraine, ending Putin’s hope that the west would eventually tire of the ongoing war. Ukraine’s President Zelensky had hoped to gain a specific timetable for his nation to also join, but it was decided that the war must first be won before that could occur.

Equally as important as the admission of Sweden and Finland and the growing assistance to Ukraine was the attention turned to broader threats to the free world. In addition to the North American and European nations, leaders from Australia, Japan, New Zealand, and South Korea attended. Stoltenberg stated that “NATO is a regional Alliance, but we face global challenges. What happens in Europe matters to the Indo-Pacific, and what happens in the Indo-Pacific matters to North America and Europe. Beijing’s global assertiveness and Moscow’s war against Ukraine require even closer coordination between NATO, the EU and our Indo-Pacific partners.  We condemn North Korea’s nuclear and missile programmes, including its latest missile launch: These violate multiple UN Security Council Resolutions and pose a threat to regional and global security. NATO is reinforcing our ties with Australia, Japan, New Zealand and South Korea with tailored partnership programs, including joint work on issues like maritime security, new technologies, cyber, climate change, and resilience. We will work even more closely together, standing strong for the rules-based international order.”

The growing and already intense military, political and economic relationship between China and Russia makes the concern over Beijing’s vast nuclear and naval strength a major worry for the alliance. Moscow and Beijing have already engaged in joint military maneuvers in the Mediterranean, directly threatening NATO members.

Photo: NATO Sec. Gen. Jens Stoltenberg and Ukrainian President Zelensky (NATO)

As is well known at this point, former President Donald Trump was indicted by a Federal Grand Jury, and is currently facing a criminal trial for these charges in the Southern District of Florida.  The Indictment can be viewed here.

In general, the Indictment is predicated upon a search of Trump’s Florida residence, Mar A Lago conducted by 30 FBI Agents from the bureau’s Washington DC office, using a warrant obtained from a Florida Federal Magistrate.  Shortly after the search, we discussed the reasons this search warrant is in violation of the Fourth Amendment’s prohibition against general warrants.

In Part 1, we explained why this violation of the Fourth Amendment must lead to the suppression of all evidence obtained in the FBI’s illegal and outrageous search of Mar A Lago.  (Frank, please put a link to Part 1 here).  We also explained why the suppression of the allegedly classified documents seized during this illegal search would (and must) lead to the dismissal of most, if not all charges in the Indictment.

Today we will discuss some more issues and problems relating to Special Counsel Jack Smith’s Indictment.

The most obvious and glaring concern relates to the first 31 counts brought against former President Trump – that is, 31 separate violations of 18 USC Sec. 793(e). (Each count is predicated on an individual allegedly classified document recovered during the illegal search of Mar A Lago.)  Also known as the Espionage Act, this statute reads as follows:   “Whoever having unauthorized possession of, access to, or control over any document…map…or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted, or attempts to communicate, deliver, transmit or cause to be communicated, delivered, or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it.”

It is important to highlight this particular language of the statute; “the possessor has reason to believe  (the information) could be used to the injury of the United States or to the advantage of any foreign nation.” 

The typical Indictment brought by the majority of prosecutors only give a bare bones description of the actions of the defendant that are in violation of the law.  For instance, an Indictment charging a Murder would accuse the defendant of causing the death of the victim with the intent to cause that death, by firing a bullet into the heart of said victim.  The indictment would not typically tell you the make and caliber of the gun, nor would it tell you whether or not the victim and defendant were known to each other prior to the shooting.

Here, Smith has provided us with what is known as a “talking” Indictment – that is, he gives us an extensive explanation of the facts upon which the Indictment is based.  27 pages of facts to be precise.

According to the Indictment, “As president, Trump had lawful access to the most sensitive classified documents and national defense information gathered and owned by the United States government…over the course of his presidency, Trump gathered…official documents and other materials in cardboard boxes…the classified documents Trump stored in boxes included information regarding defense and weapons capability of both the United States and foreign countries…the unauthorized disclosure of these classified documents could put at risk the national security of the United States…”

There are two instances described by Smith’s Indictment regarding Trump’s alleged disclosure of classified information.  “In July 2021…during an audio-recorded meeting with a writer, a publisher and two members of his staff, none of whom possessed a security clearance, Trump showed and described a “Plan of Attack” that Trump said was prepared for him by the Department of Defense.  Further, “In August or September of 2021…Trump showed a representative of his political action committee who did not possess a security clearance a classified map related to a military operation…”

Regarding the first disclosure, Trump allegedly called the “Plan of Attack” “highly confidential” and “secret.”  In the second instance, Trump allegedly said he should not be showing the PAC representative the map. 

