Cardona defends his Motion to Dismiss, against Taitz

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Summary and Commentary by John Charlton

(Sept. 25, 2009) — Acting Attorney General George S. Cardona, lead counsel for the defense in the case Captain Pamela Barnett et al. vs. Obama et al., has replied to Dr. Orly Taitz’s Opposition Brief to his own Motion to Dismiss.

His Memorandum in Reply to the Opposition to the Motion to Dismiss, filed today, is notable for the disdain he holds  for the arguments advanced by Dr. Taitz.  He begins thus:

Much of the opposition filed by these Plaintiffs is a disjointed polemic, completely devoid of citation to any case or statutory authority. Defendants will not waste the Court’s time, or that of undersigned counsel by seeking to respond to the many irrelevant statements and references made therein.1 Rather, Defendants will focus upon the essential points at issue before this Court.

(In Footnote 1, Cardona castigates the citation of Dante Alighieri, on p. 8 of Orly’s Opposition brief as an example.)

Cardona then quickly dispatches the Plaintiff’s appeal to the 9th Amendment:

References to the Ninth Amendment to the United States Constitution are sprinkled throughout Plaintiffs’ Opposition. It appears that Plaintiffs are asserting that they have a right, under the Ninth Amendment, to bring this action, and to have their claims heard in this Court. This attempt by Plaintiffs to evade the solid wall of legal authority cited in Defendants’ Motion to Dismiss is misplaced, and fails as a matter of law. It is well established that the Ninth Amendment does not independently create a constitutional right for purposes of stating a claim. Schowengerdt v. United States, 944 F.2d 483, 490 (9th Cir. 1991); Strandberg v. City of Helena, 791 F.2d 744 (9th Cir. 1986); Aspenlind v. America’s Servicing Co., 2008 WL 686596 (E.D. Cal. 2008). The Ninth Amendment is “not a source of rights as such; it is simply a rule about how to read the Constitution.” San Diego County Gun Rights Committee v. Reno, 98 F.3d 1121, 1125 (9th Cir. 1996) (quoting Laurence H. Tribe, American Constitutional Law, 776 n. 14 (2nd Edition 1998).

Though in doing so, he ignores the text of the Amendment which reads:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

And thus, obviously, that while it does not independently create a constitutional right for purposes of stating a claim; it does admit that the People have such a right apart from those cited in the Constitution.

Then Cardona rebuts the claims to quo warrento, asserted by the Plaintiffs, on the grounds that this Court does not have subject matter jurisdiction to grant such action:

In their Opposition, Plaintiffs devote several pages to their proposition that this Court should exercise some form of Quo Warranto jurisdiction herein. Conspicuously lacking from this discussion is even one case to support this proposition. For the reasons set forth in Defendants’ Motion, this Court lacks subject
matter jurisdiction over Plaintiffs’ Quo Warranto claims herein.

His argument, herein, seems to be that the Court cannot consider any argument of the Plaintiffs which appeals to the text of the Constitution, without citing precedents; even though this is manifestly contrary to the very status of the Constitution as the Supreme Law of the Land.

Cardona then attacks the arguments advanced by Dr. Taitz regarding the redressability requirement of standing, namely the “injury in fact” requirement, saying:

With respect to the injury-in-fact requirement of standing, the arguments made by these Plaintiffs are unavailing. In the first place, Alan Keyes and Gail Lightfoot utterly fail to counter the argument that, from a simple mathematical analysis, they did not sustain any “injury-in-fact,” because they were not on the ballot in enough states in the 2008 Presidential election to even hope that they could gain the requisite 270 electoral votes to win the Presidency or Vice Presidency of the United States.

Which repeats his claim, made in the Motion to Dismiss, that election fraud in California is no crime or injury, since California alone could not determine the outcome of the national election.

Cardona the rebuts the claims of standing of the Military personnel who are plaintiffs, by citing the now infamous Judge Land ruling:

With respect to the class of “military” Plaintiffs, for the reasons set forth in Defendants’ Motion, as well as those set forth in the excellent opinion of Judge Clay D. Land in Rhodes v. McDonald, et al., No. 09-CV-106 (CDL) (M.D. Georgia September 16, 2009), plaintiffs cannot establish the requisite injury-in-fact, or redressability.3 A copy of the opinion in Rhodes v. McDonald is attached hereto for the Court’s convenience.4

This citation is evidence that the government attorneys are in full agreement with the arguments therein.

