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Sibley/Vogt revive old crock about Fuddy taking a bribe

Birther memes are immortal

imageButterdezillion, the fervent viewer of Hawaii state documents, went off on a tizzy last Spring over Loretta Fuddy’s state ethics financial disclosure forms, questioning a $50,000 amount of money that mysteriously appeared (according to her). Actually, the money just moved from one place on the balance sheet into another. There was a thread at the Free Republic, and I had a wonderfully alliterative article: “Fault found with Fuddy’s financial facts–fraud?” debunking the whole nonsense (thanks to the expert analysis of Butterfly Bilderberg).

An article of the Birther Creed is the immortality of the meme, and that well-debunked misreading of financial statements has come back under the auspices of Sibley/Vogt and their formerly sealed affidavit in the Washington State case, In re: Douglas Vogt (aka Vogt v. Obama) now before the Supreme Court (for a few more days). Sibley is reported to have disclosed to talk radio host Erik Rush, and that up and coming smear merchant Nathan Bickel gives us the transcript of what Sibley said.

Sibley gives further evidence that “forensic” does not mean what birthers think it does, saying:

additionally there’s some forensic accounting investigation of Loretta Fuddy’s personal finances which resulted in a disclosure that she received a substantial – I believe she received a $50,000.00 dollars in cash shortly after she verified the Obama’s birth certificate as being legitimate.

Birther forensic accounting is no better than their forensic document analysis, i.e., abysmally inept.

High-class judge shopping

Funny how quickly yesterday’s big story fades. I gave quite a lot of attention to an action Douglas Vogt filed in Seattle federal court, trying to force a judge to empanel a grand jury and let Vogt present his unqualified image analysis to it. It was pretty exciting with it’s sealed affidavit and bread crumbs left all over Internet radio leading to his mystery Jane Doe forger of Obama’s birth certificate. In the end, it didn’t work. The judge dismissed whatever it was.

Vogt and his “not an attorney anymore” associate Montgomery Blair Sibley (Sibley left his name in document metadata)  appealed to the Ninth Circuit Court of Appeals for a Writ of Mandamus to force the court in Seattle to give him his grand jury. That was denied January 14, and the case closed. (Vogt filed a motion to reconsider in January 24).

Undaunted Vogt started mailing his big package-o-papers to 175 federal judges asking them for a grand jury. That’s some judge shopping list. Vogt tried to drum up excitement by publishing the heavily-redacted reply from one judge that he took to be favorable, but nothing must have come of it because…

Having failed with everything so far, Vogt is taking the ultimate step of going before the US Supreme Court (although his motion for reconsideration is still pending before the 9th Circuit), says Vogt in a letter to the Post & Email blog. In the copyrighted letter, dated today, Vogt asks for money, $800, to defray the cost of printing 40 copies and the filing fee. Is it just me, or is it weird that a successful businessman who owns a photocopier company is asking for money to make copies? OK, I expect there are special printing requirements and maybe it makes sense to let a professional in Supreme Court filings do the work, but $800 is not all that much money for big-time executives.

The Vogt Press Release says: “Douglas Vogt will be lodging with the United States Supreme Court this month the compelling forensic evidence contained in his 95 page public and 75 page sealed affidavits.” I don’t think Supreme Court Rules are going to let him submit 170 pages—not even close, but then I wonder if the Supreme Court ever got a petition like this one before.

In his begging letter Vogt mentions, but does not explain, some urgency in getting this to the Supreme Court now because 9th Circuit delays were making were going to make it too late to file with the Supreme Court. This presumably refers to his motion for reconsideration, so far still pending. There is a limited time (90 days) after denial by the circuit during which an appeal to the Supreme Court may be filed.

This all seems silly to me unless it’s a publicity stunt for Vogt’s upcoming book, “From Forgery to Treason.” Folks who donate $25 towards his expenses will get an autographed copy of the Supreme Court filing, but alas no book. Vogt has clearly gone around the bend describing the 9th Circuit as afraid of his case.

