Friday News Roundup — October 25, 2019
The Impeachment Noise Level; Is Presidential Immunity Absolute?; Russia’s Geopolitical Game; Next Steps on Afghanistan; Plus News You May Have Missed
Greetings from Washington, DC, where it’s been a week of highs and lows.
On Monday night, CSPC saluted two great leaders in technological innovation and national security with our Eisenhower Award at the 52nd CSPC annual awards dinner: Gwynne Shotwell, SpaceX President & COO, and Heather Wilson, former Secretary of the Air Force and the current president of the University of Texas at El Paso. You can view the award video saluting their leadership here.
Citywide, World Series fever is palpable, while the political drama continues. It did pause briefly, however, as lawmakers came to pay respects to the late Elijah Cummings, as he lay in state in the Capitol. It served as an opportunity to highlight the all-so-real impact he had and the friendships he made, even as partisanship continues to tear Congress apart. Still, it is a reminder that sometimes there can be something greater that unites us more than our squabbles divide us.
At the Center, and in this week’s roundup, we also welcome a new contributor to the roundup. Joining CSPC is our new Military Fellow, Ethan Brown. Ethan spent ten years with the U.S. Air Force supporting conventional and Special Operations mission sets, with five deployments for global response and humanitarian support missions overseas. We welcome his insights, perspective, and contributions to the Center’s work, and we hope that our readers will as well.
In this week’s roundup, Dan looks at this week’s tumultuous events surrounding the impeachment inquiry. Chris covers how President Trump’s lawyers’ expansive take on executive immunity. Ethan’s inaugural contribution addresses Russia’s growing influence in the Middle East and beyond. Joshua analyzes the uncertain future for Afghanistan following the sudden change in Syria policy. As always, we close with news you may have missed.
Pounding the Table
Dan Mahaffee
The famed poet Carl Sandburg once gave simple legal advice: “If the facts are against you, argue the law. If the law is against you, argue the facts. If the law and the facts are against you, pound the table and yell like hell.”
This week, the facts were against the White House, and, in some cases, the law stood against the administration as well — as Chris will describe in further detail. On Tuesday, interim U.S. Ambassador to Ukraine, William Taylor, testified before House investigators. In his prepared remarks, Taylor told the House Intel Committee, “by mid-July it was becoming clear to me that the meeting President Zelenskyy wanted was conditioned on the investigations of Burisma and alleged Ukranian interference in the 2016 elections. It was also clear that this condition was driven by the irregular policy channel I had come to understand was guided by Mr. Giuliani.”
Taylor went on to describe the explanation of U.S. Ambassador to the EU, Gordon Sonderland, as follows, “President Trump is a businessman. When a businessman is about to sign a check to someone who owes him something…the businessman asks that person to pay up before signing the check.”
Adding to the potential scope of the inquiry, Thursday’s late breaking news was that the administration had also halted trade cooperation with Ukraine at the same time military assistance was on hold.
On the political front, the facts were not much better either. There were some cracks in the GOP facade, with most attention being paid to Senate Republicans — especially Utah Senator Mitt Romney. For many in the GOP, their impeachment defense of the president has been complicated by his decisions on Syria, a still “under development” messaging strategy from the White House on impeachment, as well as his now reversed choice of the Trump Doral Resort as a hosting site for the next G-7 summit. Polling for the month of October shows an average split of 51% to 42% in favor of the impeachment inquiry alone. However, delving deeper into the Quinnipiac Poll data — where we can compare the results from about a month ago to this week — independent support for impeaching President Trump and removing him from office has ballooned from 34% to 49%.
In light of these facts, it should be no surprise that some GOP Members of Congress decided to bang on the table. A cohort of House Republicans did just that, as they forced their way into the Sensitive Compartmentalized Information Facility, or SCIF, where the House Intelligence Committee conducts its business, including some of the impeachment inquiry interviews. Some did so carrying their cell phones, violating one of the central tenets of SCIF security, as they are considered a sanctum sanctorum for the handling of sensitive information that our adversaries would love to acquire. Even some fellow Republicans, including Alabama Rep. Mike Rogers, Ranking Member of the House Homeland Security Committee, criticized this security breach.
