Friday, November 20, 2020

I Really Didn’t Want To File Suit To Remove A Federal Judge From Office . . .

The Honorable Frank Geraci, Jr.
As I have documented in prior posts, I have been challenging New York’s Handgun licensing scheme in both State and Federal Courts for the last eight hundred and fifty six (856) days. That effort continues at the speed of treacle: New York has been directed to file its Answer Briefs in the State cases in early January 2021. The Federal case is still in the motion to dismiss phase which will linger on into 2021 as well.

What I have not made public is that I found myself faced with a choice back in May of this year whether to sue the federal judge handling my federal Second Amendment case ‒ the Honorable Frank Geraci ‒ to remove him for “misbehaviour” in office. Family and friends will tell you I never shied away from filing a lawsuit when I believe the cause was just, so you can imagine my choice.  What was the “misbehaviour” of a federal judge which might authorize removal from office?  That is a complicated question requiring context of a completely un-illuminated clause in the Federal Constitution.  So let me start there:

It was the common law of the United States that existed before the federal Constitution was ratified in June 1788 – and subsequently and expressly reserved to the People by the Ninth Amendment in 1791 – that there were three grounds for forfeiture of a judicial office: (i) abuse of office, (ii) non-use of office, and (iii) refusal to exercise an office.

The U.S. Constitution at Article III, §1 states in pertinent part: “The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour . . .”.  Ergo, an inferior District Court Judge  ‒ such as the Honorable Frank Geraci ‒ may be removed from office for the antithesis of “good behavior”, i.e., “misbehavior”.

Importantly, the Ninth Amendment states: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”  I maintained in my Complaint against the Honorable Frank Geraci that among those rights “retained by the people” was the right in a judicial proceeding to remove judicial actors for “misbehaviour”.

Clearly, the Constitution delegates to the Legislative Branch only the right to remove “civil officers” – which necessarily includes District Court Judges – in only very limited circumstances.  Article I, §2 states: “The House of Representatives . . . shall have the sole power of impeachment.”  Article I, §4 states: “The President, Vice President and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.”  Ergo, Congress can only remove a civil officer  ‒ such as the Honorable Frank Geraci ‒ upon an impeachment and conviction in only three instances: (i) "treason", (ii) "bribery", or (iii) other "high crimes and misdemeanors".  A priori, Congress cannot remove a civil officer for “misbehavior” that does not rise to the level of: ((i) "treason", (ii) "bribery", or (iii) other "high crimes and misdemeanors" as such power was never granted – and indeed was expressly prohibited – to Congress.

A fortiori, there must exist a range of judicial behavior which is not: (i) “treason”, (ii) “bribery”, or (iii) other “high crime and misdemeanor” but that does constitution “misbehavior” sufficient to breach the “good behavior” requirement  of  Article III, §1 for holding judicial office.

Let me put this proposition graphically:

Against that brief legal backdrop, on to the particular facts of Sibley v. Geraci, et al.:

On July 9, 2019, I filed my Second Amendment lawsuit challenging New York’s Handgun licencing scheme in federal court in Rochester, New York.  At the same time, I also filed a Motion for Leave to proceed in forma pauperis. The Motion for Leave to proceed in forma pauperis asked the Court to waive the $400 filing fee which is required to file a federal lawsuit.  The Honorable Frank Geraci was assigned the case.

After waiting for seventy-nine (79) days, on September 26, 2019, as it was apparent to me that the Honorable Frank Geraci was not going to rule upon my Motion for Leave to proceed in forma pauperis, I, as my work had picked up, was able to tender the filing fee of $400.00 which finally allowed the case to move forward.

The U.S. Supreme Court has left no doubt that access to court is a fundamental right and is also guaranteed by the U.S. Constitution in five different areas: (i) The Article IV Privileges and Immunities Clause, (ii) The First Amendment Petition Clause, (iii) The Fifth Amendment Due Process Clause, (iv) The Fourteenth Amendment Equal Protection Clause, (v) The Fourteenth Amendment Due Process Clause.

In my lawsuit against the Honorable Frank Geraci, I maintained that his refusal to rule upon my Motion to Proceed in forma pauperis for seventy-nine (79) days denied to me my absolute right to access court for redress of my grievances and to seek protection of my fundamental, constitutional and statutory rights.

What, you may ask, is wrong with ignoring my Motion to Proceed in forma pauperis for seventy-nine (79) days?  The problem is this: To those with money, the Honorable Frank Geraci granted immediate access to his Court but made impoverished litigants stand outside the Courthouse waiting his grace to enter thus denying equal protection of the laws between rich and poor.  Such denial by the Honorable Frank Geraci I maintained was evidence of abuse, non-use and/or refusal to exercise his office warranting a finding of “misbehavior” in that office by the Honorable Frank Geraci.  As such, I requested a judgment rendered after ‒ and only upon a jury verdict ‒ directing the forfeiture of the Honorable Frank Geraci’s office as a United States District Court Judge.

