Understanding the law as it is vs. living in denial (Orly Taitz & Gary Kreep before the Ninth Circuit)

If elected to the United States Senate, I will fight for the enactment of laws which restore power to the people and diminish the power of the United States Government at every possible turn and in every possible way.  I will seek to reform the judiciary, by the abolition of judicial immunity, but also by seeking Congressional override of the cases and rules which have all but closed the Federal Courts to the people of the United States with regard to any questions of real importance.  I have learned by trial-and-error, quite literally, that the judicial system and the laws of the United States now support an oligarchy rather than a democratic-republic, and that in doing so they support what Dwight D. Eisenhower christened the “Military-Industrial Complex”, except that the only industry really left in the United States now is the manufacture of nearly worthless money through “credit” backed only by the bullying threats of the United States Military-Industrial Complex, which has since the end of World War II engaged in a nearly perfect Orwellian constant, continuous war against enemies whose identities are constantly shifting.  At the end of 1984, of course, Winston Smith, aka “6079 Smith W”, “had won the victory over himself. He loved Big Brother”.   It was that love of Big Brother which shaped the world which Aldous Huxley had portrayed in Brave New World, published 18 years before Orwell’s 1984, and it is something very much like Winston’s love of Big Brother which seems to dominate the American media and popular culture lifestyle all over America today.  I, for one, do not love Big Brother or anyone who loves him, although I might forgive and try to educate some of the latter.

To that end I will tell you that even many of those who call themselves Patriots live just as much in denial as Winston Smith did at the end of 1984: they believe that the law is on their side, and that if they just keep trying, they can make a silk purse out of a sow’s ear, and restore democratic values in America without wiping the slate virtually clean.  I demur.  I have been involved in many causes over the past twenty years, some more catastrophic than others.  The only consistent “winner” in this fight I know is among the most modest of leaders, with among the most modest of goals, namely former State Senator and now State Representative Jerry O’Neil of Kalispell, Montana, who lives in the beautiful shadow of the Continental Divide and Glacier National Park.   But I have spent all too much time with one of the most consistent “losers” in the game—and so it was

With more than a little curiosity I tuned in to watch Orly Taitz & Gary Kreep “do their best” before the Ninth Circuit Court of Appeals on May 2, 2011, in Pasadena.  http://www.youtube.com/watch?v=hBLA2NdQZoM.  There are many personal, professional, and political reasons for my interest.  As is fairly well known, I had worked with Orly, been represented by Gary against Orly, and long before either of those experiences, I knew the Courtroom because I had worked with Judge Harry Pregerson, as well as Judge Alex Kozinski whenever they sat in Pasadena, during my first actual job in law which was a judicial extern for Judge Stephen Reinhardt of the Ninth Circuit Court of Appeals*.  I found the Judges of the Ninth Circuit very high minded and informal to deal with, whether liberal or conservative—even as a humble extern I was invited separately to the homes of Judges Pregerson and Reinhardt (even met Dean Pregerson before he was a U.S. District Judge—I always cannot help but wonder whether Dad still “reviews” his son’s homework—or does dad recuse himself from any appeals from his sons’ cases).

But I also found the subject matter of the Obama eligibility case interesting in 2009, while I was in fact working on it, and my interest has not much diminished, nor has my concern that this country rapidly is going to the dogs.

The arguments of counsel disappointed but did not surprise me.  What disappointed me most was that neither Gary nor Orly gave even a single reason which would have convinced me (if I were still an extern working on the case for one of the Judges) why the Court of Appeals should have granted the Plaintiff’s motion to reverse Judge Carter (when I could have thought of at least a few).

Among the greatest mysteries of 2009 (to me at least) is why Orly failed or refused (I think it was refused) just really and carefully to read Judge Carter’s Order of dismissal.  Because the truth is that Judge Carter’s order was about as positive and a wonderful order as an order granting a Motion to Dismiss could possibly be for a Plaintiff.  Carter gave us a very well-thought out roadmap of how to restructure the complaint, which had been cobbled together EXTREMELY quickly because of Orly’s paranoia—or her very genuine desire and determination to lose the case.

And yes, I still believe that Judge Carter was initially very favorably disposed to the case and very willing to tolerate Orly’s psychologically unfathomable behavior in and relating to Court.  Or at least I believe that Judge Carter was favorably disposed while I was working with Orly to temper her madness—before and until Orly backed Carter into a corner and forced him to clarify his original order of dismissal was WITH prejudice.

Orly was just determined to throw the case. I remain convinced of it.   She was determined to make a hash out of everything she touched so that she could either (a) do what she was planning to do, to destroy the eligibility movement or (b) achieve status as a martyr in her own mind, an enigma in her own time.  Orly never listened to a thing I said or suggested about the case or litigation strategy 99% of the time, but under the rules, a district court order of dismissal not accompanied by a final judgment of dismissal under Rule 58 is always presumed to be without when it is not specified to be with prejudice, or some other rule or circumstance requires such a determination.   I told Orly—and she didn’t care or didn’t listen—or her “orders” were that she not listen.  And so she ranted and raved that Judge Carter was a traitor and that some pimply-faced fresh lawclerk from Perkins Coie was an Obot planted by the President of the United States in Judge Carter’s Court to give the Judge instructions and orders on what to do and how to do it.