For the GOP caucus, the maneuver was justified by complaints that the hearings were being held out of public view. This has served to conflate the investigatory portion of the impeachment inquiry with public House impeachment hearings and the open trial in the Senate. Consider the difference between a grand jury proceedings and trial proceedings an apt one. Furthermore, already on the committees of jurisdiction in the impeachment inquiry, there are 48 Republicans who have already access to the hearings, the evidence, and the witnesses. Even Fox News judicial analyst Andrew Napolitano pointed out to the viewers of Fox and Friends that the closed hearings were being conducted in accordance with House rules set out by the GOP majority in 2015 — not to mention that the initial Benghazi hearings were closed, and the special counsels investigating Presidents Nixon and Clinton did so privately.
On each side of the aisle, the quivers are full of tu quoque arrows. Facts, however, remain. Republicans may be pushing for a public hearing of the case against President Trump, but, even without one, the political winds have shifted against the president. Even when the President and his team members have tried to argue their position, some have said the quiet part, out loud. If more damaging facts come to light in the coming weeks, expect to hear a lot more banging on the table.
How Long is the Arm of the Law?
Chris Condon
This week, lawyers representing President Trump and lawyers representing the Manhattan District Attorney’s office squared off in the 2nd U.S. Circuit Court of Appeals. Arguing before a panel of three judges, each side argued the ability of the District Attorney to investigate the president’s business dealings in New York by subpoenaing his corporate and personal tax returns. While the DA’s office argues that the president is subject to a criminal investigation just like any other American suspected of a crime and that these financial records are instrumental in such an investigation, Mr. Trump’s legal team picked an interesting point of view to defend.
In essence, the president’s lawyers argue that since the president is the chief executive, he is not subject to any manner of criminal proceedings whatsoever. According to them, this includes investigation, charges, and prosecution; only impeachment by Congress is a legitimate vehicle to investigate a sitting president. Furthermore, after questioning by the judges of the 2nd Circuit, the president’s legal team argued that this immunity extends to any and every crime their client could possibly commit. Specifically, Judge Chin referenced President Trump’s now-famous quip that he “could stand in the middle of 5th Avenue and shoot somebody and [he] wouldn’t lose voters,” asking if he could also escape criminal investigation for such an act. “Yes,” the Trump team responded unequivocally.
The three-judge panel seemed skeptical of this line of argument, and suspected out loud that the case is destined for the Supreme Court. This week’s argument came on the heels of a district court decision earlier this month that categorically rejected the Trump team’s broad immunity argument. Judge Victor Marrero wrote on October 7th that an unlimited assertion of presidential authority would contradict the founders’ vision, and that “[The District] Court cannot endorse such a categorical and limitless assertion of presidential immunity from judicial process as being countenanced by the nation’s constitutional plan.” In essence, he likened the president’s argument to the famous Nixon quip that “when the president does it, that means that it is not illegal,” rejecting this sentiment in stating that no one in America is above the law.
Although it seems likely that the 2nd Circuit will agree with Judge Marrero’s assessment, it is all but certain that the case will be appealed even further to the Supreme Court of the United States. While we do not know how the Court will rule, there is relatively recent precedent regarding legal proceedings against the president while in office.
In Clinton v. Jones, the Court faced a question regarding the vulnerability of President Clinton to civil lawsuits. While Clinton was in office, an accuser came forward alleging that the president had made inappropriate sexual advances while Governor of Arkansas and she was a state employee. She was subsequently disciplined by her supervisor, which she attributed to her rejection of then-Governor Clinton’s advances. Ms. Jones, the employee, decided to sue the president for his conduct, alleging that the action was an abuse of power that caused her undue difficulty. President Clinton’s legal team took a similar position to that of President Trump now, that since Clinton was the chief executive, a lawsuit would hamper him in his ability to fulfill his official duties.
The Court was unanimous in their dismissal of the president’s claim. While they acknowledged that the president was immune from lawsuits regarding his official activities as president, any unofficial actions taken by the president are subject to legal action just as much as any other citizen. While Clinton v. Jones dealt with a civil lawsuit, it is likely that the Court could apply the same reasoning to a criminal investigation at the very least. It has long been the position of the U.S. Department of Justice that a sitting president cannot be charged with a crime or indicted in any way, but the Department has said little on the subject of criminal investigations. In fact, in a brief filed with the 2nd Circuit, the Department of Justice seemed to acknowledge the necessity of allowing such an investigation. Impeachment and removal, however, would be necessary before any criminal penalty whatsoever could be applied to President Trump.