It should be noted that a review of the 31 documents which form the basis for each individual count does not clarify which documents are the basis for the two disclosures described earlier in the indictment.  Not a single one of the documents is described as either a “Plan” or a “Map,” although Number 11 is described as an “undated document concerning military contingency planning of the United States.”

Let us assume, for the sake of argument, that Trump did exactly what he is accused of doing – that he showed classified documents or maps to several individuals who did not possess a security clearance.  Nonetheless, do either of these incidents as described in the Indictment fit the description of the state of mind necessary to be in violation of 18 USC Sec. 793(e), that is, “the possessor has reason to believe  (the information) could be used to the injury of the United States or to the advantage of any foreign nation”?   

For instance, does the Indictment state that Trump expressed any intention to provide any foreign country with an advantage over the United States by disclosing this information?  No, it does not.  Does the Indictment state that Trump intended harm to the interests of the United States by his disclosure?  Again, the answer is no.

Finally, is there any allegation that any of the persons who received this information did then provide that information to any foreign nation, or make any effort to harm the United States and its interests?  Once more, the answer is no. There is no allegation made in the indictment that these individuals went on to either injure the United States or act to the advantage of any foreign nation.  

According to the BBC, however, “(t)he part of the law referenced by the special counsel’s indictment in Mr Trump’s case…does not say that the suspect must be working with another country to deliberately harm the US… Under the law, prosecutors will not be required to prove that Mr Trump knew that the information he possessed could harm national security interests, but rather that any reasonable person would understand the harm it could do.” 

Yet, this analysis is bolstered by reference to other people charged under the Espionage Act, such as Julius and Ethel Rosenberg, Jonathan Pollard and Chelsea Manning – all spies, or at the very least, persons intent on harming the United States and giving an advantage to a foreign government.  

In a time not so long ago, a prosecution under the Espionage Act caused concern among civil libertarians.  As described by the National Constitution Center, “(t)hroughout American history, free speech has often been tested during times of war.  During World War I, President Woodrow Wilson pushed for new laws that criminalized core First Amendment speech.  Congress passed the Espionage Act shortly after the U.S. entered the war. The Act made it a crime to convey information intended to interfere with the war effort… (this law was) directed at socialists, pacifists, and other anti-war activists.  The Wilson Administration argued that (this act was) essential to the war effort and prosecuted thousands of anti-war activists under their various provisions.  While modern scholars view (the Espionage Act) as violating core free speech protections, the Supreme Court at the time upheld these convictions.”   

Now it is mostly those on the political right who are troubled by the prosecution of former President Trump under the Espionage Act.

Another issue to be considered is brought up by former Acting US Attorney General Matthew Whitaker, who said “the interplay between the Presidential Records Act, which says all documents are covered by that act, and the Espionage Act…I think is going to be the most important issue that the courts are going to have to decide.” 

In fact, the Presidential Records Act (PRA) of 1978, “established a…statutory structure under which Presidents…must manage the records of their Administrations… Specifically, the PRA.. Places the responsibility for the custody and management of incumbent Presidential records with the President… Requires that the President and his staff take all practical steps to file personal records separately from Presidential records….Establishes a process by which the President may restrict and the public may obtain access to these records after the President leaves office; specifically, the PRA allows for public access to Presidential records through the Freedom of Information Act (FOIA) beginning five years after the end of the Administration, but allows the President to invoke as many as six specific restrictions to public access for up to twelve years…(and) Codifies the process by which former and incumbent Presidents conduct reviews for executive privilege prior to public release of records.”

“After a presidency, the responsibility for the custody, control, preservation of, and access to presidential records shifts to the (National Archives).”  However, significantly, “(t)he PRA does not provide the former President with a process for disposing of presidential records after leaving office.”

As most readers will recall, Trump was involved in extensive negotiations with the National Archives over which of his records were “Presidential” and which were “personal” when the debate was settled by the FBI and a search warrant.  But charging the former President with a violation of the criminal Espionage act, as opposed to suing him under the civil Presidential Records Act does not settle the matter.

To understand the difference, “let’s examine the famous CLINTON SOCKS CASE...Key point: The case is not about Bill Clinton’s cat named Socks…(r)ather, it involves tape recordings of conversations between President Clinton and historian Taylor Branch intended to serve as a personal diary of sorts, and which eventually formed the basis of Branch’s 2009 book, “The Clinton Tapes.” According to Branch, Clinton would store the tape recordings in his sock drawer for safekeeping and to ensure that staff didn’t find, and possibly leak, the tapes.  In 2010…Judicial Watch sued the National Archives and Records Administration (NARA), demanding that it obtain custody of the tapes and deposit them in the Clinton Presidential Library. Judicial Watch argued that Clinton should have included the tapes among the records transferred to NARA at the end of his presidency, and that NARA had to take steps to obtain the records. Judge Amy Berman Jackson dismissed the case because Judicial Watch did not identify anything that NARA could do to retrieve the tapes from Clinton. Jackson further noted that NARA was powerless to classify the records as presidential: ‘[T]he PRA does not confer any mandatory or even discretionary authority on the Archivist to classify records.’”  

