The Fogbow Forum Hacked

If you tried to visit the Fogbow Forum this morning your were greeted with the following image:


Apparently Foggy’s server was hacked.  I checked Foggy’s Twitter feed and he said he is working on it. Meanwhile if you would like to discuss anything Birther or Sov Cit related please feel free to do so here.

The highlight of the news for today seems to be that Alabama Supreme Court Chief Justice Roy Moore has been suspended without pay for his action of ordering Alabama probate judges to defy the ruling of the US Supreme Court by refusing to issue marriage licenses to gay couples. It couldn’t happen to a more deserving jackass.

Edit: Here is an update from Foggy on Facebook:

ALL my websites have been hacked, not just Fogbow. They’re working on it, restoring a clean (?) copy from this morning at 1:00 a.m. I paid $200 for extra service at my hosting company so I can talk to them by phone and not just work on the ticket system. I’m working on it as fast as I possibly can.
This is exciting!! AAAUUUGH!!!

I created a chat room on Chatzy to use until the Foggy is up and running. All are welcome.

Fogbow Emergency Chat Room

Posted in Birthers | Tagged , | 10 Comments

Birther Attorney Mario Apuzzo continues to rack up the losses

New Jersey attorney Mario Apuzzo who seems to have made a legal career out of losing Birther cases has continued his perfect record into the 2016 election cycle. I first chronicled Apuzzo’s record back in 2012 with an article I wrote titled “Mario Apuzzo’s Mazing  Birther Legal Adventures”.  After losing 11 12 actions against first President Elect then President Barack Obama from 2009 – 2013 covering two presidential cycles he filed challenges against candidate Ted Cruz in 2016. He teamed up with a familiar name in Vermont, Brooke Paige, and new plaintiffs in New Jersey and Pennsylvania. [I updated the case list and added it at the end of this post.]

In Vermont as was the case in 2012 Mr. Paige filed pro se because Mario was not admitted to practice there but Mr. Apuzzo provided assistance in writing the complaint. Paige actually challenged four candidates. In addition to Canadian born Senator Ted Cruz he challenged Florida Senator Marco Rubio and two minor party candidates as being ineligible.  The case was filed against the Vermont Secretary of State to force him to remove the names from the primary ballot. Mr. Paige (and Mario) failed again.

In New Jersey on his home turf Mario teamed up with new plaintiffs to file a ballot challenge. Once again the challenge went before Administrative Law Judge Jeff Masin. Unlike the challenge in 2012 I have not been able to locate video of the hearing before Judge Masin. The 2012 hearing was memorable because we got to see Mario schooled by a quite young but capable attorney Ms. Alexandra Hill. Apuzzo’s case, Powers v Cruz was combined with a case brought by a write in candidate and attorney Victor Williams. Judge Masin dismissed the challenges and ruled that Ted Cruz was eligible.

Finally Mr. Apuzzo has signed on to write a appeal to the Supreme Court for a ballot challenge case from the Commonwealth of Pennsylvania. That case was filed by Pittsburgh resident Carmen Elliott. He lost in both district court and the state supreme court in Pennsylvania. The petition to the Supreme Court of the Untied States is pending. Most followers of these types of cases give it little chance of being heard.

For a full listing of the Birther cases see the prior article I linked above. Details of these cases are available on this blog, at the Fogbow forum, and at Obama Conspiracy Theories. Mario Apuzzo’s and Charles Kerchner’s blogs also have articles and case document. I believe the list is complete but I might have missed an appeal in Vermont or New Jersey. Cruz appeared on the ballot in both state primaries however.

The net effect of the 2016 election cycle is that the Birthers have managed to create a fairly sizable collection of decisions that anyone who is a citizen from birth regardless of birth location is a natural born citizen. It’s not what the Birthers intended but as is often the case with them the outcomes are not in line with their views and desires.

This is the updated list of Mario Apuzzo’s Birther cases and the outcomes:


Date Case Outcome
2009 Kerchner et al v. Obama et al Charles F. KerchnerD.N.J. (Federal) Dismissed
2010 Kerchner et al v. Obama et al Charles F. Kerchner 3rd Circuit Court of Appeals DISMISSAL AFFIRMED Published Opinion – Appeal ruled frivolous under FRAP 38. Show Cause (Sanctions) Order Issued
2010 Kerchner et al v. Obama et al Charles F. Kerchner Supreme Court of the US Writ for Certiorari Denied
2012 Kerchner et al v. Obama et al Charles F. Kerchner Dale A. Laudenslager – Pennsylvania State Commonwealth Court Apuzzo application for admission pro vice denied. Amended application for admission denied. Apuzzo filed a 199 page amicus brief. Case dismissed.
2012 Tisdale v Obama4th Circuit Court of Appeals (District court in VA dismissed sua sponte) Apuzzo unable to find sponsor for pro hac vice application. Filed 52 page amicus brief. Dismissal affirmed.
2012 Strunk v NY State Board of Elections et al
NY State Supreme Court Kings County, NY
Apuzzo filed Amicus brief. (It was actually a blog post by Appuzo that Strunk sent to the court and Judge Schack chose to treat is an amicus brief). Case dismissed. Sanctions and fees imposed on plaintiff Strunk
2012 Purpura et al v. Obama Nicholas E. Purpura Theodore T.Moran – New Jersey Ballot Challenge Apuzzo argued before ALJ Jeff Masin Challenge dismissed – “case without merit.”SoS Affirmed dismissal
2012 Purpura et al v. Obama Nicholas E. Purpura Theodore T.Moran – New Jersey Ballot Challenge – Appeal to New Jersey Superior Court Apuzzo argued before three judge panel. Appeal dismissed “case without merit”
2012 Purpura et al v. Obama Nicholas E. Purpura Theodore T.Moran – New Jersey Ballot Challenge – Appeal to New Jersey Supreme Court “Petition for certification denied with costs.”
2012 Paige v State of Vermont, SoS Condos, and Barack Obama – Vermont Ballot Challenge – Vermont Superior Court “Petition Denied”
2013 Paige v State of Vermont, SoS Condos, and Barack Obama – Vermont Ballot Challenge – Appeal to Vermont Supreme Court “Appeal dismissed as moot”