The balance of powers within the American system is extremely delicate. Over time, the executive branch has gradually shifted this balance, asserting control over most facets of governance. The president, who sits at the head of this branch, now acts as the arbiter of all policy rather than the executive’s chief steward. This week, another attempt was made to expand this already titanic power, asserting that the president is completely invulnerable to any and all legal action while in office. In rebuking this position, federal courts have erected a roadblock in front of the executive steamroller. Whether the Supreme Court will lend its hand to its construction has yet to be seen. Depending on the outcome of the ongoing impeachment inquiry, it may become increasingly important in the coming years.
Turkey-Russia Deal Alters the Power Broker Dynamic
Ethan Brown
In the latest and perhaps most shocking development in the Syria-Turkey-Kurd crisis, Russian Police forces moved into and began patrolling towns including Manbij and Kobane (also spelled Kobani). These patrols are ostensibly intended to ensure the departure of Kurdish forces in the wake of the hastily agreed upon cease fire. Both these towns were only recently-controlled by Kurdish and U.S. Special Forces. This is juxtaposed with the filmed withdrawal of American Special Forces units; units that were pelted with rotten fruit by angered Syrian Kurds. Where those forces with end up remains unclear. In Baghdad, the prime minister publicly denounced plans to reposition U.S. forces to Iraq — ostensibly to protect oilfields in Eastern Syria and sustain the counter-ISIS campaign.
Beyond the tactical and operational ramifications of this development, this incident further signifies an awkward exchanging of the torch in moderating Middle East turmoil amongst the existing global powers. Based on these recent developments, and taking a broader look at the region, it is worth asking: who is genuinely engaged in the idea of becoming a power broker in the Middle East? Vladimir Putin is clearly widening his grasp beyond the puppet strings to include the curtains, the stage, and the lights.
Russia’s ascendancy in the region — once considered an unlikely development if not impossibility — seems all the more likely, if not certain, now. With the United States appearing to refocus its defined interests away from intervention/interference in the region, and Russia’s growing efforts to intercede in the region’s politics, Moscow appears to be gaining an upper hand, being seen as a reliable broker. The lack of clarity and strategic focus regarding western positioning in the region against growing Russian-influenced triumvirate of Iran, Syria and now Turkey only further facilitates the shift in the winds of regional power brokerage.
There is a growing body of evidence that Russia appears to be deliberately inserting itself into locales where it believes it can leverage American weakness, while openly parading an alternative model (or lack thereof). This is proving attractive to states of an authoritarian persuasion, or at least those questioning America’s commitment to the region. These presence patrols signal the further strengthening of the Russia-backed land bridge between its proxy states in Syria and Iran — a development that portends poorly for the United States.
This novel approach to power dynamics could be appropriately be coined as counter-globalization, but simply put, shows a state hell-bent on undermining the ideals of liberal order, free trade, and collectively agreed-upon standards of international governance and civil order. The resurgent Russia offers not an alternative model so much as an alternative way of doing business — you may not support Moscow, but at least you know that they operate according to the most central of nation-state rules: self-interest. Relations with Russia may be transactional, but at least, in theory, you know what you’re getting, they may argue.
For his part, Putin appears to have embarked on a roadshow or victory tour in recent days. Two Tu-160 supersonic bombers arrived in South Africa as the Russian president hosted African leaders in Sochi. The UAE recently rolled out the red carpet for Putin, including an impressive air display. This is to say nothing of the pending sale of S-400s to Turkey, the continued support and survival of the Assad regime, and now playing the role of powerbroker with the Kurds.
This posturing also offers a novel method of continuing “great power competition” without a head-to-head confrontation. Russia is able to secure influence, undermine American and Western strengths without needing to field and test its military capabilities against these forces. Lacking a true opportunity short of engaged conflict with a near peer state in which to validate its rapidly improving defensive weapons capability, the Russian Federation appears candidly content to seek out proxy domains in which to flood the field with its increasingly lethal integrated and strategic defense systems.
It is of course, unclear whether Russia would be able to sustain such an operation even if it wished to do so. Despite the rhetoric to the contrary — common military bluster from Moscow — and the deployment of overt and covert forces to neighboring Georgia and Ukraine, Russia lacks the capability to logistically sustain a long-term commitment of troops outside of its own borders.
