Main Menu

Winnowing the Grinols

In form, Grinols v. Electoral College is an extremely important case. The 2012 Presidential Election hangs in the balance. Pending before the Court is a motion for a temporary restraining order that would stay the Constitution itself and could declare Barack Obama ineligible for the Presidency. In substance, it is just a crank with no legal standing spouting some conspiracy theories and asking for something that has no basis in law.

The motions are filed for the hearing January 3 on Orly Taitz’ motion for a temporary restraining order in the case of Grinols v. Electoral College. Taitz wants to stop Congress from certifying the the election on January 4.

Defendants filed notices of objection, and Taitz has replied. (See links to documents at the end of the article.) As I see it, there are five major issues in this case:

  1. Injunction against California defendants is moot
  2. Proper service of Defendants
  3. Representation of Obama by the US Attorney
  4. Standing of Plaintiffs
  5. Jurisdiction of the Court

The California Defendants provided a copy of the certification of the Electoral College vote that had been sent to the President of the Senate on or before Taitz filed her motion for a temporary restraining order. They say that it’s too late for the court to stop them from doing what’s already done. Taitz, amazingly, says it’s not moot, but I cannot explain her reasoning.

The Federal Defendants (Obama, Biden and the Congress) argue that service was defective, that the Federal Rules of Civil Procedure require service by “registered or certified mail.” Taitz claims that Federal Express is “registered or certified mail,” although she provides no precedent. FRCP 4 (g)(i)(1)(A)(ii)(B) says specifically:

send a copy of each by registered or certified mail to the civil-process clerk at the United States attorney’s office

Do you think FedEx might file an amicus brief here? Sorry Orly, but this has been decided already in the 9th Circuit case of Magnuson v. Video Yesteryear. The Court, noting some ambiguity in the law, cited a number of cases on point including one from the 7th Circuit that concluded that “delivery by Federal Express is not ‘mail’ for the purposes of Rule 4.” This is somewhat complex and real attorneys might want to do a more careful analysis of this issue. Taitz also didn’t address the complaint to the “civil-process clerk.”

According to Taitz, she sued the President in his personal capacity (as a candidate) and that it is inappropriate for the US Attorney to represent him.

As defendant Obama was sued as a candidate for office and not as the US President, he was not entitled to be represented by the U.S. attorney’s office.

She has moved to strike everything in the US Attorney’s reply related to Obama. This objection, however, ties back to service. Taitz attempted to serve Obama through the US Attorney in Sacramento. There are only two possibilities here: either Taitz served the President in his official capacity through the US Attorney, or she did not serve him at all. I have some sympathy for Taitz’ objection to the US Attorney representing Obama, but I have no sympathy for her not serving the President with the complaint and expecting him to respond.

The issue of standing has been discussed at length since Berg v. Obama, and I won’t reiterate that here. Taitz argues that her minor party presidential candidates and her Electoral College candidates have standing. So far courts haven’t found standing in the various mixes of defendants, including presidential candidates who had no chance of winning.

Finally, to address the elephant in the room, Defendants argue that the federal courts cannot tell the Congress how to perform their legislative function. Taitz says that under her temporary restraining order, Congress is free to debate Obama’s eligibility, thereby fulfilling their role under the Constitution; she just wants to preclude them from doing anything that results in Obama becoming President again. Taitz cites one case of a TRO, Hedges et al v Obama et al 12-cv-00331. She argues that since the Courts can declare an act of Congress unconstitutional, they can declare a presidency unconstitutional. What Taitz didn’t find was any precedent where a Court restrained Congress from carrying out its legislative functions.

I think what Taitz is saying is that the Court doesn’t have the jurisdiction to stop Congress from certifying the election, but that it has the power to delay it, decide Obama’s eligibility, and then inform Congress of its decision so that Congress can be informed before they certify the election.