Read more:

Zullo v. Vogt

Cheese Food Package photoI can’t stand to listen to the stuff, except in small bits, so I’m relying on Birther Report for the story.

Apparently Mike Zullo appeared on the Carl Gallups Freedom Friday show today and announced proof: “IronClad And Can Never Be Refuted.” Well, that’s refreshing, because I am getting pretty tired of their usual stuff that comes clad in a wrapper labeled “imitation pasteurized process cheese food.”

Birthers don’t play well with others

Some factionalism appears among the birthers, according to BR:

Zullo also denounced Doug Vogt’s assertions regarding the purported Obama birth certificate forger

Vogt’s identification of the “forger” in sealed court papers, and unsealed lips on talk radio abetted by unredacted web posts from Orly Taitz, is of course pure nonsense (not to be confused with imitation process nonsense).

The conflict gets more serious when Vogt and Zullo contradict each the other in affidavits filed in court. Here’s Vogt first in his Seattle affidavit:

When a birth certificate comes in from a hospital or clinic, the registrar much check that there are no cross outs, all the fields have been filled out, the mother and doctor have both signed and dated the form using black indelible ink. The registrar then stamps the certificate with a date stamp and then uses a Bates numbering machine to print the unique certificate number on the upper right hand comer of the form. Finally the registrar signs the form.

We observe that Hawaiian birth certificates are signed all through the month, usually just a few days after birth, so by implication (according to Vogt) certificates are stamped all through the month. Now contrast what Vogt avers to Zullo’s version that appears in his own affidavit filed in the case of McInnish v. Chapman now before the Alabama Supreme Court:

The serial number shown on the image of the certificate, which purports on its face to have been imposed on the form with an automated sequential numbering stamp, is 61-10641. Investigators learned at that time, batches of birth certificates were collected monthly, ordered by date and time of birth, and then sequentially number-stamped in a special room by a single clerk trained for the purpose, to minimize numbering errors.

So which is it: numbering daily in order of registration, or numbering in birth order sequence in batches at the end of the month? Vogt appeals to his reading of Hawaiian law and federal regulations. Zullo claims an investigation. Which is right? Neither of them is right. The known certificates make it clear that the main sorting of the monthly batch is alphabetic (and possibly a high-level sort on birth facility before). The latest known August 1961 certificate has the lowest certificate number (and the child’s last name begins with “A”). In order to try to make Obama’s certificate appear out of order both Vogt and Zullo make up inconsistent stories, neither of which fits the facts.

Vogt loses, fails to get message

Whether it was a publicity stunt to promote his upcoming book (along with Paul Irey), From Forgery to Treason, or a sincere but profound misunderstanding of the law, Douglas Vogt filed a legal action in federal court that was dismissed. I covered the story extensively on this blog.

Vogt makes error

Before continuing with the progress of the legal action, I wanted to show the following screen shot from the book’s web site. The book is subtitled “Two Typographers Present their Proof of Forgery of Obama’s Long Form Birth Certificate.”

image

One would think that typographers advertising their book, a book relying on claims of typographical expertise, would be at least moderately careful to avoid typographical errors in their promotional material, but there it is writ large: “United Sates.”1

Vogt’s forgery claims are ludicrous, but so was his legal action, an attempt to force a court to declare him “not guilty” of a hypothetical future crime, and to use a civil filing in an attempt to compel a criminal prosecution. Judge Robart explained why the action was ludicrous in his Order to Show Cause.

Vogt makes another error

Nevertheless, it appears that Vogt is going to give it another go with the Ninth Circuit Court of Appeals, itself no stranger to birther lawsuits. I use the future tense because no appeal appears on the court docket as of this writing. Vogt’s appellate petition, a writ of mandamus, appears on the obamaforgerybook.com web site. So let’s examine the document:

image

That helps us sort matters out. The imaging crank is Douglas Vogt and the legal crank is Montgomery Blair Sibley (a former attorney).