That said, this deployment of Russian police and military forces outside of their legitimate borders — brokered between Moscow and Ankara but executed in the north-central demesne of Syria — suggests that the modernization efforts of the Russian military have achieved a modicum of success and dramatically alters the notion that the west possesses a monopoly on influencing dynamics in the region.
What does a Middle East power structure look like in which Russia is the majority shareholder? On one hand, the United States remains ideologically entrenched with Israel, as echoed by the Administration in repeated public announcements, and economically married to its oil-producing interests. Thus, it is impossible to envision a region absent some influence by the west. However, that image is tarnished with the scene of food thrown at U.S. armored trucks as they make their exodus to part not yet truly known.
On the other hand, the creeping shadow in the north: an expanding land-bridge from one Moscow proxy to another, representing a 21st century manifestation of the Soviet eastern bloc. The world order is simply waiting to see if this situation evolves into a new episode of the east versus the west, and it all could very well stem from this “Ankara Pact” of recent days. Unashamedly, Russia and its Middle Eastern bloc states are collectively working — or simply unrestricting the involved parent state — to shift the weight of geopolitical influence.
These opinions are of the author and do not reflect the views, position, or policy of the U.S. Air Force or Department of Defense.
The Uncertain Future of Afghanistan, Continued…
Joshua Huminski
While most attention was, understandably, focused on Syria and President Trump’s decision to withdraw forces from the border with Turkey, Afghanistan remained in the news, and continued to illustrate the uncertainty over the conflict’s future. The immediate challenge is in balancing a White House that is keen to end “endless wars” and the need to maintain counterterrorist operations, amidst a conflict that has not actually ended. Indeed, a Taliban rocket attack on a military base in Helmand, Afghanistan wounded five Marines on Wednesday.
Secretary of Defense Esper & Troop Numbers
This week Secretary of Defense Mark Esper traveled to Afghanistan. For their part, Speaker of the House Nancy Pelosi and other lawmakers traveled to Afghanistan as well, briefly meeting with Secretary Esper, following their trip to Jordan. During his visit, Secretary Esper said that the United States “will continue to pursue an aggressive military campaign against the Taliban and terrorist groups that continue to conduct violence against the people of Afghanistan.”
Secretary Esper’s unannounced visit, the first since he became Secretary, preceded reports that Washington was quietly withdrawing forces from Afghanistan despite the lack of a peace accord with the Taliban.
General Austin S. Miller, the United States Forces-Afghanistan and Operation Resolute Support commander, said that American forces dropped by 2,000 over the last 12 months to somewhere between 12,000 and 13,000. While not a formal withdrawal order, the numbers are declining by not replacing troops cycling out of Afghanistan.
The government of Afghanistan, largely sidelined in the peace negotiations with the Taliban, reportedly signed off on the reductions, but officials in Kabul did not offer any additional comment. The reduction of forces by General Miller, in consultation with Ashraf Ghani, the President of Afghanistan, gives the commander on-the-ground (Miller), greater control over the movement of personnel, movement that is not subject (at the moment) to the peace negotiations, the future of which is uncertain.
The presence of American troops in Afghanistan and their eventual withdrawal was a key negotiating point between the Taliban and the United States, and a key source of leverage. For his part, General Miller set out a target of 8,600 troops as a desired level and, simultaneously, the minimum number to support counterterrorist operations and the training of the Afghan National Security Forces.
Reports also suggest that the Department of Defense is preparing plans for an “abrupt withdrawal” of U.S. forces from Afghanistan if, as in the case of Syria, the President orders such a move. The Pentagon calls the move “prudent planning” and Lt. Col. Thomas Campbell a spokesperson said “The Defense Department does not have orders to draw down troops in Afghanistan and our mission has not changed.”
Taliban Discussions
In September, after nine rounds of discussions between the Taliban and the United States, it was believed that an agreement had been reached “in principle” that would have led to the withdrawal of America’s (at the time) 14,000 troops and guarantees from the Taliban that the country would not become a haven for terrorism in the future. In a surprise move, the President announced that a planned Camp David meeting was cancelled and the negotiations suspended.
Negotiations aimed at a peace agreement are not entirely stalled, however. Earlier in October Zalmay Khalilzad met representatives of the Taliban in Islamabad, Pakistan, the first such encounter since President Trump suspended discussions with the Taliban.