This leaves one loose end, and that is the court’s jurisdiction to enjoin Barack Obama from taking the oath of office. Taitz cites Miller v. Campbell 3:10-cv-00252. Taitz says: “Murkowski was enjoined from taking the oath of office as the U. S. Senator until the constitutional issues were resolved.” As far as I can tell from reading about the case, Taitz is lying. The Court did enjoin the certification of the election pending decisions on the counting of certain write-in votes, but it did not enjoin Murkowski from taking the oath of office.

Orly Taitz’ briefs are getting better, but no amount of lawyering can get around the fact that she’s wrong on the law.

Grinols case documents:

, , , , ,

39 Responses to Winnowing the Grinols

  1. avatar
    Reality Check December 29, 2012 at 11:18 am #

    In the section where she tries to address the “Speech and Debate Clause” objection by the USA Attorney she claims that since Congress apparently moved the certification date earlier then the court can move it later. This is typical flawed Taitz thinking. Congress controls it own functions and the court does not.

  2. avatar
    john December 29, 2012 at 11:36 am #

    From a Florida Patriot——————————-
    If you want to oust Obama, it can be done. What is necessary is that ONE Senator and ONE Congressman notify the Joint Session of Congress on January 4 (changed from 1/6) that they object to inaugurating Obama — UNTIL he proves his eligibility to be President. (He can’t, since his father was a British citizen and the Constitution requires that the president be born of two U.S. citizens).

    If you live in a”red” state that has a GOP Senator and Congressman, just contact them NOW by fax, phone or e-mail.

    If you live in a “blue” state, contact a GOP Senator and Congressman in another GOP state, e.g. Florida.

    If you live in Florida, phone Sen. Marco Rubio at 202-224-3041 and Rep.Richard Nugent at 202-225-1002

    You can FAX Nugent at 202-226-6559. To E-Mail Rubio, log on to rubio,senate.gov. click on “Contact Marco” at top right of homepage and pull down to “Contact Form” and write your message. something to the effect that he MUST file a written objection to inaugurating Obama since he is ineligible. Add: “If you fail to do this — and elect to violate your sworn Oath to protect and defend the Constitution — you can forget about my voting for you ever again and kiss my campaign donations goodbye as well. Choose wisely. America is at stake.”

    NOTE: Deadline for contact is 1/3/13. Do it now. And be sure to pass this along to other Patriots.
    THIS IS OUR LAST CHANCE.

  3. avatar
    Northland10 December 29, 2012 at 11:52 am #

    “Taitz, amazingly, says it’s not moot, but I cannot explain her reasoning.”

    I suspect Taitz is also unable to explain her reasoning.

  4. avatar
    Andrew Vrba, PmG December 29, 2012 at 1:04 pm #

    I’m surprised Taitz can get herself dressed in the morning!

  5. avatar
    richCares December 29, 2012 at 1:16 pm #

    has Orly tried to place an injunction on Time Magazine for the Obama Man of the Year award?

  6. avatar
    JackOL December 29, 2012 at 2:04 pm #

    The 6th of January counting of the electoral votes is codified in 3 USC 15. I would assume Congress could meet earlier (e.g. closest previous weekday), but certainly not later.

    http://www.archives.gov/federal-register/electoral-college/provisions.html#15

  7. avatar
    JackOL December 29, 2012 at 2:12 pm #

    So John, I assume you’ve contacted Rubio and Nugent. How did that work out for you?

  8. avatar
    Rickey December 29, 2012 at 2:14 pm #

    There are only two possibilities here: either Taitz served the President in his official capacity through the US Attorney, or she did not serve him at all.

    As I recall, she did the same thing with at least one defendant in the Mississippi case. Orly wants to have it both ways, and she once again demonstrates that she never learns from her mistakes.

  9. avatar
    Dr. Conspiracy December 29, 2012 at 2:21 pm #

    I think she was confusing the temporary restraining order with some other kind of relief the court could give.

    Northland10: I suspect Taitz is also unable to explain her reasoning.