Now as you might imagine, when I filed this suit against the Honorable Frank Geraci on May 13, 2020, in federal court in Rochester, N.Y., the result was preordained.  Without allowing me to be heard, the Honorable Catherine O'Hagan Wolfe, immediately dismissed the suit and deemed it frivolous.  How dare I raise a “first impression” Constitutional issue which created an existential threat to the Article III hegemony of federal judges?

Needless to say, I don’t take “no” for an answer lightly and so this matter now pends at the federal Court of Appeals for the Second Circuit in New York City.  My Initial Brief details all this in greater detail.

More to follow when the Second Circuit makes its decision.


Wednesday, September 9, 2020

Delaware Refuses to Release Criminal Records Related to Joe Biden

Delaware State Flag

I have been trying since late last year to get the Delaware Office of the Prothonotary to release public records related to a criminal case which may well bear upon the fitness of Joe Biden to be President. However, if you are looking for a 280-characters explanation of the importance of the Prothonotary’s refusal to produce the requested documents, you won’t find it here as this is a complicated story.  Let’s go to the timeline:

In the Fall of 2007, my client Larry Sinclair accused then-Presidential candidate Barack Obama of engaging with him in drug use and homosexual acts. Shortly after that accusation, Larry began to exchange Text Messages regarding Obama with Donald Young, who was the Choir Director at The Rev. Jeremiah Wright Junior's Trinity United Church of Christ. This is the Church where then-Presidential hopeful Barack Obama was baptized, married and was a long-time member. On December 23, 2007, Donald Young was found executed in his Chicago apartment

In Mid-January 2008, Larry posted a video on YouTube regarding his specific allegations of sex and drug use with Obama.

On February 8, 2008, the Attorney General of Delaware (and the late son of Joe Biden), Beau Biden, filed an Indictment against Larry charging theft of less than $1,000 and, anomalously, for an extradition warrant.

In Early-March 2008, Larry contacted me as he was afraid for his life as a result of the Donald Young “assassination” and for advice on what to do as he was receiving death threats. To protect Larry, we: (i) filed a federal lawsuit against the anonymous blogger "Oswaldo" threatening Larry and (ii) organized a rather bizarre press conference on June 18, 2008, at the National Press Club which is still on YouTube. The goals were to push back against those threatening Larry and also make a buffoon out of him so he would be relegated to a dustbin of history and no longer a threat to the Obama/Biden ticket. The strategy worked. The FBI identified the person making threats against Larry and me but refused to identify either him or the U.S. Attorney who told the the FBI not to tell us his identity.

Immediately after the June 18, 2008 Press Conference and while still at the National Press Club, Larry was arrested on the Delaware warrant and subsequently extradited to Delaware on June 23, 2008. According to the Docket, on August 28, 2008, Beau Biden filed a “nolle prosequi” or dismissal of the criminal case against Larry citing to the Court: “Insufficient Evidence”.

In December 2019, I ordered the actual file of Larry's Delaware Criminal case and paid to have it retrieved from the Delaware Clerk's storage.  The Prothonotary of Delaware has refused to produce the file for my review despite my repeated requests. I believe that file will demonstrate that there was no evidence in support of the Delaware Warrant but rather it was a way for the Bidens to shut Larry up until after the election. It worked.

The circumstances surrounding Larry’s indictment, arrest and the subsequent dismissal of the criminal charges against him for lack of evidence six months later by Beau Biden's office speak clearly to me of the heavy hand of Joe Biden utilizing the criminal justice system to silence an existential threat to Obama and by extension, to Joe Biden himself.

I don't know if Larry was telling the truth or not, nor do I particularly care if Barack Obama is gay and/or an addict; that is not the issue here. I do know and care that Joe Biden apparently had my client falsely arrested for making those accusations. Like so many in Washington D.C., Joe Biden has come to believe that if his has the "power" then whatever he does with it is "right". This is antithetical to our Nation's Founder's beliefs and significant sacrifices to achieve dominance for the rule-of-law that “what is right” flows from objective and agreed-upon sources of right and wrong, not from the possession of power alone.

For this reason, I do not believe Joe Biden is fit to be President of the United States of America because apparently to him the ends justify whatever means are used to obtain them. While I will admit to certain reservations about Donald Trump, in weighing the risks each man poses to the well-being of the United States of America, there is no question in my mind that Joe Biden is simply too morally untenanted to be a four-year tenant in the most powerful Chair in the World.


Saturday, August 15, 2020

A Response to Reginald Oh’s Newsweek Article: Born in the U.S.A.: Kamala Harris Is Eligible to Become Vice President

Eight Attempts to Eliminate 'Natural Born Citizen' Requirement Ahead of  Obama 2008 Presidential Run |

The political-driven and intellectually-vacant Newsweek Article by Reginald Oh demands a retort. Given my extensive litigation experience in this area, I am compelled by my civic duty to give that reply.  In sum, Mr. Oh conclude that: 

Is Kamala Harris ineligible to become vice president because she is not a natural born United States citizen? Can that possibly be true? The answer is no. An examination of the relevant constitutional provision and Supreme Court precedent tells us that Harris is indeed a natural born U.S. citizen and fully eligible to become vice president.

