Nuclear treaty talks?; Ambiguity in an important law

A NYT article not paywalled (paywalled link) discusses an offer by China to start talks about a treaty among nuclear nations to formally adopt a no first strike policy for nuclear weapons:

Since China’s first nuclear weapons test, in 1964, the country has pledged loudly to never go first in a nuclear conflict — no matter what. That stance, coupled with a stated strategy of “minimum” deterrence, didn’t demand the level of American fear, loathing and attention that the Russian threat did.

The Pentagon says Beijing is on track to double the number of its nuclear warheads by the decade’s end, to 1,000 from 500 — a development that senior U.S. officials have publicly called “unprecedented” and “breathtaking.” China has drastically expanded its nuclear testing facility and continued work on three new missile fields in the country’s north, where more than 300 intercontinental ballistic missile silos have recently been constructed.

In truth, no one knows what China is planning. President Xi Jinping’s government, as with much of its domestic policy, releases vanishingly little information about its nuclear intentions, strategies or goals, and it has been equally unwilling to engage on arms control.

That is, until now.

In February, in a rare offer for nuclear diplomacy, China openly invited the United States and other nuclear powers to negotiate a treaty in which all sides would pledge never to use nuclear weapons first against one another. “The policy is highly stable, consistent and predictable,” said Sun Xiaobo, director general of the Chinese foreign ministry’s Department of Arms Control, in Geneva on Feb. 26. “It is, in itself, an important contribution to the international disarmament process.”

The invitation came as a surprise. While Beijing has long claimed moral superiority over other nuclear powers on this issue — China and India are the only nuclear-armed nations to declare a no-first-use policy — opening the possibility for talks in such a public way is something China hasn’t done in years.   

[President Biden] supported a no-first-use policy as vice president amid deliberations inside the Obama administration, and as a presidential candidate on the campaign trail he said the “sole purpose” of the U.S. nuclear arsenal should be aimed at deterring or retaliating against an adversary’s nuclear attack. But when it came time for his own administration to adopt a declaratory nuclear policy, he decided not to break with America’s longstanding nuclear dogma and retained the first-use option.

In my opinion, the US must at least accept the invitation to talk and start to talk. Talking about an existential threat with parties capable of starting nuclear war is far better than staring at each other through distrusting eyes.

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Here is the text of a part of 18 USC §1512(c) that the USSC has accepted to hear a dispute about:

(c) Whoever corruptly—

(1) alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object’s integrity or availability for use in an official proceeding; or

(2) otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so,

shall be fined under this title or imprisoned not more than 20 years, or both.

The fight is over the meaning of the word otherwise. The USSC will decide what otherwise means and how or if it connects (1) with (2). 

The stakes are very high. First, depending many the traitors convicted in Trump's 1/6 coup attempt could wind up having their convictions overturned. Second, a basis on which Trump himself can be prosecuted might vanish. Two two four felony charges Trump faces are based on this obstruction statute in relation to him trying to overturn the 2020 election. He could move to have those two charges dismissed if the Supreme Court rules for the 1/6 traitors in this case and get a great opportunity to exploit his self-proclaimed victimhood.

The HuffPo writes:

At issue is a law that makes it a felony if someone “corruptly … obstructs, influences, or impedes any official proceeding, or attempts to do so.” This law — known as 18 U.S.C. 1512(c) — was enacted as part of the accounting reform law passed in 2002, in the wake of the Enron and Arthur Andersen scandals. Federal prosecutors have used it to charge 330 people who were involved in the Jan. 6 attack on the Capitol, including Fischer — and former President Donald Trump.

Fischer argues in his appeal that the provision was not intended to be used in this way. Instead, he claims, a full reading of the law’s text shows that it was only meant to apply to the corrupt obstruction or impediment of documents in an official proceeding.

Fourteen district court judges have upheld charges for obstructing an official proceeding in Jan. 6 insurrection-related cases, on the understanding that “otherwise” means “in a different manner.” This would mean that the language of the first subsection related to the destruction of documents holds no bearing on the second subsection.

But in an appeal to dismiss the same charge when it was brought against Jan. 6 defendant Garret Miller, Judge Carl J. Nichols of the U.S. District Court for the District of Columbia reached a different conclusion.

In his March 2022 decision, Nichols wrote that the word “otherwise” imposes a limit on the second subsection and “requires that the defendant have taken some action with respect to a document, record, or other object in order to corruptly obstruct, impede or influence an official proceeding.”

Since Miller did not attempt to obstruct an official proceeding related to a document, Nichols wrote, that charge against him was dismissed.

Nichols referred to his decision in Miller’s case to similarly dismiss the charge against Fischer.  

On appeal, a majority from a panel of the U.S. Court of Appeals for the District of Columbia Circuit disagreed. That ruling determined that the word “otherwise” should instead be defined by the “the commonplace, dictionary meaning” as “in a different manner” and, therefore, the “obstruction” prohibited by law does not refer solely to document-related crimes.

If the six radical authoritarian Republicans in the USSC want to protect Trump, this case is about as good as it can get. Two felony charges vanish and the sanctimonious liar-traitor Trump gets to play the martyred victim card with a vengeance. 

And this is happening in 2024. That is is a major part of why Merrick Garland looked to me to be too feeble and timid to do his job by May of 2021. All of this should have been resolved by at least a year ago. Now it is too late. Justice delayed could easily turn out to be justice denied and democracy killed. That is how high the stakes are for the entire, crumbling structure of the American rule of law. Biden failed us by (i) putting an incompetent in charge of the DoJ, and (ii) not firing him when it was obvious that Garland was not up to the job. Now it is just too late. We horribly messed our own bed and we get to sleep in it.