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Justice is served



Mario Apuzzo wrote on his blog

“Justice and the American People Not Served by the Hollister v. Soetoro Decision”

I think the people were well served by the dismissal of this crank lawsuit. I replied:

I appreciate Mr. Apuzzo’s comments on what the Hollister decision is, and what it is not. No court has said that Barack Obama is or is not constitutionally eligible to be president.

However, I think that the courts have said something through all of these dismissals that is being lost. What they are saying at the local, state and federal level is:

“You should not be bringing these lawsuits.”

There was a time for lawsuits. Any delegate to the Democratic Convention could have sued Nancy Pelosi over her certifying the eligibility of Barack Obama as the candidate of the party, which she did certify on documents provided to the states. Such a delegate would have had standing, and a legitimate cause of action. But no such suit was filed.

Then there was an election. Those who doubted Barack Obama’s eligibility brought their case to the voters. An Ohio State University poll showed that 59% of voters were aware of the Obama eligibility question immediately following the election. The voters (and presumably the McCain campaign too) were not convinced by the merits of the evidence.

The people petitioned Congress to investigate the eligibility question before certifying the election. Just one Senator and one House member was all it took. According to some sources over 200,000 people signed a petition to Congress. Congress was unimpressed with the merits of the evidence.

With all the legitimate and legally proper avenues exhausted lawsuit after lawsuit are being filed and all of these are (according to the courts) not legitimate and not proper.

The problem is not with the courts. The Democratic Party, the voters and the Congress did all the investigating they thought warranted by the evidence and judged it wanting.

Obama opponents did not apply to the courts when they had the chance. They were unsuccessful in convincing the voters. They were unsuccessful in convincing Congress. In a constitutional republic like ours, that means you lost fair and square.

The courts are just following the law and the precedents. They are saying that you shouldn’t be bringing all these lawsuits and I for one agree with them.

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59 Responses to Justice is served

  1. avatar
    Bob March 9, 2009 at 2:18 pm #

    Apuzzo said: “The court’s comments can only serve to have a chilling effect on plaintiffs who may want to pursue what they in good faith believe to be constitutional challenges to Obama’s eligibility to be President.”

    Of course the court is trying to deter further lawsuits, as standing isn’t afforded to those with a good-faith belief. If that was the basis, anybody could sue anybody.

    Apuzzo said: “If the court does not want any such further actions, then it could have decide the merits of the case”

    No it could not have. The plaintiff (excuse me, “interpleader”) failed to state a claim upon which relief could be granted, and the court does not have the authority to overlook that requirement.

    Apuzzo said: “Additionally, threatening sanctions against the local attorney will also make it hard for concerned citizens to find lawyers who will take up their cause in the District Court for the District of Columbia.

    Talk about stating the obvious: That is the point of sanctions; to deter frivolous lawsuits.

  2. avatar
    Sally Hill March 9, 2009 at 2:46 pm #

    What date do you think Donofrio filed his on?

  3. avatar
    Doug Mataconis March 9, 2009 at 3:09 pm #

    It looks like he deleted your comment.

    Also, just a thought — can’t any of these Obama birthers create a decent-looking blog ?

    I’m serious. Taitz’s is a nightmare for the eyes, and the rest are riddled with grammatical and spelling errors.

  4. avatar
    richCares March 9, 2009 at 3:11 pm #

    perhaps Apuzzo’s compliants are based on he got a glimpse of the future concerning his case. He must be aware that he will lose, so why is he doing it?

  5. avatar
    Expelliarmus March 9, 2009 at 3:42 pm #

    I think the grammatical and spelling errors are a reflection of the overall level of intellect and critical thinking skills of the people creating those blogs.

  6. avatar
    mimi March 9, 2009 at 3:50 pm #

    Doc, did Puzzo delete your comment, or is the blog moderated and it didn’t get posted yet? Was it posted?

  7. avatar
    Dr. Conspiracy March 9, 2009 at 6:18 pm #

    Apuzzo’s blog requires approval of all articles before they appear. Perhaps he hasn’t gotten around to it.

    Frankly, if I were a lawyer, I’d moderate comments too.

  8. avatar
    Bob March 9, 2009 at 6:21 pm #

    Now I’m curious: Why “if” you were a lawyer? (What is it about being a lawyer that makes moderation necessary?)

