Author: Daria Novak

 Putin’s not giving up. That’s the consensus among Russia watchers in the intelligence community in Washington. The news in recent days reported on preparations by Kiev for the upcoming Ukrainian offensive to retake territory now in Russian control. The Russian General Staff responded by reorganizing two new military districts surrounding Moscow and St. Petersburg, an Azov naval district and on its western border, created two new joint forces. President Putin effectively scrapped the decade-old reforms instituted by Anatoly Serdyukov and restored “Soviet patterns of military organizations” that “puts Moscow in a position to wage offensive war along a broad front from Finland to Moldova,” according to Paul Goble of the Jamestown foundation. Putin, cornered, may be more dangerous today than a year ago. He may see this move as a last chance to save some part of the Russian Federation.

The new Russian plan, first announced by Defense Minister Sergei Shoigu last December, flushes out in detail changes in the Russian command structure. Politnavigator.net, on June 5, says out that Russians commanders are not happy with Serdyukov’s reforms that had eliminated the Moscow and Leningrad military districts and forced tank units to focus instead on regional structures. According to reports, current commanders view the Serdyukov doctrinal and organizational reforms as forcing the Russian military in a defensive position that precludes easily launching an offensive operation.

Military officers, according to sources in Washington, point to a number of reasons for the change. NATO’s expansion to include Finland, which borders Russia on the northwest, is given as a driving force. The degradation of Moscow’s relations with the West, that may lead to wider war in Europe, also are viewed as contributing factors for the realignment. Reforms, when mentioned in open sources in Russia, typically cite the urgency of the war in Ukraine. The reason may be deeper. Putin needs support at home and questioning a former Defense Minister adds to the credibility of Putin and his current defense minister. 

Kremlin officials, according to analysts, may see the long-term survival of the Russian Federation as questionable. On June 3, military.pravda.ru says that there is a need to redesign Russia’s military not only in response to NATO expansion but also due to an increasingly offensive-minded Western alliance. “The army that Russia sent to Ukraine in February 2022 had no experience in conducting large-scale offensive military operations. The Crimean experience of ‘polite people’ did not work, the ‘keys to Kharkov’ were not handed over to the army,” says Pravda. 

Russia is returning to an offensive-oriented military model that looks significantly different than it did in March 2022. Moscow carried out an initial mobilization that conscripted up to 400,000 contract soldiers. It built and maintained a layered defense, and according to Pravda, established interactions at the junction lines of units. The advanced units at the company level, it adds, are now saturated with drones and electronic warfare equipment. While some of this may be Russian propaganda, analysts say that Soviet army-armored vehicles and tanks have been reactivated to carry out offensive operations. Analysts point out that Russia is not equipped to win a war in Ukraine or Europe but that doesn’t mean it won’t stop attempting to retake positions lost in a Ukraine offensive this summer.

A recent commentary piece by Kremlin critic Anatoly Nesmiyam, blogging under the name “El Murid,” says that “the latest Russian moves are intended to improve the Russian military’s combat capabilities; however, he [Nesmiyan] argues that making these changes while fighting a war will be almost impossible and may compromise the Defense Ministry’s goals,” says Goble. Moscow’s dual goals of expanding the army while also reorganizing it, may make qualitative change impossible. Nesmiyam suggests another more provocative reason for the reorganization may be to protect Moscow itself. 

On June 2 Kasparov.ru reports that the Kremlin “already understands that it will be problematic for it to keep the entire country and is preparing for disintegration—or at least rapid regionalization and partial collapse along the periphery.” Russia may be preparing to sacrifice the periphery, if necessary, to save the capital-centric country. Those outside of Moscow may not be happy with the regime’s decision to leave them with fewer resources and on their own. 

While it remains a low likelihood scenario, that Putin is designing such a plan, speaks to concerns inside the Kremlin about the questionable future of the Russian Federation. Goble suggests Nesmiyam is overstating the case in the immediate future, but agrees that “the fact that it exists at all means that the likelihood the Kremlin really is planning a broad attack to the west, a possibility Moscow military analyst Konstantin Sivkov treats as a near certainty, is perhaps even greater… And that in turn means that what may appear to some as a minor bureaucratic rearrangement within the ranks of the Russian military may well be a harbinger of far larger and more significant developments.” The worst may still be ahead.

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

Photo: Pixabay

The most troubling aspect of the Biden Administration’s National Security Policy is the lack of either realism or urgency.  In historic terms, we are essentially living in conditions similar to those of the final few years leading up to the outbreak of the Second World War.

China has doubled its nuclear capabilities in the past two years. Its navy is larger than that of the United States. Russia has a larger and more modern nuclear arsenal that that of the U.S.

