I suspect that it is no small source of personal pride to Leo Donofrio that a novel legal theory he put forward three years ago that US Presidents must have two US Citizen parents now has millions of followers, some even with false memories of having learned it in school (no Civics text with this theory has ever been found). Today Donofrio shares with Phil Berg the dubious distinction of providing the primary theoretical underpinning of the birther movement.
It appears that “being right” is a powerful motivator for Mr. Donofrio, and as a result he periodically revises history by scrubbing the content of his web site and starting over, erasing his prior mistakes and arguments refuted. He censors arguments pointing out his mistakes and so by carefully controlling the content of his site, he creates the false impression of consensus and even, dare we say, infallibility. His most recent web gambit is to only allow lawyers who publish their real names to comment on his blog.
Scrubbed image from Donofrio web site
United States v. Wong Kim Ark
Initially, Donofrio put forward the claim that the US Supreme Court erred in US v. Wong when they called the children of aliens natural born citizens. However, Donofrio sometimes puts forward theories hastily, and in this case too hastily; cracks quickly formed.
The first crack was the fact that President Chester A. Arthur had the same parentage situation as Barack Obama. The Arthur precedent was a devastating blow to Donofrio’s theory and he went into attack mode to divert attention from his big faux pas. Donofrio tries to rewrite American history by claiming that President Arthur wasn’t eligible either. Donofrio made all sorts of nonsensical arguments to smear Arthur and created a big lie: Arthur knew he was ineligible and tried to cover it up. Donofrio said that Arthur lied about his age to cover it up. (Revisionist birther history claims that Donofrio “discovered” that President Arthur was born a dual US/Irish citizen, but no less than US President Theodore Roosevelt mentioned Arthur’s Irish citizenship in 1916.) It is true that in one report Arthur made himself one year younger than he really was. However, that one year did not change the fact that his father was an Irish subject when Arthur was born (the elder Arthur not naturalizing for over a decade). Whether out of error or vanity, Arthur’s misstatement about his age doesn’t bear on eligibility. Donofrio then said that Arthur hid his ineligibility by burning his papers. Arthur did burn his papers after he left office, but that hardly covered up his status while he was running for office.
The second huge crack in Donofrio’s theory was the discovery of an 1844 New York case, Lynch v. Clarke, where in dicta Vice Chancellor Sandford commented that the children of aliens could be President:
By the common law, all persons born within the ligeance of the crown of England, were natural born subject, without reference to the status or condition of their parents…
The term citizen, was used in the constitution as a word, the meaning of which was already established and well understood. And the constitution itself contains a direct recognition of the subsisting common law principle, in the section which defines the qualification of the President. “No person except a natural born citizen, or a citizen of the United States at the time of the adoption of this constitution, shall be eligible to the office of President,” … The only standard which then existed, of a natural born citizen, was the rule of the common law, and no different standard has been adopted since. Suppose a person should be elected President who was native born, but of alien parents, could there be any reasonable doubt that he was eligible under the constitution? I think not.
Why would a New York lawyer like Chester A. Arthur believe that he was ineligible when his own state Chancery Court said otherwise? Obviously he wouldn’t.
The third huge crack came from the discovery that the English translation of Emerich de Vattel’s The Law of Nations that Donofrio relied upon for historical support for his definition of “natural born citizen” at the time of the writing of the US Constitution, did not exist in 1787, and that the contemporary translation did not contain that term.
To make himself seem to be a serious researcher, Donofrio published a picture of a book by A. P. Hinman, a contemporary of Arthur, named How a British Subject became President of the United States. The picture was probably from Google Books. However, it’s obvious that Donofrio had never seen or read the actual book because Hinman, who wrote the book to prove Arthur was ineligible because he was born in Canada, opened it by saying:
The Constitution of the United States requires that both the President and the Vice-President should be native born.
Even Arthur’s bitterest foe understood the equivalence of native and natural born. Other information in that book suggests that Hinman was fully aware of the naturalization of Arthur’s father after his birth, but did not consider that fact a bar to eligibility.
Continuing the diversionary attack, Donofrio then came up with the idea that the Supreme Court decision in US v. Wong was itself a cover-up for the fact that Arthur appointed the justice who wrote the opinion, supposedly with the idea that if Arthur wasn’t President, then Gray wasn’t chief justice. However, even without Gray, a solid majority of the court concurred with the opinion. Further, if as Donofrio argues, no one knew the naturalization status of Arthur’s father, then Justice Gray couldn’t have known it and could not have been influenced by it. The idea that Arthur told Gray on his deathbed the terrible secret is too fantastical to take seriously since there is nothing whatever to suggest that it’s true. (The link is to a new Donofrio article, but the smear on Gray goes back at least a year.)
Dual Citizen
Donofrio launched into another crank attack on Obama, trying to show that the President was today a dual citizen of the US and the UK, but again his hasty research did him in, not discovering that the section of the law he was relying on for UK citizenship had been repealed.
Conclusion
Donofrio puts forward theories, then covers them up with deletion. He makes claims and then creates fanciful historical narratives (that crack under examination) to support them. In the final analysis, Donofrio has no credentials as a constitutional expert. He is a lawyer, sometimes, but he lost his case trying to contest the 2008 election process. His success, however, is marked by the millions of people whom he misled into thinking he is something special.
He has made fools of you all.
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