Trump himself believes that the Presidential Records Act, and not the Espionage Act should be applied here.  “Not only was Bill Clinton never even considered for criminal prosecution based on the tapes he took, but when he was sued for them, he won the case,” the former President said in remarks made after his federal arraignment. “Judge Amy Berman Jackson’s decision states: ‘Under the statutory scheme established by the Presidential Records Act, the decision to segregate personal materials from Presidential records is made by the President during the President’s term, and in the President’s sole discretion’…(i)n other words, whatever documents a president decides to take with him, he has the right to do so. It’s an absolute right. This is the law. And that is something that people have now seen and it couldn’t be more clear. They ought to drop this case immediately.”

Naturally, it should be pointed out that Donald Trump is charged with more than just taking allegedly classified documents and declaring them to be personal records.  He is also accused of making use of those supposedly classified records in at least two instances, under circumstances where he had “reason to believe  (the information) could be used to the injury of the United States or to the advantage of any foreign nation.”  But, if he is authorized to keep these documents under the PRA, whether marked “classified” or not, he is also authorized to make use of those documents as he wishes.

Though many legal minds do not believe the Presidential Records Act is applicable here, there are arguments which will have to be considered by a court before the matter could ever go to trial.  In particular, the PRA “granted an exclusive right of former presidents to maintain custody and control of presidential papers accrued during their terms in office.  Arguably, it includes classified documents…(f)or more than a decade, it was the considered opinion of the Department of Justice that the PRA conferred a unique right on former presidents to keep whatever presidential records they want, and the government has no authority to seize them. The National Archives agreed. A president has the sole discretion to segregate and dispose of records…(f)orty-five years ago, Congress passed the Records Act to memorialize what previous presidents had always been permitted to do as a matter of tradition and practice. This is important since it is incumbent on courts to interpret statutes consistent with legislative intent. As The Wall Street Journal noted in a recent editorial, ‘If the Espionage Act means Presidents can’t retain any classified documents, then the PRA is all but meaningless.’ Quite right.”  

In other words, if the Court concludes that the Presidential Records Act, and not the Espionage Act is applicable to former President Trump’s retention of all documents seized by the FBI in its raid at Mar A Lago, then the first 31 counts of the Indictment must be dismissed.

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

Iran’s missile and nuclear capabilities, along with its military weapons cooperation with Russia and North Korea, render it one of the world’s most significant dangers.

The Islamic state has a new ballistic missile, named “Kheibar” that can launch a one and a half ton payload over 1,200 miles. That, combined with Tehran’s ability to place satellites into space, and the shared technology it receives from North Korea’s highly advanced ICBM program, makes the nation a major threat. Haaretz reports that, according to Israeli sources, Iranian Space Tech Brings Tehran Closer to ICBM Capabilities. rockets that send satellites into orbit could also launch nukes.

A Washington Institute study reveals that “Tehran’s nuclear and regional activities are part of a single strategy that aims to paralyze stronger foes, so Washington’s policies for responding to each challenge should likewise overlap considerably.”

Iran cheated from the start of the already flawed nuclear deal, the Obama-era Joint Comprehensive Plan of Action (JCPOA.)  Iran had agreed to eliminate its stockpile of medium-enriched uranium, cut its stockpile of low-enriched uranium by 98%, and reduce by about two-thirds the number of its gas centrifuges for 13 years. One of the key weaknesses of the deal was that the restrictions on developing atomic bomb ingredients would only last for about 15 years, after which it was unrestrained. Even if all parties had stuck to the agreement, and there was no cheating (Iran did cheat) the nuclear threat from Tehran would be looming.

According to the Gatestone Institute, “Ever since President Joe Biden assumed office, Iran has been freely enriching uranium … and violating sanctions…Since 2021, the Biden Administration has been cozying up to Iran in a way that has often seemed agonizingly embarrassing to entice it back to the disastrous 2015 “JCPOA” nuclear deal of the Obama Administration. Mercifully those efforts did not succeed: the new deal would still most likely have enabled Iran, after a few years, legitimately to have all the nuclear weapons it liked.