North Korea is rapidly moving towards making its nuclear weapons capable of reaching and devastating America’s.  Iran, with its bizarre and angry-at-the-world leadership, will soon be a nuclear power.

These are not separate threats. They are a singular “Axis of Evil” intent on global hegemony.  Russia has supplied nuclear fuel to help build China’s atomic arsenal. China provides financial assistance to Moscow’s invasion of Ukraine, and keeps North Korea financially afloat. Iran is supplying drone weaponry to Putin. 

Neither Russia nor China have been coy about their intentions.  Beijing has openly threatened the United States on several occasions, and boasts about its armed prowess.

A release from the Chinese Defence Ministry recently stated: “We have boosted military training and war preparedness across the board, firmly and flexibly carried out military struggles, and proactively opened up a new pattern. We have deepened the reform of national defense and the armed forces with great strides, resulting in the armed forces in a new system, a new structure, a new pattern and a new look, and adding up to a revolutionary reshaping on all fronts…We have innovatively strengthened the modernization of national defense and the armed forces to promote the high-quality development of the armed forces, improving military’s modernization level and actual combat capability to a new height.”

Putin continues to rattle his nuclear saber.   The Center for Arms Control and Nonproliferation reveals that “Russia now has the largest nuclear inventory in the world…The country has made significant progress toward fully modernizing its Soviet-era nuclear weapons and delivery systems…”

The recently released “Annual Threat Assessment Of The U.S. Intelligence Community”  released by the Director of National Intelligence warns that “During the coming year, the United States and its allies will confront a complex and pivotal international security environment…Strategic competition between the United States and its allies, China, and Russia over what kind of world will emerge makes the next few years critical to determining who and what will shape the narrative perhaps most immediately in the context of Russia’s actions in Ukraine, which threaten to escalate into a broader conflict between Russia and the West….Russia’s unprovoked full-scale invasion of Ukraine has highlighted that the era of nation-state competition and conflict has not been relegated to the past but instead has emerged as a defining characteristic of the current era… Russia’s military action against Ukraine demonstrates that it remains a revanchist power, intent on using whatever tools are needed to try to reestablish a perceived sphere of influence despite what its neighbors desire for themselves, and is willing to push back on Washington both locally and globally.

“China has the capability to directly attempt to alter the rules-based global order in every realm and across multiple regions, as a near-peer competitor that is increasingly pushing to change global norms and potentially threatening its neighbors.

“Besides these strategic competitors, local and regional powers are seeking to exert their influence, often at the cost of neighbors and the world order itself.

“Iran will remain a regional menace with broader malign influence activities, and North Korea will expand its WMD capabilities while being a disruptive player on the regional and world stages.

“Efforts by Russia, China, and other countries to promote authoritarianism and spread disinformation is helping fuel a larger competition between democratic and authoritarian forms of government. This competition exploits global information flows to gain influence and impacts nearly all countries, contributing to democratic backsliding, threats of political instability, and violent societal conflict through misinformation and disinformation.

“Regional and localized conflicts and instability will continue to demand U.S. attention as states and nonstate actors struggle to find their place in the evolving international order, attempt to navigate great power competition, and confront shared transnational challenges.

“Regional challengers, such as Iran and North Korea, will seek to disrupt their local security environment and garner more power for themselves, threatening U.S. allies in the process.”

Illustration: Chinese Defense ministry

The threat from North Korea is far larger than it appears.

Pyongyang doesn’t have an arsenal the size of Russia or China.  But Kim Jong Un has the ability to produce catastrophic, indeed nearly fatal harm on the American homeland. According to some estimates, up to 80% of the American population could be dead within eight months following an EMP attack.

It is now widely recognized that it doesn’t take an arsenal of thousands of nukes to wipe out a vast portion of the American population, a result of destroying almost all electrical and computer facilities.

An electromagnetic pulse (EMP) has the potential to disrupt, degrade, and damage technology and critical infrastructure systems.  Human-made or naturally occurring EMPs can affect large geographic areas, disrupting elements critical to the Nation’s security and economic prosperity. President Trump wanted to make the  Federal Government foster “sustainable, efficient, and cost-effective approaches “to improving the Nation’s resilience to the effects of EMPs. However, he left office before any significant work could be done.

The technology association IEEE notes that “One Atmospheric Nuclear Explosion Could Take Out the Power Grid.”

In September of 2017, North Korea detonated an H-Bomb that it plausibly describes as capable of “super-powerful EMP” attack and released a technical report “The EMP Might of Nuclear Weapons” accurately describing what Russia and China call a “Super-EMP” weapon.