  10. avatar
    Ben P. December 29, 2012 at 2:41 pm #

    As a recent lurker with only one or at most two posts to my credit, I really have to ask this: Has anyone bothered to expain to John that under Section 3 of the U.S. Code, any retirement to debate by the separate houses of Congress resulting from the whole one-Rep-one-Senator object thing requires a succinct written statement for objection which gives grounds but contains no arguments on those grounds; gives each Rep or Senator *five minutes* to speak, and the entire debate can take no more than two hours before the vote is taken; and that only by winning a majority in both Houses can the votes of a state be stricken? I also don’t see, but I’m sure one of the fine graduates of Fogbow Law will tell me if I’m wrong, that any Constitutional or statutory requirement exists that the Senate or the House of Reps must admit or subpoena evidence or witnesses.

    So, as I understand it, it goes like this, even in a ‘best case’ scenario:
    1. Senator Joe and Representative Jim (hereafter, SJ and RJ) are somehow convinced by the birther crowd to place an objection in writing.
    2. SJ and RJ submit a statement of objection in writing during the counting of the votes of a state. The objection states simply something like ‘We do not believe that candidate Barack Obama meets the constitutional requirements of eligibility to the office of President’. Perhaps it adds, ‘Specifically, we do not believe he meets the requirements for citizenship’. It cannot contain more than that, since that would be an argument. It can only state the actual grounds for objection.
    3. Vice-President Biden, in his capacity as President of the Senate, calls for recess so each house of Congress can go to their respective chambers and deliberate this objection.
    4. Assuming 24 members of each house care enough to speak on this, a maximum of two hours pass. This might be less. But each member of each house gets no more than 5 minutes to speak his mind on this.
    5. Given that the candidates are not present, nor their representatives, any attempt by a member of any House to summon them to give testimony or demand evidence from them as to one way or another cannot succeed under these time constraints.
    6. At the end of the two hours, the Senate votes. The *majority Democratic Senate will not vote to refuse the certified votes*. So even if the House does, this process fails.
    7. The bodies reconvene. The President of the Senate says ‘Okay, so, both houses did not agree to reject the votes, therefore the votes get counted. We move on’.

    In the end, the One-Senator-One-Rep thing fails. And it is a waste of time. Because it cannot, viewed logically either with an eye at mathematical certainty or the laws of the land, succeed in this fashion. And so here is our John, who seems to treat this like a Kryptonite Bullet aimed right at Barak-El, but … uh …. no, not so much.

    Sorry to ramble about this, and I apologize if I have erred in the quality as well as the quantity of the ramble, but …. either I’m missing something key, or John is. So I’d like someone to confirm one way or the other. :)

  11. avatar
    ObiWanCannoli December 29, 2012 at 2:43 pm #

    Just for the sake of argument, let’s assume the defendants didn’t respond and send in Mr.Empty Chair, Esq., for the Jan 3 hearing. Can the court grant orley’s motions by default? I am sure judge Morrison doesn’t want his court laughed at for eternity. If my reading of the constitution is right, congress can tell the judge to take a hike and certify the dually conducted election.

  12. avatar
    donna December 29, 2012 at 2:44 pm #

    John:

    i SURE HOPE you contacted your representatives – we wouldn’t want you and yours to miss out on your “LAST CHANCE”

    let’s see how effective the birthers are with THIS effort since they have (NOT) been soooo successful with their others

    after all, there must be millions of “patriots” out there to oust the “usurper”

    show up or forever hold your peace!!!!!!!

  13. avatar
    Andrew Vrba, PmG December 29, 2012 at 2:52 pm #

    Dr. Conspiracy:
    I think she was confusing the temporary restraining order with some other kind of relief the court could give.

    The only relief the court can give, as far as Taitz is concerned, is a gavel upside her face. I know I’d certainly feel relieved.

  14. avatar
    Reality Check December 29, 2012 at 2:54 pm #

    I think you did a great job and that is exactly how it would play out. The only question is are one Republican senator and one Republican representative ready to make a complete jackass of themselves?

