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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.

Forensically speaking

I was reading Douglas Vogt’s petition to the Supreme Court and noticed this sentence (presumably ghost-written by Montgomery Blair Sibley).

Attached to the Notice of Commission was Vogt’s publicly-available, 95 page affidavit in which he demonstrated forensically the existence of twenty (20) separate points of forgery in the Certificate of Live Birth (“COLB”) of Barack Hussein Obama, II (“Obama”).

Forensics is a science, the scientific method of gathering and examining information about the past, a discipline that to my knowledge Vogt has never practiced nor received training in. Vogt’s affidavit doesn’t cite any published works on forensic science, nor does he allude to having any background whatsoever in questioned document examination. He is a self-made expert. Indeed Vogt expresses disdain for the forensic certification, characterizing it as meaningless at Birther Report:

Paul Irey and myself have over 83 years experience in the graphics/type and scanner business. A forensic document examiner takes a course over the internet, pays $800 and 98% of them pass and get the certificate. I had to send my chapter on evidence of computer manipulation to the Arizona Sheriffs office who sent it to Reed Hayes so he would learn more about Photoshop and how Adobe created the JBIG2 compression layer. He did not know it. He is a hand writing expert and worse yet he only worked from the PDF copy that there was no chain of custody. He is NOT an expert on type and what Paul and I covered in my affidavits.

It serves Vogt’s purpose to make sweeping generalized aspersions about document examiners and their qualifications, because Vogt himself has no such qualifications. It is true that there are forensic certification diploma mills, but the organization certifying Reed Hayes is not one of them, nor is the American Board of Forensic Document Examiners that requires, for example, an undergraduate degree plus two years of full-time training at an accredited forensic laboratory and current employment in the field, and in order to apply to take oral, written and practical certification tests, must provide references from three certified examiners. In short, Douglas Vogt could not become ABFDE certified.

Vogt himself seems to have been completely unaware of JBIG2 compression until the anti-birthers told him about it (it is completely absent from his earlier reports) and he certainly has no “chain of custody” associated with his puttering around. Given that Obama’s birth certificate appears to the first document Vogt has ever examined “forensically,” I would think it fair to call him a “beginner” rather than an “expert.”

The reason that Vogt is not an expert, and the reason he is not qualified to make the claims he does is:

  • Vogt uses no recognized methodology: he makes it up as he goes along
  • Vogt cites no recognized authority
  • Vogt doesn’t look at evidence objectively, discarding, for example, any published birth certificate that contradicts his numbering theories
  • Vogt freely misrepresents regulations and statutes to try to prove false statements.
  • Vogt has no prior experience in examining forgeries.
  • Vogt has never even taken so much as a single course in forensic document science.

Judge Malihi, an administrative law judge in Georgia, summed it up in his decision in the case of Farrar v. Obama, speaking of Douglas Vogt and Felicito Papa:

neither witness was properly qualified or tendered as an expert in birth records, forged documents or document manipulation

As for Paul Irey, he said that he was certain Obama’s birth certificate was fake before he looked at and was just trying to justify that belief–he lacks scientific objectivity. Here’s a section from the transcript of Irey’s appearance on Reality Check Radio:

Irey: … I started to study it, knowing it had to be a forgery, and just looking for what I could find.
Foggy: You knew it was a forgery before you started studying it?…
Irey: Yes, yes. I knew it was a forgery.
Foggy: How’d you know that?
Irey: I had information from a government worker who had a friend at one of the agencies who come back to me after we had a big debate during the time Obama had been, uh, announced for office [inaudible] legitimacy, where’s the birth certificate? We were talking about that way back when, and he debated with me. Went down to his agency and advised me that, uh, that I was right basically. That there was no birth certificate in the records. But his agency was not going to, uh, do anything about it more or less. So I kind of went in with his background. It sort of converted his attitude. I could tell how his attitude changed after that, because he was no longer supporting Obama. I was supporting Colin Powell….
Foggy: I’m not asking you to identify the guy, but can you tell us like what agency? Was it an intelligency agency? I mean can you give us a hint?
Irey: Yes, I can. It was the Secret Service.
Foggy: OK
Irey: As you know, the Secret Service is, one of their responsibilities is to vet. …

Of course, the Secret Service doesn’t vet presidential candidates, and there is no reason that they would have a birth certificate in their files for any of them.

Irey’s analysis consists primarily of blown up copies of typewritten text. Irey claims 57 years experience in typesetting, but nothing in his report is about typesetting; it is about typewriters, and Irey describes his typewriter experience as: I’m also four years experience in typing with a typewriter (Taitz v. Elections Commission testimony). Irey also says that he used Photoshop from the beginning, but the best Irey could hope to  do with such expertise would be to show that the White House PDF could have been created by Photoshop, not that it wasn’t created by something else, like a Xerox WorkCentre 7655. (I should add that no birther has ever produced a fake birth certificate using Photoshop that has all of the characteristics of Obama’s certificate.) Irey has no experience with the electronic format of a PDF so as to find any unique signature of Photoshop.

Vogt’s Supreme Court petition will be denied.

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 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.”

Help us Mitt Romney; you’re our only hope

This article is in my “only hope” series:

Yes, once again a birther puts forward a vain hope to dislodge the President through legal action, this time in the person of Montgomery Blair Sibley. The occasion is the rejection of his appeal to the United States Court of Appeals for the District of Columbia in his case Sibley v. Obama. The Court declined to delve into the matter Sibley raised, saying as so many courts before have said (going all the way back to Phil Berg’s 2008 case), the birther lacks standing, and in this case: Sibley’s “‘self declaration as a write-in candidate’ does not confer Article III standing….”

The inference drawn by Sibley is that Mitt Romney, who was in every sense a real candidate with a specific personal stake in the outcome of the 2012 election, does have standing. So Sibley has issued a public letter to Mitt Romney (which saves him the 46 cents for a postage stamp I guess), putting forward various conspiracy theories about Barack Obama, saying that the federal judiciary has failed in their duty, and asking for a 30 minute interview with Romney in which to present his case. (I thought folks were only allotted 15 minutes of fame.)

There are several problems with Sibley’s scenario. Individual harm from the outcome of the election does not alone confer standing on a candidate; a further requirement is that the court have the power to redress the alleged wrong and no court has the power to remove the President; only the Congress may do that. Romney has more sense than to get involved with birther nuttery anyway and finally, Obama is eligible in the first place, something that is well established, fully certified, and plainly obvious to everyone except the birthers.

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