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Have birthers found their one honest judge?

I’m still waiting to find one honest birther

Douglas Vogt filed something with the US District Court in Seattle, trying to force the judge to refer Vogt’s birther allegations to a grand jury. The Court responded that a civil lawsuit cannot be used to initiate a criminal case. The Court of Appeals agreed. Birthers have failed in every one of their more than 200 legal actions, and sometimes they (including Vogt) blame the judge, rather than their own ineptitude, and lack of a valid legal claim. It is the nature of a crank to disrespect authority (or else they wouldn’t be cranks in the first place).

Federal judges can refer matters to a grand jury for investigation, and I along with others wondered why Vogt didn’t just write the judge a letter rather than waste the resources of the Court by filing it formally. What I did not envision was what happened next: Vogt sent letters and 170 pages of crank forensic document stuff to 175 federal judges (their original list had 625)!

My reaction to the results is “the glass is mostly empty” as only 3 judges even bothered to reply, two of whom said they would pass the documentation on to the US Attorney, who normally runs federal grand juries. One judge, however, reportedly responded with something that put some birther hearts all aflutter:

“I was very impressed by the letter and attachments you sent to me. I do not dismiss the allegations you make as untrue.”

One of my pet peeves with US English grammar is the placement of the period in relation to quotation marks: The period always goes inside and so we do not know whether there is a period in the original at that point or not. Here’s the redacted image from Montgomery Blair Sibley, Vogt’s legal ghost writer (Sibley was disbarred and cannot actually represent Vogt):

Heavily redacted letter

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Vogt to Judge: your order is a non-sequitur

Douglas Vogt filed something with the US District Court in Seattle, and asked that it be assigned a case number. Judge Robart issued an order to show cause why the case shouldn’t be dismissed for lack of subject matter jurisdiction. Yesterday, in an answer to the Judge’s order, Vogt claims that what he filed isn’t a case after all.

Well, we all knew that. Even though not invoking the jurisdiction of the court, somehow Vogt thinks that the Court is “bound” by something—he mentions the Ninth and Tenth Amendments which talk about rights retained by the states and the people, and don’t mention courts. Specifically, Vogt demands a statement from the Court that he is discharged from any obligation to report his bogus felony and treason charges, and he demands that the Court convene a grand jury to investigate those charges. As birther plaintiffs have done in the past, Vogt invokes a duty, but never shows how any law imposes it.

Judge Robart in his order to show cause made it abundantly clear that the law does not allow private citizens to compel a criminal prosecution, a point lost on Vogt (and his ghost-writing legal helper reported to be Montgomery Blair Sibley).

As for discharging Vogt of his imagined legal obligation to report a felony, the court papers he filed are ample evidence that he reported what he reported. The Court is under no obligation, nor I think does it have jurisdiction to make such a declaration as to the innocence of Vogt in some hypothetical future prosecution. It reminds me of the lawsuit where Steven Lee Craig wanted the court to declare him a natural born citizen. In that case the Tenth Circuit Court of Appeals affirmed the dismissal of Craig v. United States on jurisdictional grounds. Just as Craig had no legally cognizable right to be declared a natural born citizen, Vogt has no cognizable right to be declared discharged from his obligations under the Misprision statutes, nor to have a grand jury convened as the result of his filing with the Court.

Vogt cites the Federal Rules of Criminal Procedure Rule 6(a) that requires a grand jury to be summoned in the public interest, but it is the Court that decides what is in the public interest, and not Douglas Vogt. Vogt makes a whiny rant about how important his crank claims are, and how the deck is stacked in favor of the government in the age of an emasculated grand jury system and how the Court is the last hope to save America from the usurper.

Vogt’s Answer extends the claim that the Court has an obligation to refer the matter to a grand jury to say that the Court is also obligated to appoint an independent counsel to guide the grand jury. While there is authority under US law for the appointment of an independent counsel by the judiciary, such as mentioned in 28 USC § 592-3, application for an independent counsel is made by the Attorney General, not a private citizen. And here we get back to a central defect of Vogt’s action—he is a private citizen, not a prosecutor.

So with this Answer filed, we may await the court’s scholarly refutation, which will probably not use the term “whiny” as I did. The duty of the federal courts in this case, as stated in Fed. R. Civ. P. 12(h)(3), is: “If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.”

The opinions expressed in this article should not be considered legal advice. I am not a lawyer.

Update:

The case was dismissed without prejudice for lack of subject matter jurisdiction on November 14.

Judge shopping

Christmas PackagesIt’s just 46 shopping days until Christmas. Have you picked out that special federal judge for that special someone?