The early-October informal discussions in Pakistan did not yield any concrete results beyond the fact that peace negotiations could resume in the future. It is also unclear whether the earlier agreement will serve as the foundation for subsequent negotiations or, alternatively, future discussions will focus on implementation of what was already, largely, agreed upon.
For its part, the Taliban faces an equally difficult position with a diverse movement necessitating internal coherence. Arguably, the Taliban is at its strongest position militarily since 2001, despite a sustained military campaign. The Taliban has brutally suppressed any internal dissent, especially those rejecting Mullah Mansour’s succession to Mullah Omar after Omar’s death and those who flirted with joining the now rising Islamic State-Khorasan (ISK).
Now led by Haibatullah Akhundzada, the Taliban is by no means a monolithic entity and tactical discipline is not an indicator of strategic stability. While it has been consistent on its messaging towards the peace discussions, there is no guarantee (obviously) that the Taliban will abide by anything signed in the end. It is not beyond the realm of possibility that that the Taliban, knowing the President’s preoccupation with withdrawing, will simply make the right noises, say the right things, say an agreement, and carry out whatever policy it wants once American forces have left.
Further, the absence of the Government of the Islamic Republic of Afghanistan participating in a meaningful fashion in the peace discussions, further erodes its legitimacy in the eyes of the Taliban, not that there was much legitimacy with which to begin.
The Afghanistan Balancing Act
General Miller, for his part, is aiming to maintain pressure on the Taliban to drive them to a peace accord at a time when the White House and President appears keen to cut the rope entirely, withdraw American forces and end the “endless war”. The President’s fixation on ending the conflict is undermining the negotiating position of his own diplomats (see earlier declarations at pulling out 7,000 troops in December) and further complicating relations with Kabul.
Further reductions in American troop numbers will also concomitantly result in an increase on the NATO-partners to pick up any slack. The 8,500-troop NATO force may not be inclined to pick up that slack, especially if it questions President Trump’s commitment to Afghanistan (or NATO, for that matter).
For its part, NATO would not speculate on future troop reductions or the path forward on Afghanistan. NATO Secretary General, Jens Stoltenberg, said, “We have adjusted that many times, and we will always assess exactly the way and the composition of our forces in Afghanistan.”
The President’s mercurial approach to policymaking is complicating both national security and diplomatic efforts in Afghanistan, a situation already complicated by an unclear mission, competing national and international priorities, and multiple insurgencies. Where Washington goes from here is as unclear as ever, this after 17 years in conflict and American servicemembers still in harm’s way.
News You May Have Missed
President Trump Pressures Fed, Applauds House GOP
President Trump commented on two major news events this week, each comment with its own implications. First, President Trump tweeted yet another attack on the Federal Reserve, pressuring its Board of Governors to cut interest rates even below their current level. The Fed has cut rates in their last two meetings, and cutting them further would threaten its ability to combat the next recession. President Trump, who is planning to run on a strong economy, has an interest in low interest rates to pump up the economy as much as possible. President Trump’s second comment regarded this week’s storming of a classified office space dedicated to the impeachment inquiry by multiple GOP representatives. President Trump thanked these representatives for their actions against what he has referred to as a “lynching.”
Chinese Nationals Found Dead in Trailer
A refrigerated trailer was found on Wednesday containing the bodies of 39 Chinese nationals in the town of Essex outside London. A man from Northern Ireland was arrested by police in connection with the deaths, but officials have yet to release details about the investigation. Police say that identification of the bodies may take an extended period, and that they do not know how the victims got into the trailer. Some suspect that the Chinese nationals were attempting to enter the United Kingdom illegally and died accidentally. Belgian officials are also investigating the incident, as the trailer apparently passed through the port of Zeebrugge before passing through to England.
California Blackouts Threaten Business
During utility company PG&E’s last planned power outage earlier this month, it is estimated that california businesses lost a total of $2.5 billion between commercial and industrial losses. Power companies in The Golden State have seen fit in recent months to shut off power to millions of customers to protect against wildfires, one of which was caused by downed power lines in the past. That power line belonged to the aforementioned PG&E, which is facing bankruptcy following massive lawsuits. It is likely that that California’s power companies are exercising extra caution with this example in their faces. With mounting economic losses, it is unclear how long Californians will put up with the sorry state of their electrical grid.
The views of authors are their own, and not that of CSPC.