    Ben P.: As a recent lurker with only one or at most two posts to my credit, I really have to ask this:

  15. avatar
    Reality Check December 29, 2012 at 3:21 pm #

    John’s letter got me thinking about just how Mr. R and Mr. S. might word such an objection. I took a stab at writing it for them:

    (Addressed to the President of the Senate and Vice President Joe Biden)

    Mr. President:

    We respectfully object to the counting of the electoral votes from the state of Moosilvania (insert state here) because we have reason to believe President Obama is a not a natural born citizen since the birth certificates he has released may be fraudulent. How do we know this? Well, we read it in Jerome Corsi’s articles on the WND website on the internet. We also watched YouTube video’s made by a slew of self proclaimed experts who also happen to virulently hate Obama. By the way Mr. Biden one of them, Mara Zebest, also thinks that picture of you and the President in the situation room when the Bin Laden raid was in progress was also faked.

    Then there is the Cold Posse run by 80 year old sheriff Arpaio. His lead investigator, you know, the used car salesman Michael Zullo, who was one of twelve cops and crossing guards in a tiny burg in Jersey for a couple of years, says it is fake too.

    Therefore, based on the above-mentioned reasons and ignoring what almost 200 courts and the state of Hawaii have said, we respectfully file this objection.

    John, please feel free to pass this along to Senator Rubio and your representative there in Florida. Maybe you can convince Allen West – oh wait, he will not be there will he?

    They can thank me later.

  16. avatar
    Northland10 December 29, 2012 at 3:35 pm #

    Ben P.: either I’m missing something key, or John is. So I’d like someone to confirm one way or the other.

    There are 2 constants in the birther world:

    1. Orly will find new and original ways to fail service, and

    2. John is always wrong.

  17. avatar
    Thomas Brown December 29, 2012 at 3:56 pm #

    Northland10: There are 2 constants in the birther world:

    1.Orly will find new and original ways to fail service, and

    2.John is always wrong.

    …and he’s always been wrong in a haughty, condescending, belligerent, sanctimonious, incoherent & offensive manner.

    Oh, and he’s smarter than all of us, but would have failed 5th grade spelling at the public school I attended 50 years ago.

  18. avatar
    Butterfly Bilderberg December 29, 2012 at 4:04 pm #

    “Orly Taitz’ briefs are getting better”

    Doc, could you ask Mrs. C to take your temperature? I think you may have a fever.

  19. avatar
    Dr. Conspiracy December 29, 2012 at 4:08 pm #

    “Better” is a relative term.

    Butterfly Bilderberg:
    “Orly Taitz’ briefs are getting better”

    Doc, could you ask Mrs. C to take your temperature?I think you may have a fever.

  20. avatar
    Joey December 29, 2012 at 4:17 pm #

    One thing that remains uncertain to me is what would happen in states that have one Democratic Senator and one Republican like Florida with Rubio and Nelson.. Since states only get one vote per state, the split states could effect the final outcome of voting on a written objection in the Senate.

  21. avatar
    Dr. Conspiracy December 29, 2012 at 4:19 pm #

    I’m confident that the US will be represented. But show or no show, the judge can’t do what the TRO asks him to do, so he won’t do it.

    ObiWanCannoli: Just for the sake of argument, let’s assume the defendants didn’t respond and send in Mr.Empty Chair, Esq., for the Jan 3 hearing. Can the court grant orley’s motions by default? I am sure judge Morrison doesn’t want his court laughed at for eternity. If my reading of the constitution is right, congress can tell the judge to take a hike and certify the dually conducted election.

  22. avatar
    Ben P. December 29, 2012 at 4:25 pm #

    Joey:
    One thing that remains uncertain to me is what would happen in states that have one Democratic Senator and one Republican like Florida with Rubio and Nelson.. Since states only get one vote per state, the split states could effect the final outcome of voting on a written objection in the Senate.