The crisis-point is already at hand. Iran has sufficient nuclear fuel to develop atomic weapons right now.  Their path is similar to that followed by both Pakistan and North Korea. Despite the Biden Administration’s attempt to reach some sort of deal by basically giving Tehran almost everything it wants, the nations military and economic allies Russia and China have the ability to negate any pressure the U.S. establishes.

In a 2022 Time magazine article, Ehud Barak the former Prime Minister of Israel, noted that “This summer, Iran will turn into a de-facto threshold nuclear state. …. After more than 20 years of trying, Iran is about to cross the point of no return in becoming a member of the ‘nuclear club.’”

Similar to the manner in which Russia and the U.S. have used their nuclear arsenals to deter each other, Iran could use its weapons to gain greater regional influence.  There has been, over the past two years, an almost total reversal of America’s Middle Eastern successes during the Trump Administration.  The Abraham Peace Accords, and the close relations between the Saudis and the U.S., as well as the image that America presented a sufficiently muscular presence to deter Iranian (and Russian) aggression has been replaced by growing closeness between Saudi Arabia and China and a perception by others in the region that the current White House is accommodating Iran and has a reluctance to come to the aid of allies.

Iran has stepped into that vacuum.  Its nuclear power combined with its military relationship with Russia presents a new and dangerous environment. Add China’s commercial deals to the mix, and a volatile situation is apparent.

Illustration: Pixabay

The alliance between the United States and the United Kingdom is and has been the linchpin of world peace and western defense for over a century. Joe Biden is threatening to end that “Special Relationship.”

The term “special relationship” was originally coined by Prime Minister Winston Churchill as early as 1944 to describe the close alliance and cooperation between the United States and the United Kingdom. According to the U.S. State Department, “The United States has no closer ally than the United Kingdom, and British foreign policy emphasizes close coordination with the United States. Bilateral cooperation reflects the common language, ideals, and democratic practices of the two nations. Relations were strengthened by the United Kingdom’s alliance with the United States during both World Wars, in the Korean conflict, in the Persian Gulf War, in Operation Iraqi Freedom, and in Afghanistan, as well as through its role as a founding member of the North Atlantic Treaty Organization (NATO). The United Kingdom and the United States continually consult on foreign policy issues and global problems and share major foreign and security policy objectives.”

Many believe that Biden’s Irish background has prompted an anti-British attitude. Biden’s family originates from two Irish Counties, Mayo and Louth.  He has frequently discussed his roots. Britain has been the occasional focus of his jokes.  Yahoo News notes that, preceding a trip to England, “…his mother, Catherine Finnegan, hated the English so much that she told her son she would rather sleep on the floor than sleep in a bed where the monarch had slept.”

The latest manifestation of the President’s ill feelings towards the “Special Relationship” is his opposition to the appointment of Robert Ben Wallace a British politician and former soldier who has served as Britain’s Secretary of State for Defence since 2019, as the next Secretary-General of NATO.

Britons were critical of the manner in which Biden withdrew U.S. forces from Afghanistan.  The U,K. had vigorously cooperated with America in its move to punish terrorists for its 911assault on the United States, resulting in thousands of civilian casualties.

At the time of Biden’s Afghanistan move, Wallace, was quoted in the British Guardian newspaper : “I’m absolutely worried that failed states are breeding grounds for those types of people. It’s why I felt this was not the right time or decision to make because al-Qaida will probably come back. “I think the deal that was done in Doha was a rotten deal. It effectively told a Taliban that wasn’t winning that they were winning, and it undermined the government of Afghanistan and now we’re in this position where the Taliban have clearly the momentum across the country. “The United States are leaving, we are leaving alongside them, and that leaves a very, very big problem on the ground developing with the Taliban, obviously with the momentum.

The latest manifestation of the President’s ill feelings towards the “Special Relationship” is his opposition to the appointment of Wallace as NATO’s new secretary general.

UK Prime Minister Rishi Sunak had sought Biden’s support for Wallace’s bid. The President admitted the candidate was “Very qualified.” Wallace has been instrumental in assisting the Ukraine in getting vital weapons to oppose Russia’s invasion. He has received key support from Poland and other of NATO’s eastern members.  Biden chose to back two other candidates, Dutch Prime Minister Mark Rutte and Denmark’s’ Metter Frederiksen.

The U.K.’s Daily Mail publication believes that Biden’s opposition arises from the fact that Wallace once served the British Army in Northern Ireland.

  Biden’s proclivity to insert his personal and partisan goals into official statements  has, according to his critics, violated the Hatch Act, which prohibits the use of official powers to advance partisan political goals.
Illustration: Pixabay