I’ve seen some disparaging remarks from the attorneys that post here and elsewhere about the response to the Order to Show Cause in the case of Kerchner v Obama filed by Mario Apuzzo. With all due respect to these learned persons, I think Apuzzo’s response was masterfully done and I think that these critical attorneys just say what they do because they think like lawyers. To fully appreciate what Mr. Apuzzo has accomplished with his argument and his cases, it’s necessary do a little thinking outside of the box (or perhaps beyond the bar).
Appreciation of the response requires review of the background in the Kerchner case which is hardly an ordinary lawsuit. I wrote about Apuzzo’s second amended complaint in a series of articles, Kerchner v. Obama and the WHOLE COUNTRY and Kerchner v. Obama and the WHOLE COUNTRY, Part 2. Carving up the allegations in that complaint was like the proverbial hot knife through butter. It should have been obvious to any competent attorney, and any layman who paid close attention, that the lawsuit from a legal perspective was dead on arrival, but Kerchner was not about winning; Kerchner was a public relations gambit as evidenced by the coordinated half-page newspaper ads in the Washington Times. The Kerchner lawsuit added a patina of respectability to the otherwise tawdry conspiracy theories and anti-Obama rumors. Suddenly what was just blogs and emails became a lawsuit heard in federal court.
Someone thinking like a lawyer would not have filed Kerchner v Obama in the first place, much less appealed it given the rejection of an almost identical appeal in Berg v Obama, but appreciate how silly concerns become weighty concerns when they are argued before a federal appeals court.
This brings us to Mr. Apuzzo’s latest response. The attorneys commenting on it are understandably offended because of the sloppy proofreading, the failure to understand basic legal principles, and the misapplication of cases that makes their profession look bad. What is important to realize is that federal judges will be offended too that they have to suffer through this sloppily-done and overly-long filing. An offended federal appellate judge runs the risk of making some snide remark to kindle the rage of the Obama denialist masses, akin to the infamous comment from Judge James Robertson in Hollister v. Soetoro:
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.
Judge James Robertson
The lay person sees an impenetrable mass of cases and conclusions, assuming that if it is that long, it must be conclusive, and indeed we have seen commenters here support that view. By questioning the principle of standing itself, and suggesting that the courts may be applying it in an arbitrary manner, the dismissal of all 70 of the Obama denialist lawsuits is called into question.
Finally, Apuzzo makes some pleas for what to the lay person sound like reasonable requests to mitigate the amount of his damages by asking for just a little bit of discovery so that the defendants won’t be able to mean-spiritedly “stick it to him.” The appeals court will have none of any of this and will assess damages and costs, and perhaps since Apuzzo has been so utterly devoid of remorse, they will make an example of him. What could be better publicity for the denialist cause, and what would generate more sympathy (and monetary donations) from the faithful, than for the appeals court to hit Apuzzo with anything but the bare minimum damages. Of course, the denialists will ultimately blame the victim, Barack Obama for any indignity Apuzzo suffers, and ultimately they will be the ones who pay the damages through their PayPal donations.
I don’t see how this could have been played any better given the lack of any honest cause of action in the first place.
The appeals court has ruled, and it has adjudged that although there is no grounds for it to reconsider it’s ruling in the Kerchner case, it found that Apuzzo had actually researched standing enough to get him off the hook for frivolity. By the lights of my article, then, Apuzzo has failed miserably as a martyr.