Paige v State of Vermont, SoS Condos, and Barack Obama – Vermont Ballot Challenge -Petition to the Supreme Court of the United States “Petition DENIED”


Paige v Condos – Vermont Superior Court, Ballot Challenge against Cruz, Rubio and Two Other Candidates. (Paige pro se but with assistance from Apuzzo) “Challenge DENIED”


Powers v Cruz (Combined with Williams v Cruz) – New Jersey Ballot Challenge “Challenge DENIED. Ted Cruz is eligible and meets the requirements of Article II”


Elliott v Cruz – Petition to the Supreme Court of the United States (appeal of denial of Pennsylvania ballot challenge, Apuzzo wrote petition) Petition for Writ for Certiorari pending
Posted in Ballot Challenge, Birther Cases, Birthers, Mario Apuzzo | Tagged , , , , , , | 81 Comments

Birther “Expert” Albert Renshaw now retracts his analysis

Could it be? An honest Birther? By chance I recently viewed a video made by Albert Renshaw four years ago after the release of the President’s long form birth certificate. You may recall that Renshaw was the 16 year old who made a video showing that when the LFBC PDF file posted at the White House web site was opened in Adobe Illustrator it had layers and also had duplicated characters. The video went viral and has gathered over 1,500,000 views to date.

Renshaw’s analysis and other similar analyses performed by self proclaimed amateur experts using Illustrator were used by Sheriff Joe Apraio’s Cold Case Posse led by Mike Zullo to form the basis for a claim that the President’s long form birth certificate released on April 27, 2011 was a forgery.

As we now know the layers were the result of the equipment and software used to scan the certified copy of the Obama birth certificate to generate the highly compressed PDF file that was posted for public viewing and downloading at the web site after the April 2011 press conference.

Now Renshaw, who is 21 now realizes his analysis was wrong. He has added the following note on the video:

Renshaw readact 2

While Renshaw wrote “redact” it is clear that he meant “retract”. I would speculate that one reason Renshaw saw the light is that I and some other commenters made him aware of the results of the Xerox investigation that blogger NBC and others including me conducted. Earlier John Woodman had addressed the problems with Renshaw’s flawed analysis in his excellent series of videos and in his book Is Barack Obama’s Birth Certificate a Fraud?

It’s nice to see that the young Mr. Renshaw has grown up and has seen that he made an error. It takes character to admit you were wrong. I think he should do a little more than just leave the videos up with a small note at the beginning of one video. A good start would be to apologize to the President and his staff.

Now we await the other self proclaimed experts to follow suit and admit they were wrong? Are you listening Mara Zebest? What about Karl Denninger? Garett Papit? Mike Zullo? Time to man up!

[Updated 12/13/2015: Renshaw has now corrected the video to read “I retract”. I assume he did so based on a comment I left.]

Posted in Birth Certificate, Birthers, Cold Case Posse | Tagged , , , , | 80 Comments

The incredibly inept Cold Case Posseman Mike Zullo goes hunting for Obamabots and finds DARPA (at the wrong web site)

Come out you wascally ObamabotsThis is a tale of incompetence so hilarious that it could be a script for an Elmer Fudd cartoon or a sequel to the Pink Panther movies with the inept Inspector Jaques Clouseau. The tale stars our favorite bumbling “detective” Cold Case Posse Commander Mike Zullo. It costars Arizona’s Maricopa County Sheriff Arpaio and the supporting cast are his deputies who also joined in the misadventure known as the Seattle Operation.

First let’s go back to October 2013. It had been a bad year for Mike Zullo and his investigation of President Obama’s Birth Certificate. Over a year had passed since the second MCSO press conference in July 2012. The investigation was going nowhere. The evil “Obamabots” (including yours truly) had a field day destroying the evidence that Zullo had publicly released to support his ludicrous claim that President Obama’s birth certificate was forged. Despite trips to Washington to troll the halls of Congress not a single member of Congress had signed on to do anything with Zullo’s evidence. One teleconference meeting with Rep. Wayne Woodall from Georgia had gone so badly that when a video of the call was posted at Birther Report by Birther Pixel Patriot it was immediately pulled when a few members at the Fogbow forum viewed it and pointed out that Woodall wasn’t buying any of the nonsense that Zullo was selling.

Mike Zullo’s frustration and anger spilled over a couple of times during his near weekly appearances on Pastor Carl Gallups Freedom Friday radio show in tiny Milton, Florida. In August 2013 he went so far to say that some of his critics including me “were the subjects of a criminal investigation”. The supposed crimes were not detailed. I called Mike Zullo just to get under his skin and told him I knew he had no law enforcement authority and that I wasn’t worried. Zullo tried to bully me and claimed he could sit me down in a room full of people with badges if I came to Phoenix. I also called a real sergeant at the MCSO. He laughed about it and basically said no one there took Zullo seriously.

It was only a few weeks later that Zullo and Gallups began speaking of a new “deeper and darker” turn the birth certificate investigation had taken. Again no details were provided other than hints. Zullo said the “Xerox evidence” pushed by the Obots had led to other areas and that a criminal investigation was underway and deputies from the MCSO were now involved.