After massive intelligence failures grossly underestimating North Korea’s long-range missile capabilities, number of nuclear weapons, warhead miniaturization, and proximity to an H-Bomb, the biggest North Korean threat to the U.S. remains unacknowledged—nuclear EMP attack.

Ambassador Henry F. Cooper, the former Director of the Strategic Defense Initiative testified before Congress in 2017 that “we’re living through the most dangerous period of my lifetime …the vulnerability of our national electric power grid is among the most important and we are collectively continuing to endure or to take ineffective countermeasures to deal with it.”

At the same hearing, former Speaker Newt Gingrich noted that “…all the drugs we rely on for a wide range of things require refrigeration. And the minute you start knocking out the system, there’s a cascade of  consequences…The grid is vulnerable at all three layers. And if somebodywere to methodically come in here, they would find, I think, there are as few as nine notable points you could knock out that would have a catastrophic effect because it would lead to a cascade of systems to shutting down. If you then looked at the effect, potentially, of either the series of local EMP attacks or a high-altitude EMP attack, you’re talking about a catastrophic event from which, conceivably, you couldn’t recover for years.”

American Military News reports that earlier this month, North Korea tested a new type of solid fuel ICBM that could deliver multiple nuclear warheads to the U.S. homeland.  “A powerful new missile, the ‘Hwasong-18’ intercontinental ballistic missile, which serves as a crucial part of the nation’s strategic military power, was tested,’ the state’s official Korean Central News Agency said.”

A RAND study written last month by Bruce W. Bennett notes that “Even if a North Korean ICBM appeared to be falling well short of U.S. territory, what would happen if it were carrying a nuclear warhead designed to execute an electromagnetic pulse attack on the western part of the United States? The EMP from a nuclear weapon could burn out parts of the U.S. electricity distribution system. Americans on the west coast might find themselves without electrical power for months to years.

The threat is about to become even more complicated.  Another rogue state, Iran, is on the verge of becoming a nuclear power. Like North Korea, it has strong ties to Russia and China, both of which are apparently not adverse to sharing atomic weapons technology. It is projected that it could pair a nuclear weapon with an ICBM capable of reaching the United States within the next two years.

Photo: North Korean Unha 3 rocket lifts off on December 12, 2012 (North Korea Tech / KCTV)

Across the nation, a disturbing trend that places political affiliation above the rule of law continues to grow.

The traditional belief that justice should be blind as well as diligently and equally applied has been replaced by a pattern of sublimating Constitutional and legal principles and enforcement to political goals.

It is not only a question of singular statutes.  The past several years has seen challenges to the actual structure of American government. 

During the Trump Administration, a judge presumed to usurp the prerogatives of the Presidency by overturning a travel ban that restricted entry from terror-prone countries, a judicial act of defiance to the Constitutional order that was eventually overturned by the Supreme Court. 

Similarly, In Wolf v. Cook County, the US Supreme Court granted a stay to the Department of Homeland Security from an order of the Seventh Circuit, which had prevented the US government from implementing a change in the “Public Charge” clause in US immigration law – that is, keeping out immigrants who may become a financial burden on the government. 

Many of the partisans who vehemently cheered on these acts of overreach are now advocating that a recent decision by a Texas judge regarding a particular medication be ignored by the Food and Drug Administration, an act which could spark a Constitutional crisis. This contradictory stance demonstrates how, rather than follow a consistent pattern of legal thought and practice, the whole concept of justice is sublimated to the political goals of the moment.

Disrespect for the rule of law has included threats of violence. At a rally in Washington DC, Senator Schumer made overtly threatening remarks addressed to two members of the US Supreme Court regarding their votes in certain regulation cases – “I want to tell you Gorsuch, I want to tell you Kavanaugh: You have released the whirlwind, and you will pay the price…You won’t know what hit you if you go forward with these awful decisions.” His comments earned Schumer a rare rebuke from Chief Justice Roberts, who issued this statement; “Justices know that criticism comes with the territory, but threatening statements of this sort from the highest levels of government are not only inappropriate, they are dangerous. All Members of the Court will continue to do their job, without fear or favor, from whatever quarter.”

Increasingly, ignorance of the Constitution itself is a characteristic of candidates for judicial positions proposed by Democrats. Recently, President Biden nominated Spokane County Superior Court Judge Charnelle Bjelkengren to serve as the U.S. district judge for the Eastern District of Washington. During the Senatorial screening process, Senator John Kennedy (R-LA) asked the candidate about various Constitutional articles. Bjelkegren was ignorant of them.