This of course begs the more important question: Can Senator Harris become President if , assuming he is elected, Mr. Biden cannot fulfill his term? As I will demonstrate below, the substantial legal precedent holds the opposite. What Mr. Oh sought to achieve in his Newsweek article, legitimizing an illegitimate candidate for Vice President who could potentially become President, has no basis in the Law of the United States.

First,  the facts: Mr. Oh states, and I have no reason to believe otherwise, that: "[Kamala Harris’] immigrant parents were not permanent resident aliens when she was born [in California]. Her parents were students, presumably in the U.S. on student visas at the time.”

Second, the law: The Constitutional provision at issue: Article II, Section 1, Clause 5 states:

No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.

Plainly, Ms. Harris is a “citizen” of the United States and entitled to all the privileges and immunities that status entitles her.  However, the Constitution adds an additional requirement for those who would seek to be President.  They must be a “natural born Citizen.”  Tellingly, Mr. Oh fails to mention this requirement in his attempt to ignore the law of this land.

This brings into focus the seminal question: Who is a “natural born Citizen”?  As detailed below, any cogent analysis of this legal-term-of-art can only arrive at one conclusion: Senator Harris, while certainly qualified to be Vice-President, could not succeed to the Office of President as she is not qualified to be President of the United States as required by Article II, Section 1, Clause 5.

In the 18th Century when the Constitution was ratified by the States, the term “natural born Citizen” had a definite meaning well known to those schooled in the law.  “The natives, or natural-born citizens, are those born in the country, of parents who are citizens.” (Emphasis added).  Senator Harris’ parents were not U.S. citizens at the time of her birth.

Importantly John Jay's July 25, 1787 letter to George Washington concluded that the Constitution should: “declare expressly that the Command in chief of the american [sic] army shall not be given to, nor devolve on, any but a natural born Citizen.”  Subsequent to John Jay's July 25, 1787, letter, on August 22, 1787, it was proposed  at the Constitutional Convention that the presidential qualifications were to be a “citizen of the United States.”  Upon objection to such a broad definition, the language was referred back to a Committee, and the Article II, Section 1 qualification clause was changed to read “natural born Citizen,” and was so reported out of Committee on September 4, 1787, and thereafter adopted in the Constitution.  Plainly, the drafters of the Constitution wanted the more limited scope of citizens who were “natural born Citizens” to be eligible to be President. 

Moreover, turning to the enactments of the First Congress for guidance, it is plain that “citizen” cannot be conflated to equate with “natural born Citizen”.  The Naturalization Act of 1790 which held: “the children of citizens of the United States, that may be born beyond sea, or out of the limits of the United States, shall be considered as natural born citizens: Provided, That the right of citizenship shall not descend to persons whose fathers have never been resident in the United States . . . .” (Emphasis added). Of dispositive significance is the 1790 Act's employing of the plural noun “citizens” in defining who shall be “natural born citizens.” and the singular noun as to whom are only to gain “citizenship”.  

Therefore, either Mr. Oh is a sloppy legally researcher or more likely his vapid Newsweek article was presented as purposeful political dissimulation.

All this brings me to the most glaring omission in Mr. Oh’s Newsweek polemic: His failure to cite the relevant Supreme Court case on the term “natural born Citizen”.  The only Supreme Court decision which has directly construed the “natural-born citizen” clause from Article 2, §1, is Minor v. Happersett, 88 U.S. 162 (1874).  In that case, the Supreme Court held: “The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. At common-law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners. Minor v. Happersett at 168 (Emphasis added).   Again, the plural noun “parents” is dispositive of the issue of who is a “natural born Citizen”.

Chief Justice John Marshall said, in delivering the opinion of the Court in Marbury v. Madison (1803): “It cannot be presumed that any clause in the constitution is intended to be without effect; and therefore such construction is inadmissible, unless the words require it.”  Notably, the phrase “natural born Citizen” appears just once in the Constitution and the phrase “citizen” appears twenty-one (21) times.  Plainly, something more than just “citizenship” is required in order to be President.

Thus, I must maintain that the shoddy citations by Mr. OH to imply that Senator Harris is eligible to be President cannot stand.  The reference to de Vattel, The Naturalization Act of 1790 and the holding in Minor v. Happersett are all consistent: “natural born Citizen” is a privilege bestowed upon a special class of U.S. Citizen, to wit, a child born of two U.S. Citizen parents. Stated another way, Senator Harris is not a “natural born Citizen” and thus is ineligible to be President as her respective parents were not U.S. Citizens at the time of her birth.  Hence her presumed nomination by the Democratic Party to be Vice President is either ill-informed or a clever ruse to make the Speaker of the House, Nancy Pelosi, the next in line if Mr. Biden is elected and fails to fulfill his term in office.  Take your choice.

What is really at issue is the very fundamental question of whether We the People are to be governed by the rule of law as embodied in our organic document or instead, the whim and caprice of the ruling class which seeks to pervert the law to their desired ends.   I hold the former is the most important question of this election cycle and I will continue to raise the hue and cry as best I can.