This meme was repeated almost weekly in late 2013 and into 2014. On the Freedom Friday show on February 14, 2014 Gallups and Zullo dropped a new “bombshell” in this exchange:

Gallups: Obots, we know that there are operatives out there—Obama-loving operatives. That’s OK to love Obama; that’s fine, but these people have interjected themselves all throughout this investigation in various ways, some to the point of actually, I think, interfering with the investigation, but they’ve interjected themselves on radio and the Internet, Blogtalk Radio, my radio program and all over the blogs and web sites, but isn’t it correct, my understanding that you know who some or most of these guys are, the most important ones, I mean have you done some digging? You know who those guys are?

Zullo: We have a pretty good idea of who some of the ones who are anonymous are. One we know works in the field of artificial intelligence in projects that are funded by DARPA. That tells you a lot right there. We have traced IP addresses going directly back to the Administration.

Almost immediately the Birthers at Birther Report decided with no evidence whatsoever that the “Obamabot” was yours truly and that I actually worked for DARPA.

So how did Mike Zullo decide that this important operative who worked in artificial intelligence projects funded by DARPA was actively working to thwart him and his Obama birth certificate investigation? Until recently that remained a mystery. Zullo never gave out any more details on the “operative” or the criminal investigation, which by early 2014 Carl Gallups had elevated with ridiculous hyperbole to being described as universe shattering in scope. Another Zullo supporter Mike Volin let it slip on his Blog Talk program “Where’s Obama’s Birth Certificate” that Mike Zullo had told him a press conference would be held sometime in March 2014 to release the “universe shattering” evidence. As we all know now March came and went without the promised press conference and “A-Z Day” as it came to be called never happened.

In June 2014 blogger Stephen Lemons at the Phoenix NewTimes gave the first details of what had been going on with Zullo and the MCSO in 2013. Lemons revealed that Zullo and Detectives Anglin and Mackiewicz of the MCSO had been working with a former CIA contractor named Dennis Montgomery to investigate federal district Judge Murray Snow and his family among others. Montgomery had already been labeled in an article in Playboy and in a New York Times article as a “con man” who had conned the US government out of millions of dollars with bogus software that he claimed could extract secret messages from the Al Jazeera news channel programming.

What Dennis Montgomery had dangled in front of Zullo d the MCSO as it turns out is a tale of wiretapping and hacking by the NSA and the CIA that supposedly included “hacking into” the bank accounts of 150,000 Maricopa County residents. Zullo didn’t have any comment on Lemons’ article but his unofficial spokesperson Carl Gallups called the Phoenix NewTimes a “gossip rag”; “found for free at bus stations”; “nobody pays attention to [it]”; “pro-homosexual”; “anti-American”; “they give it away–can’t hardly give the thing away”; “reporting way off base and totally wrong”; “rag”; “when you have to give it away at bus stops in a city the size of Phoenix”; “don’t trust anything [they say].”

Now fast forward to April 2015 and the contempt phase of the Melendres v Arpaio civil lawsuit. Joe Arpaio was on the stand and had answered questions about why he had failed to carryout orders from Judge Snow to make sure that the MCSO stopped making traffic stops based on racial profiling. After both the plaintiffs’ and the defense attorneys had finished questioning Sheriff Arpaio Judge Snow pulled out a copy of Lemons’ June 2014 article and began questioning him about it. Arpaio conceded that the details in the article about working with Montgomery were true but denied that they were investigating the Judge.

This interjection of the Seattle Operation into the Melendres case led to the subpoenas for depositions by some of the players including Brian Mackiewicz, Travis Anglin, and Mike Zullo and they were compelled to supply the plaintiffs documents related to the investigation. I won’t get into all the legal machinations that ensued. The included motions to intervene by Larry Klayman and Dennis Montgomery and motions for Judge Snow to recuse himself (all denied). You can read about those in Stephen Lemons’ fine articles nd at websites like the Fogbow Forum and Obama Conspiracy Theories.

Mike Zullo claimed Fifth Amendment protection for a portion of the documents that he had turned over to the attorneys from the Jones, Skelton and Hochuli law firm that represented the Sheriff in the criminal contempt proceedings. Zullo claimed he had been mistakenly led to believe the attorneys were representing him in addition to Joe Arpaio. Ultimately, Judge Snow ruled that Zullo’s Fifth Amendment rights only covered documents in his possession and he no longer controlled the questioned documents.

Among the documents turned over to the plaintiffs’ attorneys was the following evidence that Zullo was looking into the anti=birther forum the Fogbow:


The document was included in Plaintiffs’ Exhibit #2923 “Arpaio/DOJ Timeline”

This document revealed for the first time the source of Zullo’s claim that an Obama operative was funded by DARPA and worked with artificial intelligence. There was one small problem with Zullo’s claim. The web site was wrong. The URL for the Fogbow forum is “” while the website belonging to Richard Skalsky is “”. They are two completely unrelated web sites. A simple Google search would have revealed that the Fogbow Forum is owned by Bill Bryan, aka Foggy.

Zullo knew who Foggy was. Foggy had spoken with Zullo on Gallups program when Foggy called in. It was either on this or another show that Gallups tried to slander Foggy by claiming he was mentally ill.

It’s not clear who prepared the notes on Mr. Skalsky in the exhibit. It was probably Montgomery. We know from other testimony and exhibits that Montgomery’s MO was to mix some factual information with made up “junk” to make it appear as if he had classified or sensitive information. Two ex NSA employees who were hired by the MCSO to vet Montgomery said his information was fraudulent.

It turns out that this is not the first time a Birther had incorrectly identified Richard Skalsky as a high ranking Obot. In January 2011 a commenter at Dr. Kate’s (Kate Vandemoer) blog had made the same error and concluded that the owner of the Fogbow forum was Mr. Skalsky. The same error was repeated at the Birther Report blog.