If Orly had really wanted even to have a chance to win—she would have listened to me and just carefully reworked the Barnett et al. Complaint—and followed Judge Carter’s instructions—and I think we could have—and either we might have made it to discovery and at least a Motion for Summary Judgment or else the appeal of this case would have been quite different—“if things had been different, well, things would have been different.”

But as it was, the sole question before the Court was whether the Plaintiff’s had injury standing to bring suit.  Gary Kreep all but totally conceded the repeated question that the case was filed too late for his (former client) candidates to have any special standing, and Orly Taitz simply wasted her time saying less than nothing pertinent, trying instead to make an issue of the President’s April 27, 2011 release of a document which was not and because of its timing could not possibly be before the Court of Appeals.

Accordingly, I submit that the ideas I framed and drafted as Orly’s lawclerk were the best in the case (and if elected to the United States Senate I promise to push for the enactment of laws enshrining these ideas as litigation rights in the United States Code): that the unique circumstances of the Presidential eligibility before Court more closely resembled Flast v. Cohen taxpayer standing than anything else, in that if taxpayers were not afforded standing to object, then certain clauses of the constitution (among them Article II, Section 1, and the establishment clause of the First Amendment) are left without any advocates for judicial remedy whatsoever, and the Constitution was written to constitute a document of “fundamental law,” not just a series of non-binding resolutions to be followed at political convenience or discretion.

Had I been able to appear before the Ninth Circuit, I would have argued for taxpayer standing together with my firmly held belief that the Constitution expressly grants First Amendment standing to petition the Courts for redress of any and all grievances, and that the Ninth Amendment reservation of rights also accords similar standing to petition for redress of any and all grievances.  The second best line of argument presented to Judge Carter was that concerning the obligation and remedies available to those who took specific oaths to uphold the Constitution of the United States, especially Military Officers.

All these issues were before the Court, because I drafted documents which put them before Judge Carter, although he largely ignored them, yet Orly and Gary did not pick up on these details at all.  It is almost as if, in particular Orly, really wanted to lose.

Orly had failed to develop any of the ideas of Flast v. Cohen taxpayer standing or First or Ninth Amendment Standing before Judge Carter—before or after she accused him of treason (which I would like to make very clear I repeatedly counseled her NOT to do) and she did not even mention them in her oral argument.  The Court of Appeals Judges had little or nothing to say to Orly or ask her.  They probably knew anything they said would have just encouraged her.  My collaboration with Orly has caused a lot of problems in my life.  That’s still a story that hasn’t been completely told and this is not the place to tell it.

So, just for the historical record, or for a partly egotistical, partly altruistic, attempt to salvage some of the ideas and pass them on for future use in other cases, I attach the two documents I consider to be the “best” of all Orly’s filings in connection with the question of whether Barack Hussein Obama should occupy the White House or not, and yes, I did have something to do with their creation while I was overlooking the Pacific from Suite 4 of the Casa del Mar in San Clemente.  It was a pleasant place where I spent five-and-a-half-to-six of the most pleasant months of my recent life, only five-and-a-half-to-six weeks of which were spent in the professional and personal company of Orly Taitz.   What can I say—I kind of wish she had stayed and been a sane person, but then she just wouldn’t be Orly I guess.   We could have done a lot of things, and had a lot of worthwhile projects and case number 09-cv-00082-DOC was not even close to the most important of the projects we needed to do—although it was the most famous and the only one Orly ever cared about.

The documents in question to which I refer here are:

09-cv-00082-DOC – Flast v Cohen

09-cv-00082-DOC Motion for Leave to File Surreply

09-cv-00082-DOC – Plaintiffs’ Sur-Reply 10-01-09

(*There being no such things as judicial “interns” in the Ninth Circuit or CDCA, the job description for a “judicial extern” still  sounds to most folks very much like an “internship”, and J.D. students compete for these positions much in the manner that J.D. recipients compete for post-J.D. “judicial clerkships”)

2 responses to “Understanding the law as it is vs. living in denial (Orly Taitz & Gary Kreep before the Ninth Circuit)

  1. Pingback: On Open Courts, the Right to Petition and Obtain Declaratory Judgment, and Separation of Powers | TIERRA LIMPIA by Charles Lincoln

  2. Thank you for writing this blog report regarding 09-cv-00082-DOC. I’m posting a link on my youtube forum so that others might read it as well.

    Btw, have you seen my most recent youtube video:

    “Lucas Daniel Smith and the Obama Kenyan Birth Certificate”

    The video can also be viewed at my personal website:


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