Cardona’s appeal to logic withers, when he next undertakes to rebut the grounds of standing of those Military Officers and others who are bound by Oaths to uphold the Constitution, arguing thus:

In this case, the “oath-taking” plaintiffs fail to meet the basic prerequisite for “oath of office” standing, because defendants have not imposed upon them any new, specific, and unconstitutional action that they are required to take in violation of their oath. Instead, the action that the “oath-taking” plaintiffs are being required to take, purportedly in violation of  their oath, is simply that they report for duty every day, and take orders from their military superiors, a requirement that existed before President Barack Obama was sworn into Office, and a requirement that Plaintiffs cannot allege is itself unconstitutional. It is submitted that the above-discussed limitation on “oath of office” standing is necessary, in order to avoid converting every oath-taking federal employee into a potential litigant, or Attorney General, whenever his or her interpretation of the Constitution differs from that of his or her superiors. See City of South Lake Tahoe v. California Tahoe Regional Planning Agency, supra, 625 F.2d at 238.

Here Cardona’s basic premise is that it is not unconstitutional to obey one who has usurped the officer of Commander-in-Chief; a thesis which is only valid in dictatorships and makes a mockery of Constitutional jurisprudence.

Cardona then cites case law against the arguments to expand the standing claims of U.S. taxpayers:

In their Opposition, these Plaintiffs also argue that this Court should expand the narrow concept of taxpayer standing enunciated in Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968), and declare that they have standing to bring this action. Plaintiffs cite absolutely no case authority supporting any expansion of Flast to a case such as this, and none appears to exist. Indeed, the Supreme Court has steadfastly refused to expand Flast beyond its narrow confines. See, e.g., Schlesinger v. Reservists Committee to Stop the War, et al., 418 U.S. 208, 227-228, 94 S.Ct. 2925, 41 L.Ed.2d 706 (1974); Hein v. Freedom from Religious Foundation, 551 U.S. 587, 126 S.Ct. 2553, 168 L.Ed.2d 424 (2007); Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464, 484, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982).

Here Cardona’s implicit logic turns the cry of the American Revolution, “No taxation without representation!” on its head, “Yes, you must pay taxes even if defrauded of having a legitimate president!”

Then Cardona attempts to rebut the claims of judiciability by asserting that Dr. Taitz had claimed that the result of victory in this case would result in the impeachment of the President; though he ignores that Dr. Taitz never admitted this view as her own.  Cardona summarizes by quoting what he had stated in his reply to Attorney Kreep’s arguments on this same point of law:

In short, a holding that cases such as this are justiciable would create a virtual engine of destruction of our Constitutional system of separation of powers, and of the ability of the President to effectively function.

Cardona then rebuts the claims of standing of Captain Barnett regarding her Freedom of Information Act request:

Regarding the FOIA request made by Captain Barnett, it is submitted that any FOIA claims made by her in this case must be dismissed for improper venue. As can be seen from the correspondence from the Department of State to Plaintiff Barnett regarding her FOIA request, attached as Exhibit A to Plaintiffs’
Opposition, Ms. Barnett lives in Sacramento, California, which is not within the jurisdiction of the Central District of California. Moreover, Plaintiffs have not alleged, nor could they allege, that any documents sought by them are within the jurisdiction of the Central District of California. Accordingly, venue does not lie for Plaintiff Barnett’s claims. See 5 U.S.C. § 552(a)(4)(B).

Attorney Cardona closes by pointing out that the Plaintiffs have not attempted to defend their inclusion of Hilary Clinton, Michelle Obama or Joseph Biden as defendants, and that therefore they should be removed as such from the case.

In summary, acting Attorney General has reasserted many of the arguments he made in his Motion to Dismiss, which was editorialized at The Post & Email on September 8th, under the title “A Manifesto of Tyranny.”


UPDATE: 09/26/2009 — Today Dr. Orly Taitz has filed a Motion for Leave to file a Surreply in response to  this filing by Cardona.  Dr. Taitz makes this new motion on the grounds of the Defense’s misrepresentation of Judge Clay D. Land’s ruling, and their claims that she has not addressed the redressability issue of the ‘standing doctrine’. — A surreply is a response filed after the normal timetable for filing has expired.

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