For the first time in U.S. history, there is serious debate on the basic, constitutional underpinnings of the nation.  In 2018,  some Californians began advocating a ballot initiative to repeal the section of their state laws that recognize the U.S. Constitution as the supreme law.  In an article in The Week, national correspondent Ryan Cooper wrote: “The American Constitution is an outdated, malfunctioning piece of junk — and it’s only getting worse.” Louis Seidman, in a New York Times op-ed, complained about “our insistence on obedience to the Constitution, with all its archaic, idiosyncratic and downright evil provisions… Our obsession with the Constitution has saddled us with a dysfunctional political system, kept us from debating the merits of divisive issues and inflamed our public discourse.” In 2012, U.S. Supreme Court Justice Ruth Bader Ginsberg stated during an interview on Egyptian television that she wouldn’t recommend the U.S. Constitution as a model. Another Justice, Elena Kagan, refused to acknowledge the inherent concept of inalienable rights during her 2010 confirmation hearing.

This disregard for basic Constitutional provisions and the placing of partisan interests above the rule of law is a major crisis affecting the nation.

Illustration: Pixabay

A letter was sent from Rep. Mike Gallagher, of the House Select Committee on the Chinese Communist Party, to Secretary of Defense Lloyd Austin on Wednesday evening seeking an answer. The simple question in it: Why is New York’s Alfred University receiving a $13.5 million grant to conduct hypersonic weapons research when they have close ties to China? “One university in particular – Alfred – was hosting a Confucius Institute and partnering with a Chinese university ‘actively engaged in defense research’ on behalf of the People’s Liberation Army (PLA),” Gallagher wrote. “To put it plainly, DOD is funding advanced, hypersonic weapons-related research at an American university that actively partners with a Chinese university that performs similar research for the PLA. We seek additional information regarding this alarming matter and the DOD’s efforts to safeguard sensitive U.S. military research.”  

Recently, Rep. Jim Banks sent the Secretary of Defense a letter asking another “simple” question… Why are colleges seeking waivers to grant Confucius Institutes allowed to do so when they are known avenues China uses for spying and still receiving federal funding from DOD to conduct military research. So far, American taxpayer dollars have provided over $17 million to fund advanced research at Alfred University although the Biden Administration is aware that the school actively partners with a Chinese research institution working closely with the Chinese military. 

Rep. Gallagher is calling for the US Government to put “hard power” in the path of China’s President Xi Jinping. Gallagher told Fox News Digital that “It is not a secret that the CCP uses Confucius Institutes to project ‘soft power,’ but it’s time to shed light on how the CCP also uses these institutes to build Chinese ‘hard power’ weapons that could be used against Americans in a future conflict.” The research grant will be in violation of the law as of October 1, 2023,” per Section 1062 of the 2021 National Defense Authorization Act (NDAA), which prohibits DOD from administering funds to “institution[s] of higher education that hosts a Confucius Institute’ after October 1, 2023.” The question remains as to why there is no immediate action by Alfred University now. 

Rep. Gallagher’s letter, which comes a month after Rep. Bank’s request, asks for “additional information regarding DOD’s efforts to protect sensitive national security and American taxpayer-funded research from theft or compromise,” given the university’s Confucius Institute in conjunction with its “research agreement with China University of Geosciences in Wuhan,” which currently maintains a research center whose research area is “closely related” to that of Alfred University’s. It appears that the Biden Administration is allowing American taxpayers to fund Chinese military research in areas that threaten US national security. Intelligence analysts in Washington are puzzled about why this has not been halted immediately and funding rescinded from these programs.  

This is not a new issue for the Biden Administration. The President’s own political appointee to head the CIA, Nick Burns, in a Congressional hearing on February 24, 2021, stated that American universities and colleges should “cut ties” to China’s Confucius Institutes after calling them propaganda tools. In the hearing he added: “I think what the Confucius Institutes do, and I’m no expert on them, is to promote a narrative of Xi Jinping’s China, which is designed to build sympathy for what is, in my view, a quite aggressive leadership, which is engaged in conduct and conducted an adversarial approach to relations with the United States… that particular dimension of foreign influence operations constitutes a genuine risk… my advice for any institutions in the United States, including academic institutions, is to be extraordinarily careful of what the motives are for a variety of institutions like that and to be very careful in engaging them.” Analysts are asking if anyone in the Biden White House was listening to its own appointee? The miscalculations and misinterpretation of Chinese of Chinese actions are emerging as a greater threat than in the past as agents of the CCP infiltrate more and more American institutions, draining our competitive advantage and increasing the threat to US national security. 