After reading Stephon Lemon’s article I decided to contact Mr. Skalsky to let him know his name had come up in the Melendres v Arapio case and at least a few Birthers were connecting him to me. We had a nice conversation yesterday and Rick was thankful that I had taken the time to email him and let him know his name had come up again.

Back in January 2011 when the comment was left at Dr. Kate’s blog wrongly identifying Rick as the owner of the Fogbow forum a person named “Arthur B” had contacted him just as I did. The commenter at Kate’s blog also confused “” with “Foggy’s “”. They posted Rick’s name and home address which were available from the domain registration information. They also posted a Google Street view photo of Rick’s home in Palo Alto, CA. Rick was not using the domain but had only registered it since it was similar to his “” domain.

Naturally Rick was a bit unnerved at seeing his name, address, and photo of his home posted on an obscure blog accusing him of being starting a website to harass Birthers. Rick tried to contact the owner of Dr. Kate’s blog without success. He eventually emailed with a complaint. They never replied to him but the comment was removed shortly thereafter.

Rick took the steps of removing his home address from the domain registration at and having his home picture blurred out on Google street view.

I also found a similar comment on Birther Report/ORYR from May 28, 2012 left by “anonymous”. It listed the update domain registration for “”.

That was the last that Rick heard about the Fogbow until I contacted him recently. He had no knowledge that Mike Zullo, the Cold Case Posse, or MCSO had his name on the radar as the secret owner of the Fogbow forum. Rick said he was retired and had been the IT director for the Association for the Advancement of Artificial Intelligence for a number of years. AAAI is not some shadowy government organization. It is a professional organization that conducts conferences and publishes papers, books and periodicals for the advancement of knowledge in the area of artificial intelligence. This is from the AAAI website:

Founded in 1979, the Association for the Advancement of Artificial Intelligence (AAAI) (formerly the American Association for Artificial Intelligence) is a nonprofit scientific society devoted to advancing the scientific understanding of the mechanisms underlying thought and intelligent behavior and their embodiment in machines. AAAI aims to promote research in, and responsible use of, artificial intelligence. AAAI also aims to increase public understanding of artificial intelligence, improve the teaching and training of AI practitioners, and provide guidance for research planners and funders concerning the importance and potential of current AI developments and future directions.

These are the titles of some of the articles from a recent issue of the organization’s publication AI Magazine:

  •  A Deployed People-to-People Recommender System in Online Dating
  • Advice Provision for Energy Saving in Automobile Climate-Control System
  • An End-to-End Conversational Second Screen Application for TV Program Discovery

Hey, those certainly sound sinister don’t they?

The latest revelation about incompetence of Mike Zullo’s detective work should come as no surprise. This is the same guy who used already debunked evidence by amateur Birthers investigators to claim that the long form birth certificate posted on the White House website was a forgery. This is the same “detective” who used a race code table from the wrong year that Hawaii never used to claim that the race code pencil mark for Barack Obama Sr.’s race was wrong. A few minutes of reading sites like Obama Conspiracy Theories would have prevented that embarrassment. This is the same Mike Zullo who refused an offer from a conservative who literally wrote the book on the forgery theories on the Obama LFBC, author John Woodman.

We can all have a good laugh over Mike Zullo making such amateur mistakes. However, there is a serious side to all of this. Mr. Skalsky has now been falsely accused of running an anti-Birther forum and of being a paid operative for the government. Mr. Skalsky has had his name, address and even a picture of his house published in a disparaging way on the Internet. Mike Zullo, Carl Gallups and Mike Volin have accused me of being the subject of a criminal investigation that never really existed.

One would hope that the revelations about the ridiculous Seattle Operation with scammer Dennis Montgomery and the waste of donations and Maricopa taxpayers’ money would bring this charade to an end. However, based on my experience following Mike Zullo and the Birthers I would bet against that. Unless Arpaio and Zullo are made to account for their misbehaviors I see nothing to make them stop. The gullible hard core Birthers still believe one day “A-Z Day” will come and are willing to send Arapio money.

For further reading about Mike Zullo and the birth certificate investigation see the many previous articles here.

Posted in Birth Certificate, Birthers, Cold Case Posse, Mike Zullo, RC Radio | Tagged , , , , , , , | 9 Comments

Is Ted Cruz a Natural Born Citizen? Part I

I am creating this topic to provide a place to continue the discussion that has now exceeded 6000 comments at Western Free Press on and article titled Ted Cruz and Natural Born Citizenship: A Belated Reply to Mario Apuzzo The existing thread there takes forever to load.

If and when this topic becomes unwieldy I can always start a new thread.

Posted in Ballot Challenge, Birther Cases, Mario Apuzzo | Tagged , , | 18 Comments

Regent University Law Professor Pryor Plays Birther Then Bails

Professor Scott Pryor

Last month Regent University School of Law * professor Scott Pryor published a glowing review of Regent student John Ira Jones’s paper on the meaning of the term “natural-born citizen”. The article was posted on Professor Pryor’s blog “Pryor Thoughts”. The paper that Jones published was titled “Natural Born Shenanigans: How the Birther Movement Exacerbated Confusion Over the Constitution’s Natural Born Citizen Requirement”.  Referring to the paper Pryor wrote:

No simple-minded birther controversy here but a well-reasoned article looking at a frequently-forgotten Founding-era resource, Emmerich Vattel and his 1758 book, The Law of Nations. Download and read Regent law student John Jones’s piece, Natural Born Shenanigans: How the Birther Movement Exacerbated Confusion Over the Constitution’s Natural Born Citizen Requirement.