There have been over 200 lawsuits filed against Barack Obama’s eligibility to be President. Almost all have been lost. Just a few are still in the courts, and a few losses are still being appealed. Still it’s a pretty dismal picture. Some of the judges have distinguished themselves with pithy sayings like DC Federal District Judge James Robinson, memorably writing:

The issue of the President’s citizenship was raised, vetted, blogged, texted, twittered, and otherwise massaged by America’s vigilant citizenry during Mr. Obama’s two-year-campaign for the presidency, but this plaintiff wants it resolved by a court.

or the unforgettable reply to Orly Taitz from Judge Clay D. Land in Georgia (Rhodes v. MacDonald):

Unlike in Alice in Wonderland, simply saying something is so does not make it so

Others provide a mini legal education for those who choose to learn, like Judge R. Barclay Surrick’s scholarly explanation of standing in Berg v. Obama.

Judges have striven mightily to make sense of the tangled prose submitted by pro se birther plaintiffs and sometimes by their incompetent attorneys. They do our court system credit.

Most recently was the case of In Re: Douglas Vogt where Vogt filed a lawsuit to try to get a federal judge to convene a grand jury to investigate Barack Obama’s birth certificate, when the FBI and the US Attorney refused him. Seattle judge Robart has issued an order to show cause why he should not dismiss Vogt’s action, an order with no hint of sympathy for Vogt’s cause (sometimes a judge will suggest ways to fix a pleading, but not here). So we can expect within a month or so to see this thing dismissed.

So are we soon to be rid of Vogt’s gambit? Perhaps not. The legal brain (using the term loosely) behind the Vogt legal essay appears to be Montgomery Blair Sibley, a former attorney who has filed several birther cases on his own without success. Sibley, writing at Birther Report:

Thus there remains only 625 people – the judges of the federal district courts – that have the authority to call a Grand Jury to hear the allegations of Obama’s ineligibility. The first to receive that plea or – poetically, volley – in this, the last legal battle to be waged over Obama’s eligibility is Judge James L. Robart of the U.S. District Court for the Western District of Washington.

The key word there is “first,” implying that if one judge refuses, then there are plenty more to submit lengthy computer files of nonsense to. I think Vogt opens himself up to sanctions if he files the same thing over and over again in different courts. Word will get around what he and Sibley are trying to do.

Update: Vogt indeed suggests that he does intend to send his file to all of the judges. On his ObamaForgeryBook web site, he writes:

If the judge in Seattle does not act as he should we intend to mail the complaint to other Judges around the county until we find one Federal Judge that sees what Barack Obama is doing to the country and also wants to get him legally out of office before he destroys the country and turns it into a socialist hell. So if you can contribute to our ends please do so. It will cost $26 to mail the complete filing in color to a Federal Judge. There are over 600 Judges.

Since he does not mention the $350 filing fee, it appears that these will not be filed as lawsuits.

Even if they found a judge who is, along with his staff, so technically incompetent as to think Vogt’s claims are worthy of investigation, there still remain two other insurmountable barriers. Sibley himself admits that no US Attorney is going to act on his claims, and without the consent of the US Attorney, a grand jury cannot issue an indictment and their internal deliberations are by law secret. Even if he convinced a grand jury, no one would ever know. And even if Sibley miraculously got the sign-off from a US Attorney, there is one more insurmountable hurdle: grand juries cannot indict the President while still in office. Impeachment is the only route, and that’s not going to happen either.

So given that the whole scenario is impossible, why do it? I guess it comes from the craving of all derided conspiracy theorists—to have their day in court and to be judged “not crazy.”

Birther blogger Chalice Jackson petitions Illinois grand jury

As reported in today’s Northwest Herald, Internet blogger Sharon Meroni (aka Chalice Jackson) filed an emergency petition before the McHenry County Illinois Grand Jury.

Meroni alleges “rampant voter fraud” in the Feb. 5, 2008, and Nov. 4, 2008, elections. The petition does not mention Obama or his birth certificate specifically. But outside of court, Meroni told Northwest Herald reporter Jillian Duchnowski that her action indeed centered on Obama’s citizenship.

How to form a grand jury… O’rly?

Orly Taitz

Orly Taitz

I found the following cookbook for “How to Form a Grand Jury” over at Orly Taitz’s foundation, DefendOurFreedoms.org. One can readily see that they are making up the rules as they go along:

1. How to form a Grand Jury:

a. Regulations, authority, citations, legal requirements;
b. Who can call one? (any U.S. citizen? Registered voter? Criminal record excluded? Relationships with those being charged?, etc.)
c. Number of members required, and backups (25, ?); Simple majority for a Presentment/Indictment ?
d. How and to whom to announce the formation of the Grand Jury; method of public notification?
e. Terms to be used: Presentments? Charges? Accusations? Indictments? Continue Reading →