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

Illustration: Pixabay

Is Russian President Vladimir Putin facing a use it or lose it situation? Will the Russian leader perceive a critical need to employ a weapon of mass destruction to move his war in Ukraine into the win category for Moscow this summer? Are we entering a new nuclear era of uncertainty with an increasing likelihood of mistakes? These are a few of the daunting questions being bantered about by analysts in Washington this June. Next-generation sensors and machine-learning powered tools provide the United States with extensive and improved raw data collection once considered inaccessible. Although we employ the most advanced warning systems of a ballistic missile attack available, there are concerns about validation protocols, human mistakes, and more recently deep cyber intrusions. For the leadership in Washington, DC there is only about a two-minute window of opportunity to make a command decision on whether to respond by launching a retaliatory nuclear strike. There is less time from launch for Ukraine and other parts of Europe to decide on how to respond to a Russian nuclear escalation.

President Putin continues to threaten Ukraine with deploying tactical nuclear weapons. He is not alone in issuing such threats. North Korea’s Kim Jong-un has conducted a number of provocative ballistic missile tests. China is building its nuclear triad deterrent capability at a fast pace with its new submarine-launched missiles, and Iran is rebuilding its nuclear program. There is reason for concern in each case. In aggregate, it lends to the perception that the line between conventional and nuclear war is blurring, and the nuclear threat is re-emerging in the 21^st century. Russia’s war in Ukraine exacerbates the immediate nuclear threat to Europe while simultaneously lowering the threshold for use by Putin’s declaring a tactical nuclear weapon no different than the large conventional bombs in the West’s inventories. 

If a NATO nation is attacked, the United States under Article Five of the NATO Charter is required to come to the aid of that Member state. “We argue that this [Biden] administration should break from its predecessors and adopt a “decide-under-attack” posture. This action would shift the retaliation posture from a time-constrained decision in the fog of war to deliberate action based on evidence of an attack,”  according to Johnathan Falcone, Jonathan Rodriguez Cefalu and Maarten Bos, writing in War on the Rocks. What if there is cyber exploitation of critical hardware and software components by Russia and the West is provoked into a false response? It could provide Putin with the justification he needs, and improve his domestic support to launch an attack on Western Europe.

For deterrence to be effective in Europe, adversaries must believe that a Russian first strike would be detected, and retaliatory weapons would be employed. In the post-Cold War era, modernized command and control systems are more reliant on computers but still susceptible to cyber exploitation. Falcone says, “This is a significant risk when combined with an outdated retaliatory option, as it impacts incentives for preemptive or retaliatory nuclear launch decision-making.” The war in Ukraine is different from concerns during the Soviet era and attacks against the then-vulnerable, American land-based Minuteman missiles. 

Today, a Russian cyber-attack creating a scenario of a nuclear launch, spoofing a tactical or strategic missile attack, could create confusion, would be difficult to verify for the West, and add to the overall threat level to Europe. In a worst-case scenario, it might end in NATO’s decision to retaliate. Putin knows that the absence of real-world data means the West will rely on limited data sets from simulations and intelligence developed on his nuclear delivery capabilities. An increasing reliance on tools in a launch-under-attack option means greater uncertainty in model outputs. Inaccurate intelligence or bias in the machine-learning systems could lead NATO to misinterpret real events. 

In a decide-under-attack option, the US President along with NATO, will be able to reduce the time pressure by introducing a delayed response. It could help in the event of Russian fabrication of a false signal and expand the decision space to launch a retaliatory strike. If Putin deceives the West into believing there is an attack in progress, the world could face regional warfare across Europe that would likely draw the world into a new age of nuclear warfare. Is this scenario unlikely? For now, the answer is yes. If the spring offensive leaves Putin in a worse military situation later this year, the odds of war across Europe change. Like a cornered snake, Putin is capable of striking out at anyone in his line of sight. The war in Ukraine is nowhere close to over.

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

In April, we discussed the facial insufficiency of the Indictment brought against former President Donald Trump in Manhattan Supreme Court.    In particular, we noted that “(u)nder Section 200.50 of the New York State Criminal Procedure Law, ‘an indictment must contain…(a) statement in each count that the grand jury…accuses the defendant…of a designated offense,’ as well as ‘(a) plain and concise factual statement in each count which… asserts facts supporting every element of the offense charged and the defendant`s…commission thereof with sufficient precision to clearly apprise the defendant…of the conduct which is the subject of the accusation.'”  

Regarding this issue, we noted that each count of the Trump Indictment “contains the exact same phrase; ‘with intent to defraud and intent to commit another crime and aid and conceal the commission thereof’…(t)his language would appear to track the language of NY Penal Law Section 175.10, which states that ‘a person is guilty of falsifying business records in the first degree…when  his  intent  to defraud includes an intent to commit another crime or to aid or conceal the commission thereof.’”  