    I believe the one-vote-per-state thing only applies to the House and the Senate directly voting for Prez and VP if nobody gets a majority of votes, not to the actual deliberations over whether to accept the disputed votes from a state if one Rep and one Senator object to a state’s votes in writing.

  23. avatar
    Dr. Conspiracy December 29, 2012 at 4:26 pm #

    What Taitz is trying to do is to get the certification of the election postponed until she has her shot at proving Obama ineligible and then get that verdict known by the Congress before they debate. She will never get the TRO, and I assume the case will be dismissed sometime or other.

    Ben P.: 5. Given that the candidates are not present, nor their representatives, any attempt by a member of any House to summon them to give testimony or demand evidence from them as to one way or another cannot succeed under these time constraints.

  24. avatar
    Daniel December 29, 2012 at 4:27 pm #

    john:

    THIS IS OUR LAST CHANCE.

    Well… putting aside, for the moment, that you have no chance at all, I am confident in the ability of birthers to invent OMG moments as required, no matter how many or how recently their previous OMG moments have failed.

  25. avatar
    Ben P. December 29, 2012 at 5:57 pm #

    Dr. Conspiracy:
    What Taitz is trying to do is to get the certification of the election postponed until she has her shot at proving Obama ineligible and then get that verdict known by the Congress before they debate. She will never get the TRO, and I assume the case will be dismissed sometime or other.

    Oh, yeah, I totally get Ole Doc Taitz’s cunning plan … I don’t agree with it, but I *get* it. It’s John that has me completely baffled.

  26. avatar
    Keith December 29, 2012 at 7:58 pm #

    ObiWanCannoli:
    Just for the sake of argument, let’s assume the defendants didn’t respond and send in Mr.Empty Chair, Esq., for the Jan 3 hearing.Can the court grant orley’s motions by default?I am sure judge Morrison doesn’t want his court laughed at for eternity.If my reading of the constitution is right, congress can tell the judge to take a hike and certify the dually conducted election.

    Doesn’t matter if Orly somehow blackmailed the judge into throwing away his career or not. The Courts do not have any authority to tell Congress how to do its Constitutionally mandated job. Period.

  27. avatar
    Rickey December 29, 2012 at 8:33 pm #

    john:
    From a Florida Patriot——————————-
    If you want to oust Obama, it can be done. What is necessary is that ONE Senator and ONE Congressman notify the Joint Session of Congress on January 4 (changed from 1/6) that they object to inaugurating Obama — UNTIL he proves his eligibility to be President. (He can’t, since his father was a British citizen and the Constitution requires that the president be born of two U.S. citizens).

    If you live in Florida, phone Sen. Marco Rubio at 202-224-3041 and Rep.Richard Nugent at 202-225-1002

    Good idea, John. I just sent a fax to Marco Rubio. I advised him that if he objects on the grounds that Obama’s father was not a U.S. citizen, he is conceding that he is not eligible to be President either.

    I am sure that Senator Rubio will be happy to renounce his own presidential ambitions in a doomed effort to disqualify President Obama.

  28. avatar
    Northland10 December 29, 2012 at 9:18 pm #

    Ben P.: Oh, yeah, I totally get Ole Doc Taitz’s cunning plan … I don’t agree with it, but I *get* it. It’s John that has me completely baffled.

    This illustration may help you understand John (or many other Birthers, for that matter). Not only is this John’s type of character, he wants his Senator to go from Apollo to Jester.

  29. avatar
    bgansel9 December 30, 2012 at 10:22 am #

    Rickey: Good idea, John. I just sent a fax to Marco Rubio. I advised him that if he objects on the grounds that Obama’s father was not a U.S. citizen, he is conceding that he is not eligible to be President either.

    Gosh, I just love Karma. Who would have thought that John would be represented by someone who would never be considered an NBC under John’s delusional understanding of the law? That’s simply delicious.

  30. avatar
    misha marinsky December 30, 2012 at 12:55 pm #

    john: THIS IS OUR LAST CHANCE.

