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Leo Donofrio: Natural born conspiracy theorist

I came across Leo C. Donofrio first in connection with his Obama and McCain eligibility lawsuit in New Jersey, Donofrio v. Wells. My short biographical page on him was published in December of 2008; there would be many more articles to follow. Donofrio is known famously, or perhaps infamously, as the inventor of a new meaning for the constitutional term “natural born citizen,” the proposition that US Presidents must be born in the country to two citizen parents.

Donofrio showed a conspiracist bent right from the first with his novel claim that US President Chester A. Arthur conspired to keep his father’s naturalization status  (Irish) a secret by lying about his age and burning his papers just before he died. In truth, his father’s nationality was known, but not widely discussed because that was before Donofrio came up with a theory where it mattered.

photo at right by Carlos De Deios © Filminco Productions 2011.) In addition to being a lawyer, a professional poker player and rock musician, Donofrio is also a filmmaker working under the pseudonym Jet Wintzer. To his credit is a film titled Towers, about a post apocalyptic world where most people have been destroyed by radiation from cell phone towers. Donofrio plays a survivor named “DJSpectacle” (photo at right by Carlos De Deios © Filminco Productions 2011). Donofrio’s other film credits include Colourfly (2012) and The Art of Forced Collaboration (2013).

Donofrio’s new film,  NASA NOT SOUND, according to its YouTube trailer, promotes the claim that Moon landing video footage from NASA is fake because one can hear sounds allegedly transmitted through the vacuum.

I have never decided in my own mind whether Donofrio believes any of the stuff, or if he is just trying to prove how smart he is by fooling other people.

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Donofrio’s early views on “natural born citizen”

I’m not breaking any new ground here because I am sure others have noticed this before me; however, I think it should be mentioned because those people who believe that only persons born in the United States to two US citizen parents claim that this view is not novel.

A commenter at Birther Report named “BornTexas” said recently that objections to Obama’s eligibility based on his non-citizen father were made before Barack Obama was nominated as the Democratic Party’s candidate in 2008.

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I challenged that assertion, and now 4 weeks later there has still been no response.1 It certainly seems that if there were any widespread belief in the two-citizen-parent theory, that someone would have raised the objection the moment Obama announced as a candidate.

In my reply to BornTexas, I noted that Leo C. Donofrio had written on his blog, NaturalBornCitizen, about the two-citizen-parent theory in December of 2008, the month the blog started.

When Donofrio wrote of it on December 19, 2008, he talked about Minor v. Happersett, and said that the Court “punted the issue.” Donofrio wrote:

For the purposes of Minor and Wong Kim Ark, the Supreme Court didn’t need to reach the “natural born citizen” issue as neither person was running for President, so they rightfully punted by limiting their holdings to the issue of  whether each person was a “citizen”….

Those “doubts” mentioned in Minor needed to be discussed and adjudicated by the current supreme court.

Shortly after, as we know, Donofrio was to assert that the Minor decision definitively defined natural born citizen, and even developed a conspiracy theory surround the first US President with a non-citizen father, Chester A. Arthur.

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Who’s the best of the birther attorneys?

I ask this seriously. Attorneys who have argued for the birther cause obviously vary in ability, although they are all equal in results so far on this particular topic1. I’m interested in your opinion as to which of the attorneys has the best legal skills, writes the best briefs, frames their arguments most logically, understands the law and cites on-point authority most effectively. Candidates are listed alphabetically (since the poll was published, Mark Hatfield and Stephen Pidgeon have been added at the end). The poll closes at midnight on June 5, Eastern US time.

Who's the best of the birther attorneys?

  • Gary Kreep (33%, 24 Votes)
  • Orly Taitz (25%, 18 Votes)
  • Phil Berg (10%, 7 Votes)
  • Leo Donofrio (8%, 6 Votes)
  • Larry Klayman (8%, 6 Votes)
  • Mario Apuzzo (7%, 5 Votes)
  • Mark Hatfield (4%, 3 Votes)
  • Van Irion (3%, 2 Votes)
  • Stephen Pidgeon (1%, 1 Votes)

Total Voters: 72

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If you want to explain your vote, please leave a comment. I would just ask, since this is a serious poll, that commenters not be insulting to our contestants.

For reference, here are some sample briefs from each entry. The name hyperlinks on the left refer to stories on this web site.


1To my knowledge, Larry Klayman has yet to receive his first decision in a birther case.

Leo Donofrio, then and now

It appears that Leo Donofrio has once again left the building. According to a comment on his blog, he has given up his license to practice law and moved on. Nevertheless, his legacy lives on in the minds of those Americans who now believe in the legal theory Donofrio invented in 2008, namely that US Presidents must be born in the United States to two citizen parents.

Thanks to the Internet Wayback Machine, we can look at early writings from Leo Donofrio. This one from December 19, 2008, caught my eye:

And so, as is so very clearly established by the supreme court in Minor and Wong Kim Ark1, there are now, and have always been, doubts about whether people born in the US to foreign parents are “natural born citizens”, or, as the Court in Minor discussed, whether such persons are even “citizens”.

To emphasize that, Donofrio graphically illustrated his point:

Scotus in "Wong Kim Ark" and "Minor V. Happersett" rightfully punted on "Natural born citizen" - Current Court purposely fumbled

Look at the headline: “SCOTUS … in ‘Minor v. Happersett’ … punted on ‘Natural Born Citizen.’”

Compare this to his 2012 Amicus brief  filed in Farrar v. Obama in Georgia, which birthers are filing with their ballot challenges today:

President Obama is not a natural-born citizen of the United States, as defined by the United States Supreme Court in Minor v. Happersett, 88 U.S. 162 (1874), wherein the Court identified, as natural-born citizens, only those who are born in the United States of citizen parents.