No where does the Indictment identify the “other crimes” that Donald Trump was allegedly attempting to conceal when he falsified his business records.  On this basis alone, we argued that the Indictment is insufficient, and must be dismissed, since Trump is not properly advised of which law he allegedly broke, and cannot adequately prepare a defense. 

This issue, however, is only the tip of the iceberg of a much broader basis for a potential dismissal of Trump’s Indictment.

Falsifying Business Records in the First Degree is a Class E felony, the lowest level of felony offense under New York State law. Meanwhile, Falsifying Business Records in the Second Degree is only a Class A misdemeanor.  The Second Degree charge only requires an “intent to defraud” when a person  “(m)akes or causes a false entry in the business records of an enterprise,”     while the First Degree requires the additional step of doing so with  “an intent to commit another crime or to aid or conceal the commission thereof.”  

This is a very important distinction between the felony charges brought against former President Trump, and the misdemeanor charges not brought.  Under New York’s Criminal Procedure Law Section 30.10, a prosecution for a Class E felony must be brought within five years after the commission of the crime.  A Class A misdemeanor must be brought within two years of the commission of the crime alleged. 

In May, we discussed the application of the Statute of Limitations to the felony charges brought against the former President. At that time, we stated that “(a) review of the indictment reveals that the criminal acts alleged occurred on a variety of dates between February 14, 2017 and December 5, 2017.  Yet, Donald Trump was not arraigned on these charges until April 4, 2023 – more than six years after the events happened.”  We also noted that there are several “tolls” or extensions of the five year time period for the prosecution of a criminal charge – one being  CPL Sec. 30.10(4), which states that “in calculating the time limitation applicable to commencement of a  criminal action, the following periods shall not be included: (a) Any period following the commission of the offense during  which (i)  the  defendant  was  continuously  outside  this  state or (ii) the whereabouts of the defendant were continuously unknown and  continuously unascertainable by the exercise of reasonable diligence.”  

Thus, we noted that “it is entirely possible that the time Donald Trump spent in the White House, serving his country as the President of the United States, could be used against him in New York State Supreme Court.”

We also discussed the tolling of the Statute of Limitations due to a series of Executive Orders signed by former New York Governor Andrew Cuomo, which halted the running of the time to bring any legal action in New York State from March 20, 2020 to November 3, 2020, a total of approximately 8 months, or 228 days.  Yet, as we also noted, this toll would not save all 34 counts of the Trump Indictment since at least the first 22 counts are beyond the time period affected by the toll.

But let us return to the underlying issue here – what are the “other crimes” that makes this a felony prosecution, instead of a time-barred misdemeanor?

Besides the Indictment, the Manhattan District Attorney’s Office also filed a Statement of Facts with the Manhattan Supreme Court. According to this document, “the Defendant (Donald Trump) orchestrated a scheme with others to influence the 2016 presidential election by identifying and purchasing negative information about him to suppress its publication and benefit the Defendant’s electoral prospects. In order to execute the unlawful scheme, the participants violated election laws and made and caused false entries in the business records of various entities in New York. The participants also took steps that mischaracterized, for tax purposes, the true nature of the payments made in furtherance of the scheme.”

In other words, the former President tried to influence a presidential election in which he was a candidate by suppressing negative information about himself.  But as stated by James Bovard in the New York Post, “(d)oes Manhattan prosecutor Alvin Bragg believe political campaigns are governed by the Boy Scout oath and every candidate must be honest, trustworthy, clean and maybe reverent, too?… Lyndon Johnson won in 1964 because he deceived Americans about the Gulf of Tonkin resolution and his plans to plunge into war in Vietnam. Richard Nixon won in 1972 in part because Americans had not heard his Oval Office tapes exposing the cover up of the Watergate break-in. President Barack Obama was re-elected in 2012 in part because Americans did not know about the vast illegal National Security Agency spying operation that Edward Snowden exposed the next year. Does anyone expect President Joe Biden to open federal files to expose his debacles during his re-election campaign?  ‘Suppressing negative information’ is standard operating procedure in Washington.”

Bovard’s point is well taken; but to be honest, it’s not the suppression of negative information that is the alleged crime – it’s the method used to cover up the payments.

According to the Statement of Facts, “at the Defendant’s request, a lawyer who then worked for the Trump Organization as Special Counsel to Defendant (“Lawyer A”), covertly paid $130,000 to an adult film actress shortly before the election to prevent her from publicizing a sexual encounter with the Defendant. Lawyer A made the $130,000 payment through a shell corporation he set up and funded at a bank in Manhattan. This payment was illegal, and Lawyer A has since pleaded guilty to making an illegal campaign contribution and served time in prison. Further, false entries were made in New York business records to effectuate this payment, separate and apart from the New York business records used to conceal the payment.”