    Did you copy that from a gas station in the Mojave Desert? “LAST GAS FOR 200 MILES”

  31. avatar
    AlCum December 31, 2012 at 3:47 am #

    john:
    THIS IS OUR LAST CHANCE.

    You never had any chance since Obama’s eligibility is a proven fact that cannot be refuted.

  32. avatar
    JPotter December 31, 2012 at 9:39 am #

    john: THIS IS OUR LAST CHANCE.

    You’ll manage to find (read: “make up”) another. And another. And another. I have faith in you. Just like my new imaginary deity of choice, Κοαλεμος, you guys never disappoint.

  33. avatar
    G January 1, 2013 at 3:54 pm #

    Actually, I consider Taitz and all the other foolish Birther lawyers attempts to be less “cunning” and even more futile, if that can even be possible with the delusion that is Birtherism.

    Other than increasing the incompetency quotient and stark raving-mad batsh*ttery of defiance in the face of reality, the court room road to Birtherism (and “standing” in most of these cases) had its coffin nails sealed a long, long time ago in this process. But Birthers are incapable of learning from their failures.

    Same with fake Grand Jury attempts and all their other nuisance campaigns.

    At least John is pining his false hopes on a real existing process to challenge the results of a Presidential election, so I give him that. But as you pointed out in your previous post, even under the best-case real-world scenario of how that could play out, it would fail.

    …But for John, hey, at least he has a “valid” process to attempt…with a fixed date to look forward to…so I think it really is a way for him to mentally get through this period between the election and the “inevitable”, where he can still cling to dreaming that the re-inauguration can be legally stopped…

    Whether he is capable of finally moving forward with his life after his last lifeline of fantasy fails…

    …well that remains to be seen. Based on past results, most of us are understandably skeptical. However, some people just need a final “attempt” before they are emotionally able to let go and *finally* move on…just so they feel that they’ve done everything they could, before having to accept an inevitable that they can’t personally stomach.

    Just as with the bitter PUMAs of last cycle, there will be some portion of the ODS “die-hards” that do actually move on with their life, once the inauguration has completed. I can always hold out a shred of hope for John’s mental health, that he becomes one of them….

    Ben P.: Oh, yeah, I totally get Ole Doc Taitz’s cunning plan … I don’t agree with it, but I *get* it. It’s John that has me completely baffled.

  34. avatar
    1600Penn January 3, 2013 at 4:34 pm #

    May you all prosper and live long under Obamacare.

  35. avatar
    JPotter January 3, 2013 at 4:53 pm #

    1600Penn:
    May you all prosper and live long under Obamacare.

    Thanks, you’re so very kind, the same to you, many times over.

    Wait, what’s that? “1600Penn” may not be sincere? Well, the truth always find a way, even if it must use faithless lips, to find utterance. Yes, the rocks themselves will cry out! ;)

  36. avatar
    Majority Will January 3, 2013 at 4:58 pm #

    1600Penn:
    May you all prosper and live long under Obamacare.

    Thanks!

    I also look forward to visiting President Obama’s Presidential library in a few years.

    Each visitor will be allowed to leave his or her own special birther exhibit in the restroom toilets.

  37. avatar
    Scientist January 3, 2013 at 5:40 pm #

    1600Penn: May you all prosper and live long under Obamacare.

    You mean the health insurance reform put in place by Mitt Romney in Massachusetts that has led to 98% of the population being covered by insurance and one of the lowest unemployment rates in the country? Why wouldn’t we all live long and prosper?

  38. avatar
    MattR January 3, 2013 at 6:08 pm #

    1600Penn:
    May you all prosper and live long under Obamacare.

    Thanks. With Obamacare I will have the freedom to quit my job and start my own business while still being able to afford health insurance that will cover my chronic kidney condition.

  39. avatar
    G January 3, 2013 at 6:18 pm #

    Thank you. I look forward to that.

    1600Penn:
    May you all prosper and live long under Obamacare.