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Donofrio misfires

In a recent article, Leo Donofrio takes aim, it looks like, at this blog.

Long-time readers here know that I took up the defense of President Chester A. Arthur after he was most unjustly maligned by Mr. Leo C. Donofrio. While he published a picture of the cover of Arthur foe A. P. Hinman’s book, How a British subject became president of the United States, I got a real copy through interlibrary loan, scanned, and published it in its entirety, uncovering an interesting letter, that is the starting point of Donofrio’s latest essay. But Donofrio must have misread what I wrote, because he misrepresents what I said rather badly. Here’s the relevant bit from Donofrio:

Thomas F. Bayard was a US Senator from Delaware between 1869 and 1885, which includes the Chester Arthur administration.  From 1885 to 1889, Bayard was Secretary of State under Grover Cleveland.  This is the same Bayard mentioned in Hinman’s book on Chester Arthur.  Hinman wrote to Bayard and Bayard’s response has been erroneously cited by those who support Obama’s eligibility.  For some reason I have yet to comprehend, they argue Bayard was aware of Chester Arthur having been born a British subject.

But nothing in Bayard’s letter to Hinman supports that position.

I daresay Mr. Donofrio has a hard time comprehending this view, because no one I know of has ever made such a claim. My article in which I present Bayard’s letter, Chester A. Arthur: Rest in Peace, claims that it is likely that Hinman (not Bayard) knew about Arthur’s father’s naturalization status based on the letter. But I never said, nor do I have any reason to believe one way or the other, what Senator Bayard believed.

One can infer from Bayard’s reply to Hinman, that Hinman had asked a question something like this:

If a father becomes a naturalized US citizen, does that make his minor children natural born US citizens?

Hinman, whose claim is that Arthur was born in Canada (a view widely discounted by modern historians), must have included that letter in his book as proof that the naturalization of Arthur’s father either did not, or could not, make him a natural born citizen (if he were born in Canada). I can see no other reason to raise this question unless Hinman knew this was the case, and wanted to block such an avenue towards presidential eligibility.

If A. P. Hinman, a political opposition lawyer hired to get dirt on Arthur, knew that Arthur’s father became a citizen before Arthur was born, then the whole notion of Arthur hiding his father’s naturalization status and fooling everyone, is false.

Does Donofrio provide the text of Bayard’s letter? Does he provide a link to Bayard’s letter? You should know Nobot lawyers well enough by now to correctly guess the answer to those questions. Have I provided a link to Donofrio’s article? (Well you should have seen it first thing above.)

But this isn’t the whole story. Bayard not only gives us evidence as to what Hinman knew and when did he know it, Bayard also comments on what a natural born citizen is:

DEAR SIR :-In response to your letter of the 7th instant-
the term” natural-born citizen,” as used in the Constitution and Statutes of the U. S., is held to be a native of the U. S.

Hinman. Page 89

But not content to make a false claim about what others have said, Donofrio launches into a grander bit of misinformation, claiming proof of exactly the opposite:

US Government Ruling From 1885 by Secretary of State Thomas Bayard Proves Chester Arthur’s British Birth Was Kept From Public.

Now we get into the fine print, and I mean literally to small to read on his web page! Sometimes I think these lawyers publish long-winded things in hopes that no one will actually read them. I tire looking for the gold coin in a bucket of mud just like everyone else. [If you want to actually try to read the thing, look at the little “toggle full screen link” upper right on the Scribd image, then click the Magnify gadget to make it big enough to read, and then skip the first 2 pages which have nothing at all to do with the matter, reminding me of an exchange from Douglas Adams’ book, the Hitchhiker’s Guide to the Galaxy ending in “Beware the leopard“.] The preceding claim is a remarkable one. Does the tiny text back him up? Basically the text Donofrio offers backs up his remarkable claim in a round-about way, saying that if Bayard had known, then we would have heard from him, since he believe such persons were not citizens. Note that I said “not citizens”, rather than “not natural born citizens”.

Donofrio sums up the case by saying:

It’s important we note Bayard’s concern that the German subject was, “on his birth subject to a foreign power“. That’s the key. “On his birth”, Chester Arthur was born subject to a foreign power.

Donofrio’s argument would be pretty good if the case Bayard was discussing is like that of Arthur. It is not. To understand the difference, one may turn to a citation in US v. Wong Kim Ark:

[The child of alien parents born in the United States] allegiance to the United States is direct and immediate, and, although but local and temporary, continuing only so long as he remains within our territory, is yet, in the words of Lord Coke in Calvin’s Case, 7 Coke, 6a, ’strong enough to make a natural subject, for, if he hath issue here, that issue is a natural-born subject’

While Arthur’s father was not only within the territory of the United States, he was a permanent resident by any definition of the term, and subsequently became a naturalized American citizen, the German father of Richard Greisser’s was domiciled in Germany at the moment of Richard’s birth (and not subject at all to the jurisdiction of the United States).

However, the Nation Article cited by Donofrio, rather than supporting Donofrio’s claims, demolishes the whole natural born citizen denial nonsense with many citations and cases. I comment it to everyone. Remember, it starts on page 3.

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14 Responses to Donofrio misfires

  1. avatar
    Greg September 10, 2009 at 10:09 pm #

    Here’s the actual letter from Bayard to Boyd Winchester on the issue of Richard Greisser. It was cited by the dissent in Wong.

  2. avatar
    Sally Hill September 10, 2009 at 11:58 pm #

    But the rest of his letter is interesting:
    “The naturalization by law of a father before his child attains the age of twenty-one, would be naturalization of such minor.”

