Here is an email exchange between Orly and me this morning. I have been begging her to bring the military Complaint for Declaratory Relief as I conceived and wrote it. She informed me, she had too little faith to bring this, and was unwilling to jeopardize her license to practice on what could be a frivolous case.

In the meantime, she has attempted to enforce President Bush’s EO against BO notwithstanding the Order explicitly stated it created no such enforcement rights; and, even if it had, did not apply to government officers, like the POTUS. (She had called me on the Saturday before the inauguration, saying she intended to serve subpoenas under the Order. I asked when she intended to serve these subpoenas; “Wednesday morning.” I told her not to waste her time drafting these orders unless she could serve them before noon on Tuesday, as BO would rescind all Executive Orders he could, at 12:01 on Tuesday. She argued, the D.C. courts are closed on Monday and Tuesday; I told her to go somewhere else. Unfortunately, I hadn’t read the EO; I was merely advising her as to the futility of trying to enforce an EO issued by President Bush, on Wednesday morning, under a ‘President’ Obama.) (Note: for the first time, Orly shifted the burden of proof from Plaintiffs establishing BO is not a NBC, to having BO establish, he is, the tack I take in my military Complaint.)

So, this morning, given BO’s response to the Hollister case, she sent me the following email. (Note: Berg borrowed my idea of the military Plaintiff but, changed the cause of action to Interpleader.)

I was waiting to see what BO’s lead attorney Robert Bauer will write in response to Berg’s military complaint. As I expected, in his motion to dismiss he notes several hurdles common for all of these cases.
One of them, that the court has no jurisdiction and the plaintiffs have no standing. As discharged members of the military their standing is questionable. He is saying that any injury is highly speculative. Bottom line, the decision by the judge will be merely an advisory opinion, which is impermissible. Even though Dec relief does not require injury in fact, there still has to be a standing and real controversy. He is saying that according to Lujan v Wildlife the damage is not imminent, but rather conjectural or hypothetical. Even in Dec relief the has to be a concrete or actual invasion of a particular right. I suspect the judge will decide for BO. That is why I am still working on proper court, jurisdiction, standing and points and authorities. If I go with guns blazing without proper legal ground, the case will be res judicata and deemed to be heard on the merits. We will loose both the plaintiffs and the whole line of attack. We can’t afford to do that. I might be able to go to SCOTUS on this one on original jurisdiction. One of my active people has met with the top brass at the Pentagon. We are waiting to see their response, will they let an active military to seek dec relief on this issue without exposing him to court martial. It is not just him: there is a family and children. It is a catch 22: retired military will be dismissed quickly, but active faces serious repercussions.

Here was my response.


“As I expected, in his motion to dismiss he notes several hurdles common for all of these cases.” Then why did you expand the set of Plaintiffs to include a 77-year-old Plaintiff; or someone retired as opposed to on inactive duty status? If you will note my original memo on the subject, the ideal Plaintiff would be someone about to be or anticipated to be called up to active duty status. National guard would have been great. You expanded the set of Plaintiffs, against my advice.

I will read the response. I have already been asked to comment on my blog.


Then, I read BO’s response in Hollister.


Thank goodness for Berg. Between his first case, which had no chance of success; and this last one, using my idea of the military Plaintiff but the wrong cause of action; he forced the hand of BO’s attorneys, which crystallized for me exactly how to counter them, on all counts. The Plaintiff I described in my initial military memo is the winner. And my decision to focus on the FactCheck angle in my military Complaint turns out to be pure genius. We will prevail, just as soon as we bring the Complaint I conceived and drafted.


Finally, let me clarify for all of you that, the Plaintiff who faces no real jeopardy is not a valid Plaintiff; the case brought by a Plaintiff in no jeopardy fails to present a valid case or controversy to the Court. In other words, by claiming she is attempting to insulate the Plaintiff from liability in advance of filing the military Complaint, Orly is essentially depriving Plaintiff of the standing required to sue in the first place, and the Court of the jurisdiction to hear the suit.

I will elaborate later on today.


  1. jbjd,

    I am willing to offer my standing if a consent form can be constructed that doesn’t paint the plaintiff as seditious or disloyal.

    SFC (name withheld by ADMINISTRATOR)

    SFC: I am working on this. ADMINISTRATOR

  2. tibbs says:

    Yes.We’ve noticed your pleas in the comments at Orly’s blog,which she never commented upon.Surprised you actually are in contact with her.Read the open thread at IO.

  3. jtx says:

    jbjd –

    Just remember that the Defense will claim “no harm, no foul” if none of the Plaintiffs have been ordered to do something “dramatic”. They may even make the claim that if there is no service person under court-martial there can be no “harm”.

    Please don’t forget to counter that beforehand. And the Ron Polarik 60 (or so) page paper definitively destroys the COLB nonsense of FightTheSmears, FactCheck and the other 2 sites which were all clearly shown to be from the same original source.

    jtx: Thank you for the ‘heads up.’ Keep in mind, my military lawsuit does not argue one way or the other that an opinion offered by Annenberg Political FactCheck as to BO’s Constitutional eligibility is legitimate. It merely intends to establish for the court that, Plaintiffs could reasonably believe the record fails to establish their opinion is legitimate, given the nexus between BO and the Annenberg Foundation. As to the issue of “standing,” I assure you, I have researched the parameters of the federal Declaratory Judgment Act and, my military Plaintiffs have standing. (Others proposing to bring suit using my template have expanded my definition of Plaintiff but, there is nothing I can do about this. For example, I would not have offered up Hollister as a Plaintiff, given his retirement status. But if Mr. Berg had not filed that case then, we would not have exposed that, the best comeback BO has to offer the court is a claim, ‘I am legitimate because Annenberg, my former employer, says I am.’) ADMINISTRATOR

  4. Gordon says:


    I have been wondering if the attorneys protecting the Usurper aren’t guilty of aiding and abetting an ongoing illegal/criminal/treasonous act?

    Isn’t there some legal/ethical limit on their involvement in protecting an individual who they know, or should have “reasonably” known,is engaging in ongoing illegal activity, largely because of the protective services they are themselves providing?

    Even mob lawyers have to stay at arm’s length to avoid concurrently aiding and abetting the crimes their clients may engage in. Are their no standards of decency left at all?

    It is one thing to retrospectfully defend a client who may have already committed a past crime, but, it would seem, it would be abother matter entirely to protect a person and withhold information that enables that person to continue in the ongoing commission of a crime.

    I know common sense and common decency have no standing in a court of law, but I was wondering if there isn’t some kind of limitation or accountability on the part of attorneys.


    Gordon: Interesting idea. Coincidentally, I was thinking along these same lines just this morning, based on representations BO’s lawyers made to the Court about FactCheck in the case of Hollister, represented by Attorney Berg. According to the terms of their licenses, attorneys have concurrent obligations to zealously represent their clients and to comport themselves as officers of the Court. Here is an interesting comment by Edwin Vieira, to John Connolly at the Philadelphia Bulletin, last December, concerning this dual role. “If he were my client and this question came up in civil litigation, if there was some reason that his birth status was relevant and the other side wanted him to produce the thing and he said ‘no,’ I would tell him, ‘you have about 15 minutes to produce it or sign the papers necessary to produce the document, or I’m resigning as your attorney,” said Mr. Vieira. “I don’t think any ethical attorney would go ahead on the basis that his client could produce an objective document in civil litigation [and refused to do so].” Let’s talk some more here on this blog about this issue. ADMINISTRATOR

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