“Lawyer A” is clearly former Trump attorney Michael Cohen, who, in August of 2018, “pleaded guilty to eight counts in federal court in New York…(t)hey include five counts of tax evasion, one count of falsifying submissions to a bank and two counts involving unlawful campaign contributions…(t)he counts related to campaign finance violations involved payments that were made to keep two women quiet during the (2016 Presidential) campaign…Cohen was ‘repaid at the direction of the candidate (Donald Trump)…with invoices for ‘services rendered.’   As described by Robert Khuzami, deputy U.S. attorney for the Southern District of New York at the time of Cohen’s guilty plea, those “invoices were a sham…merely reimbursement for illegal campaign contributions.” 

What is important to notice here; Cohen plead guilty to federal charges, relating to federal election law violations, which are alleged to have occurred in the course of a federal election.

Turing again to the Statement of Facts, more details emerge regarding the nature of the “illegal campaign contributions”; “After the (2016 Presidential) election, the Defendant (Donald Trump) reimbursed Lawyer A (Michael Cohen) for the illegal payment through a series of monthly checks, first from the Donald J. Trump Revocable Trust (the ‘Defendant’s Trust’)—a Trust created under the laws of New York which held the Trump Organization entity assets after the Defendant was elected President—and then from the Defendant’s bank account. Each check was processed by the Trump Organization, and each check was disguised as a payment for legal services rendered in a given month of 2017 pursuant to a retainer agreement. The payment records, kept and maintained by the Trump Organization, were false New York business records. In truth, there was no retainer agreement, and Lawyer A was not being paid for legal services rendered in 2017. The Defendant caused his entities’ business records to be falsified to disguise his and others’ criminal conduct.”

In other words, Trump is alleged to have reimbursed “Lawyer A” (Michael Cohen) for the “illegal campaign contributions” Cohen made (that is, the “hush money” payments), and then falsified his own business records to disguise these reimbursement payments as “payment for legal services rendered” by Cohen to Trump.

Let us suppose that categorizing Trump’s payments to Cohen as “reimbursement for legal services rendered” is a falsification of the business records of the Trump Organization.  That could fit the definition of Falsifying Business Records in the Second Degree – the Class A misdemeanor – “makes or causes a false entry in the business records of an enterprise.”  But we are still left with one crucial question – where is the “intent to commit another crime or to aid or conceal the commission thereof” that makes these acts a felony under Falsifying Business Records in the First Degree?

According to a Statement issued by Manhattan District Attorney Alvin Bragg right after Donald Trump’s arraignment, “The People of the State of New York allege that Donald J. Trump repeatedly and fraudulently falsified New York business records to conceal crimes that hid damaging information from the voting public during the 2016 presidential election… As the Statement of Facts describes, the trail of money and lies exposes a pattern that, the People allege, violates one of New York’s basic and fundamental business laws.” 

Putting this statement together with the Statement of Facts leads us to only one conclusion – the  “other crime” which elevates the charge against Trump from a misdemeanor to a felony, is a violation of federal campaign finance laws, for actions taken in the course of the 2016 Presidential election.

This leads us to another question – does the District Attorney of Manhattan, elected to serve one of the five boroughs of New York City, have the authority, the jurisdiction, to prosecute a violation of federal election law?  Even  if that underlying  federal crime serves only to support a New York State criminal charge being elevated from a misdemeanor to a felony?

Even CNN has its doubts about a federal charge serving as the basis for a state charge.   “Exactly what this underlying crime was is not specified in the indictment itself, but rather teased in an accompanying statement of facts and in prosecutors’ remarks…(t)hey describe an ‘unlawful’ scheme to influence the 2016 election by keeping damaging information about Trump from reaching the public. The district attorney’s theory, as well as the lack of transparency around how Bragg intends to lay it out, is raising concern about whether the case will stand up in court. Election law expert Rick Hasen told CNN it was “far from a slam dunk…(i)t raises some political questions whether this is the case to bring,’ said Hasen, a professor at UCLA School of Law.” Hasen also told CNN that he was “’skeptical’ that a federal campaign finance prosecution could be used to back charges in a state court.”