Just what does “natural-born citizen” mean? Born anywhere in the world to American citizens? Of course. Born in America to non-citizens? Seems so. But might there be more to the constitutional phrase than the obvious? And would the Framers of the Constitution have intended to convey the “more”?

As for the latter question, Jones asserts a strong conclusion:

Contrary to the popular impulse toward a historically uninformed view of the term ″natural born citizen,″ a cursory reading of Vattel coupled with an understanding of its significance to the Framers suggests that the requirement is not a novel term invented by the Framers, but rather a term of art with a fixed meaning which would have been known to scholars and statesmen of the day. Indeed, this understanding seems to comport with what one would expect of a group of learned men convening to lay out a framework for government–the Framers did not invent terms when invention was improper. They used accepted, established terms to convey meanings in ways that would not be subject to later arbitrary revision.

While Jones’s paper properly portrays the Birther claims that President Obama was born in Kenya as nonsense he veers into the ditch by accepting the argument that 18th century Swiss philosopher Emer de Vattel in his treatise The Law of Nations provided a definition of the term “natural-born citizen” as used in Article II of the US Constitution in the presidential eligibility clause.

Rather than get into a lengthy discussion on the fallacy of his claim about de Vattel and the paper in detail I provide a comment left by Kevin Davidson, aka Dr. Conspiracy on the Pryor blog post:

Groucho Marx is quoted: “I refuse to join any club that would have me as a member.” I refuse to take any academic article seriously that cites me (“Dr. Conspiracy”) as a source.

I find Mr. Jones argument to be “warmed over birther with footnotes,” and I found nothing that I hadn’t seen a dozen times on birther blogs and in birther lawsuit briefs. It exhibits the same bias in selecting sources, ignores the same primary sources, and glosses over the same problems. It is the same argument explicitly rejected by the courts since 2008.

Mr. Jones writes: “It would be difficult to overstate the influence of Vattel’s treatise on the Framers,” but I think he succeeds quite well in doing so, relegating the elephant in the room–the lack of the phrase “natural born citizen” in any English language edition of Vattel in 1789 to a footnote, and there dismissing the translation problem with a wave of the hand. James Kettner in his 350-page book, “The Development of American Citizenship, 1608-1870,” cites Vattel not once. And indeed, I have been able to find but a single citation from the founding generation of Vattel on the acquisition of citizenship, and that was in a letter to the editor of a Charleston, SC, newspaper by a loser in the race to be a member of the first Congress. No one in the founding generation that I know of ever talked about parentage as a criterion of citizenship or allegiance. All of the eligibility debates in the Constitutional Convention centered around how long a person must be a citizen. If the Convention were following Vattel, the United States would have had a king and mandatory state religion.

Mr. Jones cites dicata in a legal decision to support the claim that “Vattel was the most widely cited international jurist in the fifty years following the Revolutionary War,” but a legal citation is hardly an appropriate way to demonstrate a historical fact. In an actual study by Mr. Lutz of the works from the founding generation, the most often-cited jurist was Sir William Blackstone (as any lawyer should have guessed). Vattel lags behind John Locke, David Hume, Plutarch, Pufendorf, Sir Edward Coke, Rousseau and Machiavelli. (Vattel is number 29 on the most-cited list). Vattel cannot be discarded, but Mr. Jones discards Blackstone!

The complete omission of the interchangeable usage of “natural born citizen” and “natural born subject” in various state naturalization acts both before and after the ratification of the Constitution is a serious hole in the discussion. I find the complete omission of the Supreme Courts’ reasoning in US v. Wong, and its citations on the equivalence of natural born citizen and natural born subject to be inexcusable.
And to bring into the question the 6-2 decision in Wong by saying that Justice Gray was appointed by President Arthur (who the article suggest might not be eligible either) is guilt by insinuation. That bit is pure conspiracy theory right out of the birther playbook. Let me point its absurdity by exposing the contradiction. In order to say that Justice Gray was biased because he was appointed by an ineligible Arthur, one must deny the second premise of that argument: that Arthur hid his father’s naturalization status.

The highest court in Arthur’s state had said in Lynch v. Clarke (1844), that the children of aliens born in the United States could become president. Vice Chancellor Sandford also said that this was the universal opinion of the legal community and the public. Sandford gives an extensive historical survey, much broader and far more balanced that we get from Mr. Jones, even to the point of examining Vattel.

I agree with Mr. Jones, that birthers have muddied the waters and sown confusion on the question of presidential eligibility; however, I do not see that the works of Mr. Jones can be distinguished from the birthers in any way, and I am one of the nation’s foremost experts on birthers.

The crazy Birther blog Birther Report also found the article by Professor Pryor and of course ate it up in an article published there recently.

The comments on Pryor’s article began to come in on both sides (including a couple left by this author) and then the other night Professor Pryor pulled the plug on further comments and suggested that the discussion be taken elsewhere:

I’ve never received the number of comments that this post. has generated. And to think, most have come in a flood three weeks after the fact. I appreciate the many insights and thoughtful comments posted by some. Indeed, I appreciated the others that seem to have wandered a bit afield. I am, however, bringing the comments to an end. It’s time for all of us to move on to more fruitful pastures or at least to take this conversation elsewhere.

At the time of Pryor’s closing of the comments a grand total of 11 comments had been approved. Wow, such a work load! I still had at least one comment in moderation and strangely enough this comment left earlier by French attorney and frequent commenter  at Obama Conspiracy Theories “Lupin”was not approved:


“Perhaps when commenting upon a law text written in French, Mr Jones would be well advised to first consult a French lawyer? I am such a thing, with the added bonus that I have actually edited translations of Vattel’s text into English, and am more than familiar with the subject.