  9. avatar
    Dr. Conspiracy March 9, 2009 at 6:22 pm #

    His blog is moderated. I never saw it approved, but then I haven’t been back since it was submitted. I think sometimes he waits to approve a comment until he has his rebuttal ready, so the comment never stands on its own.

  10. avatar
    Dr. Conspiracy March 9, 2009 at 6:39 pm #

    I think a lawyer must act in the best interests of his client. If I came up with something that wrecked Mr. Kerchner’s case, I would think that Mr. Apuzzo would be bound not to publish it. And frankly, what I wrote over there is not in Mr. Kerchner’s best interest. I have no objection to Mr. Apuzzo not publishing my comment; it’s his blog. I bet I get 10 times more traffic over here 😉

    Since I’m not invested in how things come out, I can let both sides do their best.

  11. avatar
    Bob March 9, 2009 at 6:45 pm #

    Lawyers blogging is a good thing; lawyers blogging about their own cases is dumb, dumb, dumb.

  12. avatar
    Bob March 9, 2009 at 8:39 pm #

    Regarding your Stream of Consciousness entry:

    This other commenter is suggesting (on Apuzzo’s blog) that both Obama and McCain each knew the other was constitutionally ineligible, and then entered into some sort of MAD agreement not to raise the issue.

    And then hoped that no one else in the world might notice these purported ineligibilities.

    Especially no one named Hillary Clinton.


  13. avatar
    Mario Apuzzo March 10, 2009 at 12:57 am #

    To Bob on dumb dumb dumb:

    I guess what you are saying is that by me blogging about the Obama case I might say something which will prove that Obama was born in Hawaii and that he is a “natural born Citizen.” Now that is dubm dumb dumb

  14. avatar
    Dr. Conspiracy March 10, 2009 at 6:54 am #

    Bob, it depends on what the purpose of the case is. If the purpose of the case is to create the maximum negative publicity for President Obama, that is, to engage in a political smear campaign attempting to gain credibility under the patina of a lawsuit (“harassment” as Judge Robertson called it) then, blogging about the case makes perfect sense and is a necessary part of the strategy.

  15. avatar
    Dr. Conspiracy March 10, 2009 at 6:57 am #

    Many on the nObama side have been led so far away from rational thought, that they seem to be willing to believe anything now (e.g. that Obama gave top secret helicopter blueprints to Iran). [Some documentation was disclosed by a careless defense contractor months before Obama was elected.]

    I think this how Berg/McRae were conned by “Kweli Shuhubia” and Mr. Hollander was conned by the guy who provided that fake McCain birth certificate.

  16. avatar
    Bob March 10, 2009 at 10:24 am #

    Even if it is a nuisance lawsuit, blogging about it is still dumb. Like you said earlier, there’s still the duty to the client. It also invites opposing counsel to poke around. And it’ll help the judge once sanction time comes around.

  17. avatar
    Sally Hill March 10, 2009 at 11:27 am #

    It’s weird how it works both ways….

    You want to contend that the American people vetted and certified the President eligible by voting for him, but then the courts say the American people do not have standing to vet the candidates or the President – either before or after the election.

    That’s just wrong on so many levels.

  18. avatar
    nbc March 10, 2009 at 11:28 am #

    You want to contend that the American people vetted and certified the President eligible by voting for him, but then the courts say the American people do not have standing to vet the candidates or the President – either before or after the election.

    That’s just plain wrong. They do not have standing to sue the secretaries of State, but that’s hardly lacking standing. It’s called ‘vote’…

  19. avatar
    nbc March 10, 2009 at 11:37 am #

    Apuzzo need not make any admissions that Obama is born in Hawaii, the certification of live birth speaks for itself, as do the birth announcements.
    Simple really.
    And of course Wong Kim Ark speaks even clearer.

  20. avatar
    Dr. Conspiracy March 10, 2009 at 12:17 pm #

    This is a Republic, not a Democracy. We do things through our elected officials. These lawsuits are trying to say that every individual American has the personal right to sue the president and investigate his credentials individually. That’s just wrong on so many levels.

  21. avatar
    Dr. Conspiracy March 10, 2009 at 12:24 pm #

    I spent three hours last night reading obscure textbooks, popular guides, constitution commentary, collections of state constitutions and charters and debates held at the state level on ratification of the Constitution from the 17th and 18th centuries. I did not find one hint that “natural born citizen” meant anything more than “citizen at birth”, and further the idea of “citizen at birth” was expansive, including both those born in the territory, and those born of citizens anywhere.