    Since Arthur’s father naturalized when Arthur was 14 years old, that would make Arthur a naturalized citizen. Something is odd there – if, as you claim, Arthur were considered a NBC at birth solely due to his US Citizen mother, but then when his father naturalizes, Arthur then becomes a naturalized citizen of the US? But wait – that’s Alice in Wonderland crazy!

    I understand it is his status at birth that governs his eligibility, but it would seem then that Arthur was only a naturalized citizen when he was POTUS. This certainly is not out of the realm of possibilities -that a person would be born a NBC and through their OWN actions, became naturalized and went on to become POTUS, but it would seem odd and hard to explain that it occurs as a direct result of his FATHER’S actions.

    And down the rabbit hole we go….

  3. avatar
    NBC September 11, 2009 at 12:45 am #

    This certainly is not out of the realm of possibilities -that a person would be born a NBC and through their OWN actions, became naturalized and went on to become POTUS, but it would seem odd and hard to explain that it occurs as a direct result of his FATHER’S actions.

    Which is why the child maintains both kinds of citizenship and can chose. For instance, assume that a father has his domicile of choice in the US, although his domicile of birth is French. When his son is born on US soil, he gains US citizenship through his father’s domicile in the US. If the father later moves to South America and is naturalized, the child gains another nationality. When the child reaches age of majority, he can chose. Even then, some instances of double allegiance may continue, a minor consequence of dueling laws of citizenship. The latter also argues against a Law of Nations guiding citizenship.

  4. avatar
    Greg September 11, 2009 at 12:49 am #

    A natural born citizen cannot be naturalized. And, in fact, nothing the parents can do will affect that natural born citizenship.

    A child who was born an alien can be naturalized by the actions of their parents (I believe that’s still the rule). But, it doesn’t work in the other direction.

  5. avatar
    Bob September 11, 2009 at 1:23 am #

    And down the rabbit hole we go….

    Except, as Greg noted, it was cited in the dissent of Wong Kim Ark. In other words, to the extent it was even correct pre-Wong Kim Ark, it was no longer correct after the decision.

  6. avatar
    sarina September 11, 2009 at 1:24 am #

    A birther told me to read this article on Canada free press. She said, ” another smoking gun”
    “The Theory is Now a Conspiracy and Facts don’t lie.”
    I think this is old rumor right?

    http://canadafreepress.com/index.php/article/14583

  7. avatar
    Shrieking Wombat September 11, 2009 at 1:27 am #

    Well this is interesting. I wonder what Orly has managed to get arse-about now?

    “Subject: BREAKING!!! Judge Carter is Granting us Expedited Discovery – Immediately !!!! OBAMA ELIGIBILITY CASE”

    http://216.221.102.26/blogger/post/Is-Judge-Carter-is-Granting-Expedited-Discovery-of-Obamas-records-Immediately.aspx

  8. avatar
    Bob September 11, 2009 at 1:40 am #

    I haven’t heard that one before, but it isn’t particularly convincing. Way too much speculation.

    The author presenting two different nomination certifications with different language and concludes from that the DNC knew Obama was ineligible.

    The DNC sent out 50 such certifications, each governed by the respective states’ laws. It is entirely possible that different states require different legaleze, which would explain the differing verbiage. But our author does not explain where these images came from, so there’s no way prove this. (And yet another example of birfer burdenshifting.)

    And, more obviously, the “theory” is stupid. Why would the DNC go to such effort? If, as the author implies, the whole point was to avoid a perjury trap, when why ever certify (and then digitally scan and upload) something that wasn’t true? Occam’s razor and all that.

  9. avatar
    NBC September 11, 2009 at 2:25 am #

    Exactly

  10. avatar
    Expelliarmus September 11, 2009 at 4:15 am #

    Here’s my guess:

    A while back Orly filed an amended motion for discovery in front of the magistrate, after her first motion was tossed out because she didn’t have her bar number on the papers and various other screw-ups. But Orly also asked for review of the magistrate’s order tossing the first motion, AND she moved to disqualify the magistrate — the pending disqualification motion stayed any further action on her amended motion.

    In court on Tuesday, Carter upheld the magistrate’s initial ruling and denied the motion to disqualify the magistrate.

    That left Orly’s amended motion on file, with no action taken.

    Following that, I think on Wednesday, Carter issued an order referring that amended motion back to the magistrate.

    So maybe Orly thinks that sending the pending order back the magistrate means she has been granted discovery.. when in fact all it means that her paperwork has been bounced back to another judge.

    Meanwhile, the US Attorneys have filed an ex parte application before the magistrate to have a stay on all discovery until Oct. 5th – if Orly does not immediately file some sort of opposition, that stay is likely to be granted.

    So, quite possibly around Tuesday or Wednesday next week we’ll see an order from the magistrate denying Orly’s motion for discovery and granting the stay.

  11. avatar
    kimba September 11, 2009 at 9:38 am #

    Oh, but Judge Carter wants to hear the evidence! I think he’s probably given Judge Nakazato a good talking to about this and we’ll soon hear that Obama has been ordered to come explain himself to Judge Carter. { snark tag, folks} These people sure never stop believing do they? I had no idea so many people were so ignorant and so gullible.

  12. avatar
    Loren September 11, 2009 at 11:26 am #

    This just proves what I’ve been saying all along: that Joe Biden was born in Canada.

  13. avatar
    Heavy September 11, 2009 at 11:53 am #

    A natural born citizen cannot be naturalized? Hmmm…

  14. avatar
    Greg September 11, 2009 at 12:33 pm #

    Not in the country he was already a citizen in by birth. He could become a naturalized citizen of some other country.