“The short version of it is that, even if you agree that Vattel’s term “indigene” or “naturel” is equivalent to your own term “natural born citizen” (which is a highly debatable point), Vattel clearly stated that citizenship was transmitted by the father only.

“The notion that father and mother had both to be citizens in order for their child to be a “naturel” is total rubbish, born of ignorance of basic syntax, and contradicted in the text itself.

“As you may or may not know, Vattel’s (amongst other legal texts) was the basis for Napoleon’s Civil Code of 1804, and there is extensive jurisprudence on the subject. FWIW, the position of the mother was finally acknowledged in the 1860s and of course both sexes were made equal before the Law in that respect in the mid-20th century.

“Finally, I’ll add that while Vattel was concerned with jus sanguinis (the term “parens” actually means all blood relatives and not merely the two parents), he also acknowledged that England used jus soli for the basis of citizenship and had no problem recording the fact.

“I don’t mean to lecture about this but Mr Jones’ paper is, at least as far as his understanding of Vattel is concerned, total rubbish and unworthy of the institution to which he belongs.”

(Lupin reposted his comment at the open thread article at OCT.)

I can only speculate why Professor Pryor chose to shut down discussion on the article. Perhaps he didn’t want it to turn into a dragged out flame war between Birthers and Anti-Birthers. We all know that can happen. Just look at Greg Contario’s article on Ted Cruz’s eligibility at Western Free Press which now has almost 5000 comments and has turned into a platform for Obama haters like Mario Apuzzo, Rambo Ike, and ksdb (Joe Montgomery who filed a losing ballot challenge in Kansas), and others to push their discredited and losing theory that President Obama is usurping the office because his father was a British subject and not a US citizen at the time of his birth.

Perhaps, Professor Pryor after reading the comments like the ones I quoted above decided his glowing praise of Jones’s paper was given without doing proper research into the subject and was misplaced. Rather than embarrass a student with a retraction he would just end the discussion. I can understand if that is the case.

Of course comments here are welcomed as long as they do not violate the blog comment policy. I know handling all those comments is a real work load but I think I am up to the task.

*Regent University was founded by televangelist Pat Robertson in 1978 the School of Law  opened in 1986. Both are located in Virginia Beach, Virginia. Regent School of Law was ranked 287th overall by US News and World Report. According to Regent’s web page “our students receive rigorous legal training plus the added benefit of a Christian perspective through which to view the law.” Its most famous faculty member is form US AG John Ashcroft.

Posted in Birthers, Natural Born Citizenship | Tagged , , , | 10 Comments

Mario Apuzzo Esq.: Virtual Reality Litigator


“Sailors Snug Harbor dancing sailors-1-” by Halfcentury – Own work. Licensed under CC BY-SA 3.0 via Wikimedia Commons –

The following article was written by guest author Frank Arduini, aka “Historian Dude”. Frank has been engaging in a month long comment battle with Birther attorney Mario Apuzzo at the Western Free Press on an article about the eligibility of Ted Cruz. As one might have expected when Mario Apuzzo gets involved the discussion became all about the eligibility of Barack Obama instead of the subject of the original article. Of course Apuzzo thinks neither of them is a natural born citizen despite the fact that every Birther challenge against Barack Obama on eligibility including the ones Mr. Apuzzo has litigated have failed.

The number of comments there is approaching 3500! For your reading enjoyment:

Mario Apuzzo Esq.: Virtual Reality Litigator by Frank Arduini

Birther attorney Mario Apuzzo was, at one time, among the more active litigators of the birther movement. But after an unbroken string of failures at every level from administrative law courts to SCOTUS, Apuzzo “retired” in 2012 to the safety of the Internet where he is protected from genuine legal review or potential judicial sanction. In the subsequent two years he has committed hundreds of thousands of words online trying to argue and reargue the cases that he previously lost in court. And on the Internet (and especially on his own blog where he is a ruthless moderator and the sole judge) he always “wins.”

At the beginning of March 2015, Apuzzo was called out by name on the conservative blog The Western Free Press by author Greg Conterio challenging Apuzzo’s assertions that Tea Party favorite Ted Cruz was ineligible for the Presidency. The comments section quickly exploded in a generalized festival of birther/obot argument that as of this writing has lasted more than a month and garnered well over 3,000 posts. A significant part of the “discussion” has been an ongoing contest between Apuzzo and this author (posting under the UserID “HistorianDude”) focused on the central foundation of Apuzzo’s entire argument: that Article II of the Constitution defined “natural born citizen” not according to English common law, but according to an as yet undemonstrated “American common law” that had emerged between the Declaration of Independence and the framing of the Constitution. As part of this argument, Apuzzo has conceded that, under English common law the children of aliens born on national soil became natural born subjects. He has also conceded that the definition of NBC found in Article II of the Constitution is derived from “the common law.” But, he baldly asserts that the “common law” in question had magically (and anachronistically) been redefined to conform with a treatise on international law by the 18th century legal theorist Emer de Vattel.

Of course, any competent lawyer knows that this is not how common law is created. A nation may certainly incorporate other sources of law into their own via statute. But common law derives from case law, the judgments of previous courts that create legal precedent binding on those courts that follow. For the English common law definition of natural born citizen to have been altered or replaced by a new “American common law” definition, there must have been case law created during the eleven years between the Declaration of Independence and the Constitution that generated that change. And of course, this would have been a particularly neat trick since, under the Articles of Confederation there was no national judicial system at all wherein such case law might have been created.

For more than a month this author has repeatedly challenged Apuzzo to demonstrate the case law from between 1776 and 1787 that must exist for his alleged “American common law” to be more than fiction. Failing that, Apuzzo was challenged to identify a single English language document or source that agreed with his favored definition of natural born citizen. He has failed to meet either challenge.