  22. avatar
    Heavy March 10, 2009 at 1:13 pm #

    Right on, Sally. This ILLEGAL candidate should not have been on the ballot.

    If the people were being served by their elected officials, he would have been fully vetted and found to be unfit BEFORE the election.

    Do not fret. Justice comes in many forms. If not through the courts, then by other means.

  23. avatar
    Dr. Conspiracy March 10, 2009 at 1:25 pm #

    Saw this comment at Apuzzo’s:

    The Kerchner v Obama case is seeking an answer to the question once and for all as to what was the intended meaning of the Article II “Natural Born Citizen” clause and legal term of art (introduced by the writings of Vattel) which was placed into the Constitution by John Jay, a man of French Huguenot heritage and fluent in French and who was the 1st Chief Justice of our Supreme Court, when the case gets before SCOTUS eventually, for the sake of our Constitutional Republic system of government, with its independent Judiciary as the ultimate guardian of our Constitution, as described by Vattel, in Book 1 of Vattel’s Law of Nations.

    M Publius Goat

    John Jay was not a delegate to the Constitutional Convention. He was a bit unpopular at home, and lost the election.

  24. avatar
    Bob March 10, 2009 at 1:26 pm #

    Justice comes in many forms. If not through the courts, then by other means.

    Care to elaborate?

  25. avatar
    Dr. Conspiracy March 10, 2009 at 2:13 pm #

    Reading some of Mr. Apuzzo’s latest comments on his blog, I think I see where he’s going.

    Knowing that the “born in Hawaii” is doomed to fail, he has cast his lot with the NBC deniers. Since US v. Wong Kim Ark (and many other cases) say that the concept of citizen is founded on common law (with Natural Law cited by the losers), and since British Common Law clearly makes Natural Born Subjects of anyone born in the realm, Apuzzo is creating a new common law out of thin air. Actually, what he is trying to do is to take de Vattel’s “natural law” and rename it “common law” and claim somehow that it is the the essence of American common law.

    Of course this silly. One has but to read Supreme Court decisions in the 19th century to know exactly what kind of common law Americans recognize.

    But that is beside the point. Apuzzo is taking the role of propagandist in this case, not that of litigator. This is an appropriate role, since the case will never see the inside of a court room unless it be to answer a show cause why the court should not impose sanctions on Mr. Apuzzo for making false statements in his complaint (another reason for the abandonment of the birther side of the argument).

    As a propaganda piece, the NBC argument is effective because it not only appeals to the racists (without making them admit to be racist) but it also appeals to the growing anti-immigrant sentiment as people look for scapegoats for the economic mess.

  26. avatar
    thisoldhippie March 10, 2009 at 2:30 pm #

    Justice comes in many forms. If not through the courts, then by other means.

    Sounds like a threat to me.

  27. avatar
    Hitandrun March 10, 2009 at 3:07 pm #

    Plaintiff attorney Hemenway’s family strikes back:


  28. avatar
    thisoldhippie March 10, 2009 at 3:48 pm #

    What I see is just more of the same. Sanctions are a legal avenue, not a “threat.” If sanctions are sought it would be the decision of the court whether they should be enforced.

  29. avatar
    Bob March 10, 2009 at 4:42 pm #

    Donofrio’s latest on quo warranto.

    By reaching for dicta in Newman v. United States ex rel. Frizzell, 238 U.S. 537 (1915), Donofrio concludes it might possible that fired federal employees would have standing, as “there might be cases under the civil service law in which the relator would have an interest and therefore a right to be heard.”

    He was also encouraged by Andrade v. Lauer, 729 F.2d 1475 (1984), but I got the sense he hadn’t checked out how things turned out on remand.

  30. avatar
    Expelliarmus March 10, 2009 at 4:47 pm #

    I find it encouraging that the mere threat of sanctions seems to elicit such fear. (My hope is that the wise Judge Roberts does order payment of an amount large enough to have some deterrent effect, but not large enough to be used to elicit much sympathy).

  31. avatar
    Expelliarmus March 10, 2009 at 4:54 pm #

    I love the fact that Donofrio seems to think that a DC jury is the preferred way to try the “fact” of whether Obama was born in Hawaii. Wonder what a typical DC jury looks like?

    Along those lines I’m wondering if Donofrio is familiar with the Federal Rules of Evidence. Seems to me that there is one document, clearly admissible, that is prima facie evidence of Obama’s Hawaiian birth, and absolutely no admissible evidence to contravene it. Looks like a directed verdict to me…..