According to Ian Millhiser writing at Vox, “Bragg built his case on an exceedingly uncertain legal theory. Even if Trump did the things he’s accused of, it’s not clear Bragg can legally charge Trump for them,at least under the felony version of New York’s false records law.  As Mark Pomerantz, a former prosecutor in the Manhattan DA’s office who played a significant role in the Trump investigation prior to his resignation in 2022 wrote in a recent book, a key legal question that will determine whether Trump can be charged under the felony version of New York’s false records law has never been resolved by any appellate court in the state of New York. The felony statute requires Bragg to prove that Trump falsified records to cover up a crime. Bragg has evidence that Trump acted to cover up a federal crime, but it is not clear that Bragg is allowed to point to a federal crime in order to charge Trump under the New York state law. The answer to this ‘gnarly legal question,’ as Pomerantz put it, is simply unknown.”

Whether DA Bragg can prove the charges brought against former President Trump is another issue, for consideration on another day.  For now, the fundamental question presented here is whether a local prosecutor can use an alleged (and to date, unspecified)  violation of federal election law as the basis for an elevation of a state criminal charge from a misdemeanor (that would be time-barred from prosecution), into a felony. 

With that question in mind, let us give the last word to George Washington University law professor Jonathan Turley.  In a Fox News interview broadcast shortly after the indictment, Turley said that “[Bragg] is attempting to bootstrap [a] federal crime into a state case. And if that is the basis for the indictment, I think it’s rather outrageous…I think it’s illegally pathetic.”  

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

Illustration: Pixabay

President Biden missed an opportunity to personally shore up Washington’s diminishing influence on small but strategic governments in the Indo-Pacific. China’s Foreign Minister Wang Yi recently the Solomon Islands, Kiribati, Samoa, Fiji, Tonga, Vanuatu and Papua New Guinea.

Papua New Guinea’s government was prepared to honor the U.S., even declaring a public holiday for the expected Presidential visit. But the President, who had a lackluster appearance the G-7 meeting in Japan, decided to skip the event.

The Washington Post called Biden’s absence “an unforced error… by pulling out of two vital stops at the last minute, the president ended up sending exactly the opposite signal. This is a shortsighted blunder that Beijing will surely exploit when courting America’s allies and partners in Asia.

According to the United States Institute of  Peace, “Around the world, Beijing is investing heavily in diplomatic, security, cultural, and economic ties in a bid to increase its global influence, strengthen its ability to protect and advance its national interests… fracture the global consensus on key issues it views as unfavorable to its geopolitical ambitions. The Pacific Islands region—defined as the vast stretch of Pacific Ocean between Asian littoral waters in the west, Guam in the north and Hawaii in the northeast, and Australia and New Zealand in the south and southwest—has been no exception.”

It’s another misstep in relations in the crucial area, ignoring China’s startling advances.

John D. Kuhns, an entrepreneur who lives and works in Bougainville, stressed that China was using hard-pressure tactics on government officials the region to accept commercial developments that serve as a gateway to expanding Beijing’s influence.

According to  American Military News, “Daniel Suidani, an outspoken critic of the Solomon Islands’ closer ties with China, was ousted as premier of Malaita in early February after refusing ‘HUGE’ bribes from Chinese businesses who threatened to have him removed.”  Suidani’s ouster was directly orchestrated by China because he refused to yield to their wishes.

Some of the small island nations have resisted. A Foreign Policy study noted that “When China, a country of 1.4 billion people, threatened Palau, a Pacific island nation with a population of just 18,000, to switch its diplomatic ties from Taiwan to Beijing or face economic hardship in 2018, Palau did not budge. The island country remained steadfast even when China dispatched fighter jets across the Taiwan Strait after Palau’s president later visited the island. Its national philosophy can be summed up by the words of the editor of one of Palau’s two newspapers: ‘If we have the power to decide, let’s be the last man standing with Taiwan. [Other] countries will think we don’t just switch; we stay with our friends until the very end.’”

Washington is taking steps to regain some momentum. At a U.S.-Pacific Island Summit in September 2022, the Administration announced a slate of ambitious initiatives that may provide over $810 million in additional expanded area programs.

 to meet Pacific priorities.  The Biden-Harris Administration is following through on these commitments, including through opening new U.S. embassies in the region in record time and expanding our diplomatic and development engagement to unprecedented levels.  The United States is also working together with likeminded partners through the Partners in the Blue Pacific to collectively support Pacific priorities as outlined in the Pacific Islands Forum 2050 Strategy for the Blue Pacific Continent.

During his time in New Guinea, said he would work with Congress for over $7.2 billion in new funding and programs for the Pacific Islands region.  

In addition to financial matters, the Biden Administration’s reluctance to adequately fund the U.S. Navy in the face of Beijing’s massive naval buildup continues to be an an issue.

Illustration: Pixabay