Inglis v. Sailor’s Snug Harbor: An Inglis Lesson for Apuzzo
To fill the gap Apuzzo’s favored method of argument is to cite much later cases, often badly misrepresenting them, and insist that they somehow reflect a different common law than English common law. That “different common law” is then retroactively ascribed without evidence to Article II of the Constitution. It is a complete non-sequitur, on occasion demanding the violation of basic laws of physics. This essay is inspired by one such attempt.

After a month of frustration, and seeking desperately to shift the unmet challenge from his own back to that of his tormenter, Apuzzo brought up an 1830 inheritance case called Inglis v. Sailors’ Snug Harbor. He wrote:

“Since it is common law that you have requested of me, I have the following question. In Inglis v. Sailors’ Snug Harbor, 28 U.S. 99, 3 Pet. 99, 7 L.Ed. 617 (1830), the U.S. Supreme Court gave the scenario wherein the child was born in New York, after July 4, 1776 and when it was American territory, hence, before September 15, 1776, when the British took possession of New York, to a British father and mother. In that scenario, did the majority of the Court rule that he was an American citizen or an alien? Please explain what source the Court relied upon to come to its conclusion.”

Certainly Mario’s intention here was to use Inglis to assert that a different common law was in operation in the time period considered by the case. The standard birther misrepresentation of the case asserts that “the majority ruled that, even if the plaintiff had been born in U.S.-controlled territory, he was a British subject by birth and not an American citizen, due to the fact that his parents were British subjects, not U.S. citizens.” If that were true it would certainly support a claim that the common law had changed by the time the Inglis decision was made; i.e. by 1830. Since that hardly helps Apuzzo meet his challenge, missing the necessary time frame by some 43 years, I could be justified in making that observation alone and ending the discussion. But in actuality, exploring the birther misrepresentation reveals the case to be further evidence of the persistence of English common law through the Revolutionary period long after the Declaration of Independence, further narrowing the window within which Apuzzo’s unidentified case law would necessarily have to occur.

Let me begin the actual analysis of Inglis by taking Apuzzo’s counter challenge head on. I will directly answer his questions, and only then engage in the more comprehensive discussion that justifies the answers. Mario’s first question was phrased as a classic conservative dichotomy, an either/or question with two and only two options:

Q1: Did the majority of the Court rule that he was an American citizen or an alien?

Of course, in the real world things are rarely as simple as either/or. The answer to that question requires more subtlety than the question possessed when it was asked:

A1: The majority ruled that Inglis was an alien “at the time of descent cast.” They offered no ruling at all regarding his status at birth.

What does that mean? “At the time of descent cast”?
Inglis was an inheritance case in which a man named John Inglis was claiming a large inheritance from an American relative that might otherwise have been donated to a charity for aging sailors. One of the factors that would have derailed his claim was that under prevailing law, only US citizens could inherit land. So the citizenship status of Inglis was important to the case, but only his citizenship at the moment of actual inheritance; i.e. “at the time of descent cast.” It did not matter what his citizenship might have been one week prior or one week later. So since the direct issue before the court was whether or not he was a citizen at the moment of inheritance, which is the ruling the court made. The majority found that Inglis was an alien “at the time of descent cast” and therefore unable to inherit.

But we will see as this essay progresses that the court actually made no ruling at all regarding John Inglis’ citizenship at birth. The determination of his national character would, in the court’s opinion, be independent of the common or statutory law normally determinative of status at birth. This is because something special was happening at the time, the American Revolution.

Apuzzo’s second question was this:

Q2: What source did the Court rely upon to come to its conclusion?

Apuzzo’s intent here is twofold. First, he is fully aware (and I fully agree) that the source cannot have been the English common law. Secondly, he believes he has an ace up his sleeve in that one of the sources cited is, you guessed it, Emer de Vattel. It does not appear to occur to Apuzzo that the citation is to a section of Vattel’s book, which has nothing whatsoever to with the “definition” that he wishes to anachronistically graft onto the common law. Nor does he consider that Vattel is cited not as an application of common law, but as an application of international law. So again, recognizing the actual subtlety of the court decision, the direct answer (which will be explained in detail in a moment) is:

A2: As to existence of a general right for people to voluntary choose their allegiances during or immediately after a revolution their source was international law. As to Inglis’s subsequent nationality “at the time of descent cast,” their conclusion was based on the specific details of his actions subsequent to achieving majority as an adult, many years afterwards.

Apuzzo prefaced his questions with a reference to common law in the effort to position himself against the challenge to his imaginary “American common law.” Unfortunately, any genuinely careful review of the Inglis decision (or at least in the part of the decision relating to John Inglis’s nationality) quickly reveals that it had exactly nothing whatsoever to do with the common law.

Inglis v. Sailors’ Snug Harbor is one of a handful of early SCOTUS cases that dealt with unique circumstances of the Revolutionary period, a time in which the new United States and Great Britain were engaged in the bloody business of dividing into two separate and sovereign nations; a period of Anglo-American history sometimes called “The Great Divorce.” The circumstance of citizenship during a revolutionary transition was and remains completely unconsidered by the common law. There existed no body of case law with which to guide the Justices that pertained to a situation in which a single nation was splitting into two, and where the common law criteria of allegiance / citizenship / subjecthood were suddenly rendered ambiguous and arbitrary. As Justice Story pointed out in his worthy dissent, “The case of the separation of the United States from Great Britain… has been treated on many occasions, both at the bar and on the bench, as a case sui generis.”