Vogt’s petition demands the Court of Appeals direct Judge Robart to do the things he decided not to do for good reason when dismissing the action. Vogt repeats his claim that the district court clerk mischaracterized his action. Finally Vogt gives us his term it, “Miscellaneous matter.” Wow, that certainly makes it clear.

Vogt launches skyward calling the Judge’s characterization of his case as “intentional libel” and suggests that the captioning of his case as Vogt v. Obama in an order may be a felony. (The law cited doesn’t apply to captioning a case.)

For those giving odds as to who Vogt’s Jane Doe #2 is, we get this tantalizing sentence:

Coupled with the clear circumstantial evidence contained in Vogt’s sealed affidavit which links Barack Hussein Obama, II with the forger of his putative Certificates of Live Birth, the “public interest” in having these matters determined is overwhelming.

In any case, there are two important questions raised by the appeal:

  1. How long will it take the Ninth Circuit to affirm the lower court’s action
  2. Will the opinion be long or short?

1At least he didn’t say “United Snakes.”

Vogt dismissed

In a brief decision yesterday (14-Nov-2013), US District Judge James L. Robart dismissed the action styled In re: Douglas Vogt. Judge Robart said:

In his response, Mr. Vogt fails to provide a valid basis for this court’s exercise of  subject matter jurisdiction over his action.

Mr. Vogt fails to address any of the case authority cited by the court in its order to show cause indicating that (1) there is no private right of action under either 18 U.S.C. § 4 or 18 U.S.C. § 2382, (2) private parties  generally lack standing to institute a federal criminal prosecution, and (3) private citizens or voters, such as Mr. Vogt, lack standing to challenge President Obama’s qualifications to hold office through the use of misprision of felony or misprision of treason statutes, or otherwise, because they have suffered no particularized injury . (See generally OSC.) The court, therefore, concludes, consistent with the authorities cited in its prior order to show cause, that it lacks subject matter jurisdiction over Mr. Vogt’s action and DISMISSES this action in its entirety without prejudice.

Dismissal without prejudice gives Vogt leave to re-file the action under some different legal theory.

Commentary

What the court said was that Mr. Vogt was not individually harmed in any particular way by the things he alleged, not harmed any more than anyone else. This is why he doesn’t have individual standing to sue (even if there were a statute that he could sue under). When the public as a whole believes it is harmed, it is represented by the US Attorney, can petition Congress, and has the vote to change the government. The public could even amend the Constitution to create a new branch of the judiciary just to resolve arguments on the Internet.

What birthers fail to grasp is that consistency is a fundamental principle of our legal system. The courts apply the law uniformly across the country, and according to established precedent. One should never be "surprised" when they go to court. Judge Robart carefully explained to Vogt what the law was, and cited the precedents upon which he would base his decision. If Vogt went to another judge, or to a court of appeals, he will get the same result. (One would think that after 200+ losses in court, birthers would understand this.) It is not because Judge Robart is afraid, or that he is corrupt. He is simply applying the law to Vogt’s consistently and in the same way that any other federal judge would apply it to anyone else. If you order a Big Mac, you’re going to get two all-beef patties, special sauce, lettuce, cheese, pickles and onions on a sesame seed bun, and you can go to every McDonald’s restaurant in the country and it’s not going to change. Same with the federal courts.

My feeling is that Vogt isn’t going to file an appeal. First, Vogt claims that he didn’t file a lawsuit in the first place, so it would be rather odd to appeal something that wasn’t even a lawsuit. Second, Vogt is trying to get a judge to empanel a grand jury and that’s the judge’s personal decision about which an appeals court would have no say. If Vogt were to re-file as a real lawsuit, he would have to sue the judge to compel him empanel the grand jury, and we’ve already seen from the Judge’s Order to Show Cause that there is no legal authority for Vogt to compel a grand jury investigation.

What Vogt will probably do, and he has said as much on his web site, is to start mailing his papers to all 600+ plus federal judges asking/demanding that they convene a grand jury, but not filing something with the court.

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.