  32. avatar
    Bob March 10, 2009 at 5:16 pm #

    Donofrio isn’t a birth-certificate chaser; he thinks he can convince a judge that his definition of natural born citizen is correct; the jury trial trial is really just for show.

  33. avatar
    Dr. Conspiracy March 10, 2009 at 5:23 pm #

    Sound’s like Heavy’s standard non-specific “tough talk”.

  34. avatar
    Dr. Conspiracy March 10, 2009 at 5:25 pm #

    I think such comments are highly irresponsible. This is not much different from the nuttery about Obama passing the presidential helicopter plans to Iran BEFORE he was even elected.

  35. avatar
    Dr. Conspiracy March 10, 2009 at 5:36 pm #

    Donofrio said that he thinks Obama was born in Hawaii.

  36. avatar
    Dr. Conspiracy March 10, 2009 at 5:39 pm #

    OK, help me out here. If the only issue is a question of law, what does the jury do (and why have one)?

  37. avatar
    Dr. Conspiracy March 10, 2009 at 5:47 pm #

    I would love to see a scholarly decision from the court (along the lines of the Wong decision) on the NBC issue. Of course the nObama conspiracy theorists would claim a cover up by the judge(s) who are in fear of their lives from the all-powerful Obama.

  38. avatar
    Bob March 10, 2009 at 5:54 pm #

    Well, there’s a jury trial because that’s what the DC statute says is required. Of course, the DC statute envisioned scenarios with vote counting, appointments later rescinded, etc. … you know, factual issues.

    If there was ever a natural-born-citizen trial (which there won’t be), the jury would be required to make the obvious factual findings (was Obama older than 35, and had he lived in the U.S. for at least 14 years), and then apply those facts to the definition of the natural born citizen.

    But the judge would the one to determine how to instruct the jury on the meaning of “natural born citizen,” and the meat of the case would be arguing over how the judge would instruct the jury.

  39. avatar
    Dr. Conspiracy March 10, 2009 at 6:02 pm #

    I am very interested in seeing Mr. Hemenway’s response to the show cause order. It could be hugely informative.

  40. avatar
    Bob March 10, 2009 at 6:21 pm #

    Two basic possible responses:

    1. The interpleader was a good-faith attempt to extend existing law, and therefore not sanctionable; or

    2. I’m an old man and the evil Berg made me do it!

    As the judge already has indicated that he thinks the first is a nonstarter, Hemenway may be forced to throw Berg under the bus, and see if the judge bites.

  41. avatar
    Dr. Conspiracy March 10, 2009 at 6:23 pm #

    Perhaps Hemenway could plead mental defect due to his age.

  42. avatar
    Expelliarmus March 10, 2009 at 7:20 pm #

    I can’t envision it happening in Obama’s case.

    I could see it happening in the future if a rival candidate challenges Bobby Jindal in the primaries — since both his parents were immigrants and neither were citizens at the time of his birth. I am pretty sure based on all the existing legal authority that the court would determine Jindal to be a natural born citizen – but the bringing of such a case would be a good way for a political rival to sideline him –or, after all the fuss raised over Obama, he might want to collude with another candidate to set up a test case in order to establish his entitlement well ahead of the primary season. (It’s iffy, but there is the basis for a declaratory relief action).

    I don’t know what the GOP lineup will be in 2012 or 2016… but Republicans may someday come to regret the seeds that are being planted in the minds of future voters about the definition of “natural born citizen”.

  43. avatar
    mimi March 11, 2009 at 5:24 am #

    Are you kidding? Remember the outrage from the birthers when Carol Greenberg had to pay Court Costs?

  44. avatar
    Ian Gould March 11, 2009 at 6:54 am #

    Is there some way Jindal can petition the Court to rule on his eligibility now rather than waiting until 2012?

  45. avatar
    richCares March 11, 2009 at 9:26 am #

    “Plaintiff attorney Hemenway’s family strikes back:”
    correction: Plaintiff attorney Hemenway’s family whines about possible sanctions.

  46. avatar
    Bob March 11, 2009 at 10:15 am #

    Not ripe; would be an advisory opinion.

  47. avatar
    Hitandrun March 11, 2009 at 1:20 pm #

    Apparently race-baiting is not enough, Doc. You’ve now moved to alien-baiting. Do you also conflate illegal and legal ‘immigrants’ as you do CnOLB and CteOLB?