The decision regarding John Inglis’ nationality did not rest on any application of the common law, nor did it create common law. Nor did it rest upon any existing statute. Instead it was built on the recognition that the unique circumstances of revolution necessarily but only temporarily suspended the common law and gave to each adult (well, each adult male at least) the temporary power of voluntary election for themselves and their minor dependents as to which of the two subsequent nations they would adhere.
The rationale for the suspension of the common law is found, to no one’s surprise, in treatises of international law such as Vattel’s Law of Nations. Justice Thompson specifically cites to Vattel, Book 1, Chapter 3, Section 33 where we read that those unaccepting of a new revolutionary government

“are under no obligation at all to submit to the new government: they may quit a society which seems to have dissolved itself in order to unite again under another form: they have a right to retire elsewhere, to sell their lands, and take with them all their effects.”

To modern sensibilities that sounds very much like any ordinary right to expatriate. In the 18th century however, it was a radical idea, and allowed only as the consequence of profound political upheaval.

Justice Thompson, writing for the majority, was explicit that prior to the Declaration of Independence the law of England as to citizenship by birth was the law of the English Colonies in America.

“It is universally admitted, both in the English courts and in those of our own country, that all persons born within the Colonies of North America, whilst subject to the Crown of Great Britain, are natural-born British subjects.”

Thompson was equally explicit that the end of the suspension was demarcated by a reassertion of the English common law. He was also quite clear that the window for election was a narrow one. And once the window was closed, the rules of English common law as to citizenship by birth returned to force.

To make this point, Thompson cited in detail the case of McIlvaine v. Coxe’s Lessee, 4 Cranch 211, wherein a Mr. Coxe had missed the window of opportunity to elect British subjecthood once the State of New Jersey asserted its obligation to provide “protection” via the Act of 4 October, 1776. Hence the window of opportunity for voluntary election remained open in New Jersey for a mere 3 months, at which point

“the doctrine of allegiance became applicable to his case, which rests on the ground of a mutual compact between the government and the citizen or subject, which it is said cannot be dissolved by either party without the concurrence of the other. It is the tie which binds the governed to their government, in return for the protection which the government affords them.”

These are of course the ancient rules of the English common law. The last sentence in particular is a touchstone proving a direct correlation to the formulation that William Blackstone reflected in his Commentaries in 1765 using much the same language, though not yet adjusted to reflect a republican government rather than a monarchy:

“Allegiance is the tie, or ligamen, which binds the subject to the king, in return for that protection which the king affords the subject.”

Thompson was equally clear that they were the post-fenestral rules not just in New Jersey, but elsewhere on US soil in those territories which were under the jurisdiction and the protection of the newly independent States.

In the case of New York, the specific “window of opportunity” was almost shockingly short. For the portion of the state not under British occupation, the window closed a mere 12 days after independence with the resolutions of the convention of New York of 16 July, 1776, declaring “that all persons abiding within the State of New York, and deriving protection from the laws of the same, owe allegiance to the said laws, and are members of the state.” But during that window (in the opinion of the court) John Inglis’ father Charles had made his election for both himself and his son. He elected that they would adhere to Great Britain.

For John Inglis himself, as a very young child, it was not a case of his state automatically following that of his father via jus sanguinis. His father deliberately made a provisional election for him as was his father’s prerogative as parent of a minor child.

This point cannot be stressed too firmly and it was made explicitly by the court; the election that Charles Inglis made for his son John was not permanent but provisional. The decision in Inglis did not declare that John Inglis was an alien at birth. It did not declare that his status “at the time of descent cast” was imposed through any automatic operation of common or statutory law. The court was instead clear that even for a minor child citizenship or alienage post revolution was ultimately dependent on a conscious election by the child himself, upon reaching his own majority, to either ratify or reject the provisional election made by his father. The fact that Inglis was an alien “at the time of descent cast” was not a result of the election made for him by his father in 1776. He could just as easily have ended up a citizen of the United States in spite of that election.

Inglis (the court opined) was British because Inglis chose to be British, not his father. The court concluded that Inglis had (by his actions if not his words) made the election to confirm a British character and reject an American one. By the time of this legal action, it had long been too late to change his mind.

The case certainly created no new common law, as it is clear that the window of election was a parentheses, on either side of which English common law operated in full.

Should it be argued that Inglis created new common law simply by virtue of being case law, any alleged common law it created can have had nothing to do with the general rules of birthright citizenship, or the specific definition of natural born citizenship? The case is completely silent on the latter, and English common law regarding the former was reasserted by the time that the revolution was over and the opportunity for voluntary election had ended. While Inglis (a case which was settled a half century after the Treaty of Paris) certainly shows that the rules of that limited window could be considered and applied long afterwards, even that possibility became moot upon the death of the last member of the “divorce generation.” It could conceivably had been useful again had the Civil War ended with a southern victory, but it did not. It could conceivably be useful should some unforeseen future fragmentation of the United States occur, but that is pure speculation. In the circumstances of a stable political regime, such common law would be entirely without application or affect, not to mention redundant.

This is (of course) the reason that the majority decision in Inglis has been largely ignored in subsequent discussions and case decisions on citizenship. It provides little of value that could inform general discussions or case decisions, limited as it is to a unique period of revolution that has never had a subsequent analog. So Chancellor Sandford’s decision in Lynch v. Clark, and Justice Gray’s decision in US v. Wong Kim Ark ignored the majority ruling from Inglis as a stone from which no edifying water could be squeezed, and instead relied on Justice Story’s worthy dissent.

Inglis therefore is useless today as a challenge to the English common law definition of natural born citizen that rules Article II of the Constitution, or for determining birthright citizenship during any era of normal national circumstance. The relevant common law for those purposes, English common law, was left untouched by the events of the Revolution and by the decision in Inglis v. Sailors’ Snug Harbor.

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