Mr. Donofrio clearly understood Minor v. Happersett in 2008. How did a doubt become an emphatic denial? How did “punted” become “defined?” Minor v. Happersett hasn’t changed. Donofrio didn’t go back to law school. What happened?

I’m trying to give up negative speculation about people for Lent.


1Given the willingness of courts (e.g. Georgia, Indiana and Virginia) to cite US v. Wong supporting Obama’s eligibility as President, I think that Donofrio is wrong here when he says that this case acknowledges ongoing doubt. In fact, it removed those doubts.

Donofrio’s “dirty little secret”

My title refers to an article on Leo Donofrio’s blog from January 27, titled: The Dirty “little” Secret Of The Natural Born Citizen Clause Revealed.

It’s one of those condescending “I’m a lawyer and you’re not” things that Donofrio is fond of.  In this case, Donofrio talks about the “code of statutory construction.” I’m a mathematician by training, not a lawyer, but we mathematicians are trained in logical argument and even I can see where Donofrio runs off the road and into the trees.

You can read his article, but I’ll include an excerpt here:

The code of statutory construction is learned by every student in law school, and every practicing attorney has confronted it. Every judge is required to apply the rule equally to all statutes, and the Constitution. There is no wiggle room at all. The rule states that when a court examines two clauses, unless Congress has made it clear that one clause repeals the other, the court must observe a separate legal effect for each. More specifically, regardless of the chronology of enactment, the general clause can never govern the specific.

That makes sense (whether it’s accurate or not I can’t say). However, Donofrio then gives two examples from the Constitution, the Article II qualifications of the President (he calls Clause A) and the 14th Amendment clause that those born in and under the jurisdiction of the United States are born citizens (Clause B). Even though these two are about different things, Donofrio labels the first “specific” and the second “general”. I’m not sure I want to jump on the bandwagon with that, but for the moment it can slide. What I can’t sign onto is when Donofrio comes up with the following non sequitur, like a magician pulling a rabbit out of a hat:

According to the rule of statutory construction, the court must determine that Clause A requires something more than Clause B.

Following on the magical theme, talk of smoke and mirrors is appropriate because by using placeholders “Clause A” and “Clause B” without their actual meaning, Donofrio obscures what he is actually saying. Let me show what’s behind the smoke by lowering the level of abstraction. This is what Donofrio would have us believe:

According to the rule of statutory construction, the court must determine that Clause A requires something more [of a natural born citizen]  than Clause B [requires of a natural born citizen].

Put like that, Donofrio’s argument is exposed as absurd because Clause B (the 14th Amendment) says nothing at all about natural born citizens.

A more reasonable application Donofrio’s general/specific duality is to label the general  class “citizens” (the actual subject of the 14th Amendment), those born or naturalized in the United States, and assign to the “specific” class natural born citizens, who must be born in the United States (not naturalized). That would be consistent with judicial history and the true subjects of the two clauses. Something more is required of a natural born citizen than just a citizen (i.e. birth).

Donofrio says that this is not rocket science. If it’s not, why did a federal district judge in Virginia just last month say that it is well settled that those born in the United States are “natural born citizens” in direct contradiction to Donofrio’s claim? Did Judge Gibney skip class when they talked about statutory construction? I think not.

And thereby the “dirty little secret” is revealed: Donofrio didn’t make a logical argument at all.

Update:

A number of attorneys have weighed in leaving comments on this article, and I recommend the reader look at those. They criticize Donofrio’s description of statutory construction being an inflexible requirement. That said, one needs no wiggle room in statutory construction in order to refute Donofrio’s argument (again).

Donofrio says “regardless of the chronology of enactment, the general clause can never govern the specific” and if we accept that statement, the general description of citizenship in the 14 Amendment cannot erase the meaning of “natural born citizen” that existed before, and the meaning that existed before doesn’t require that a natural born citizen have citizen parents. As Vice-Chancellor Sandford wrote in 1844:

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.

Update 2:

One commenter seems to think that lawyers should go over to Leo’s heavily-censored blog to debate him. The problem with that is that when you prove Leo is wrong, he won’t publish your comment.

Screenshot from Donorfio blog showing comment held in moderation

This comment, proving Leo misrepresented his sources, has never appeared.

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Out of the frying pan and into the Apuzzo

If we’ve learned anything over the past month, it is that there are varying degrees of crazy and that not all birthers are created equal.

imageEarly in the birther movement we saw the Great Schism between the Eastern Orthodox birthers, lead by the patriarch Philip Berg (those of Eastern faith believe Barack Obama was born in Kenya, but that if he had been born in the United States, then he was born a natural born citizen) and the Catholic birthers, known for their veneration of the Blessed Orly Taitz (BOT), who believe Obama was not a natural born citizen wherever he was born because his father was British. Pope Leo Donofrio is the spiritual father of this group and Mario Apuzzo heads the Congregation for the Doctrine of the Faith. The official split between the two groups was the Taitz v. Liberi lawsuit in which each side excommunicated the other and damned them to hell.

imageCorruption within the Catholic birther movement has led some to question the infallibility of its leadership. These so-called Protestant Birthers are led by the reformer Dean Haskins. Haskins broke with the Catholic birthers through his heterodox refusal to venerate the BOT. Haskins has used a historical-critical methodology to show why the veneration of Taitz is against the long-term interests of the faith.

While I can describe these denominational categories and perhaps some will find them useful, the birther sheep in the flock may not clearly discern the divisions, and may remain in a state of internal self contradiction.

This brings me to the instance of David Farrar. The BOT is, after all, his attorney, a most sacred institutional attachment. Nevertheless, it appears that Farrar was appalled at the letter Taitz wrote (ostensibly on his behalf) to the Georgia Secretary of State, a letter making a scurrilous attack against a Georgia Judge.

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