  48. avatar
    Expelliarmus March 11, 2009 at 5:49 pm #

    Actually, I think she carried on and was very upset at the outset… but after the initial outcry it seemed to die down pretty quickly. I think she thought she was on the hook for thousands of dollars worth of attorney fees, and when she learned she only had to pay a few hundred in costs (basically to reimburse the other side for filing fees)… she probably was much relieved and let it all go. Either that, or else she found somewhere outside my own radar to air her grievances.

  49. avatar
    Expelliarmus March 11, 2009 at 5:58 pm #

    Follow up: I checked, and it was all resolved very quietly because Gary Kreep’s people paid the costs entailed:

    “02-02-2009 The United States Justice Foundation, Executive Director Mr. Gary Kreep (main counsel in the Keyes v Bowen), has reimbursed Ms. Carol Greenberg for her filing fee in Greenberg v. Brunner et al. Mr. Kreep has further commited to paying any and all additional costs Ms. Greenberg may incur with this filing.”

    So that confirms my sense that Greenberg freaked because she didn’t understand that an award of costs on dismissal was “business as usual”…. Kreep stepped up to the plate because whatever his politics, he’s actually a real lawyer with actual litigation experience, accustomed to the ordinary expenses of litigation.

  50. avatar
    Expelliarmus March 11, 2009 at 6:04 pm #

    It’s going to be procedurally difficult for him to get a court ruling on the issue in any case. The problem for Jindal is really that this sets up a political barrier for him among the far-right constituency that he would have to win over to get the nomination.

  51. avatar
    Dr. Conspiracy March 11, 2009 at 6:41 pm #

    Yes, I believe anti-immigrant both aimed at legal and illegal, explain some of the anti-Obama agitation. And I’ll throw in religion too.

    But as an exercise, open a copy of the CnOLB and scroll down to the bottom and tell me what very large word in white letters on a blackground follows the word “THIS”?

  52. avatar
    brygenon March 11, 2009 at 8:17 pm #

    The birther conspiracy theory isn’t a Republican thing. It’s a kook thing.

  53. avatar
    Hitandrun March 12, 2009 at 3:10 pm #

    Such tactics are beneath you. Leave them for the others in your echo chamber. While both are certificates, the CnOLB is NOT a CteOLB. Period.

    Stay well,

  54. avatar
    Dr. Conspiracy March 12, 2009 at 6:04 pm #

    Actually it is. I work with vital statistics organizations all over the country. The terms are interchangeable. Anybody who knows anything about vital statistics in the country will tell that your distinction is imaginary.

  55. avatar
    Hitandrun March 12, 2009 at 6:25 pm #

    I believe we have here a faiiilure to communicate. I find your persistence in equating in Mr Obama’s case the formal (capitalized) CnOLB and CteOLB bizarre, to say the least.

    Stay well,

  56. avatar
    Dr. Conspiracy March 12, 2009 at 6:33 pm #

    That’s OK, I find your insistence that there is something relevant to the question of Obama’s eligibility to be president in the two document versions equally bizarre.

  57. avatar
    Hitandrun March 13, 2009 at 4:13 pm #

    I believe Mr Obama is able to demolish the birther case once and for all by releasing a properly attested hospital-generated CteOLB, assuming that is the provenance of the vault document. Only Nobots bred in out homegrown fever swamps will remain unconvinced. Their backup Donofrio arguments remain without substance, as you have demonstrated time and again, appealing basically to that same irrational frenzied constituency.

    Most of your arguments here and in other threads against release of the vault document are either evasions, diversions or semantic obfuscations. They do not convince.

    Regards from a fellow McGovernite,

  58. avatar
    Dr. Conspiracy March 13, 2009 at 8:10 pm #

    My central intent with this web site is to tell the truth about the evidence as it stands. If I had a vault copy to share with you (and no legal or contractual obligations to keep it secret) I would share–but I don’t. If the document should come to light, then I’ll work to insure it is accurately interpreted.

    Logic tells me what the vault record says insofar as Obama’s eligibility. Since I have no doubts, I am not calling for more information to satisfy myself.

    This article is perhaps outside the scope of the web site. We will just have to see what is demolished if and when the vault record comes to light.

  59. avatar
    Dr. Conspiracy March 17, 2009 at 9:10 pm #

    A supplement to Hemenway’s Show Cause response is available on the Docket for Hollister v. Soetoro.