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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.

Learn more:

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.

Continue Reading →

Donofrio files 209-page amicus brief in Georgia

Holy deforestation, Batman!

Just so you know, carbon credits are purchased to offset the electric power used to host this web site, so no trees are being harmed when I embed Donofrio’s 209-page amicus brief in the case of Farrar v. Obama (and others) below.

Donofrio argues that because Barack Obama’s father was not a US Citizen, nor someone who intended to stay in the United States, President Obama does not meet the definition of “natural born citizen” used in the Constitution.

I don’t know whether Judge Malihi or I will ever read the whole paper. I see right off the bat that Donofrio isn’t being honest in his recitation of the law, saying:

the Court [in Minor v. Happersett] identified, as natural-born citizens, only those who are born in the United States of citizen parents.

What is false is the placement of the word “only.” A more honest way to state it is: “the Court only identified, as natural-born citizens, those who are born in the United States of citizen parents.” The court explicitly stated that it wasn’t going to decide the status of the children of aliens. Donofrio says this case “defined” natural born citizen; associate Professor Joseph Hylton of Marquette University Law School wrote:

To cite Minor v. Happersett as the definitive statement of the meaning of the phrase “natural born citizen” is to exhibit an unfortunate lack of understanding of the Supreme Court’s 1874 decision in that case.

Continue Reading →

Donofrio has made fools of you all

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.

Wussy_scotuswuss1
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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