Chrysler Bankruptcy: Donofrio: Defense Distracting Over “Psychoanalyzed” Birther Allegations
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Sunday, January 24, 2010 Update:
Attorney Leo Donofrio has posted this story on his site as well as a trackback to this posting…
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In what is a blogosphere exclusive, attorney Leo Donofrio, in conjunction with attorney Stephen Pidgeon, have filed a Response to Debtor’s (Defense’) Objection to Reconsider the Court’s Objection.
Update: Lead Plaintiff James Anderer is set to be on the CBS Evening News this evening and (last-minute cut, per Mr. Anderer) on Fox with Neil Cavuto on Monday.
Update: This particular bankruptcy suit — originally broke by Portland Civil Rights Examiner’s Dianna Cotter – involves 76 ex-Chrysler dealers who believe that the Judge involved with the case, Robert J. Gonzalez, committed an unintentional fraud by misinterpreting Fiat’s executive, Alfredo Altavilla’s statement that restructuring had to occur before the Fiat purchase of Chrysler could occur. However, Mr. Altavilla never actually stated that restructuring had to occur before the deal could close. In his rejection Opinion, Judge Gonzalez made it appear as if Mr. Altavilla did testify that rejections were necessary for the deal to close.
Here’s the actual testimony:
Please review the actual testimony of Altavilla (May 27, 2009 Hearing Tr. at 352) which is referred to in both Footnotes 18 and 21 of the Court’s Rejection Opinion:
Q. If this transaction closes without an absolute requirement of a particular number of dealers that are being terminated, would Chrysler still go through with this deal — I mean, rather, would Fiat still go through with this deal?
A. The answer is that a restructure needs to occur. Whether it occurs before or after the closing of the deal is not a material difference.
The following is the Defense’ OBJECTION OF DEBTORS AND DEBTORS IN POSSESSION TO AMENDED MOTION OF CERTAIN DEALERS TO RECONSIDER THE COURT’S JUNE 9, 2009 REJECTION ORDER AND JUNE 19, 2009 REJECTION OPINION:
The following is the Plaintiff’s RESPONSE TO DEBTOR’S OBJECTION TO MOTION TO RECONSIDER THE COURT’S JUNE 9, 2009 REJECTION ORDER AND JUNE 1 REJECTION OPINION:
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As Leo Donofrio pointed out in an email to The Right Side of Life, the Defense decided to inject a bit of Alinsky-ite tactic by specifically referencing Messr. Donofrio’s and Pidgeon’s past litigation concerning presidential eligibility as the basis for why they have waited to bring such a petition now (Defense’ Objection, page 8, paragraph 13):
13. Because the Movants offer no explanation whatsoever for their election not to appeal or for their extended delay in bringing their Motion (13), they have failed to meet their burden.
The referenced footnote on the same page reads as follows:
Given their extreme lateness and the absence of any new development in the record or law, it is unclear what has motivated the Movants’ sudden change of heart and request for relief at this late juncture. Although the Debtors have no independent knowledge of these matters, the Debtors have taken note of certain public statements connecting the Motion to a crusade involving the Movants’ counsel to challenge Barack Obama’s legitimacy as President of the United States. For example, one report has stated:
Birthers are launching yet another scheme to challenge President Obama’s legitimacy as President of the United States. The scheme involves a legal maneuver known as “quo warranto,” a prerogative writ requiring the person to whom it is directed to show what authority he has for exercising some right or power (or “franchise”) he claims to hold. This new attempt to get at Obama is a circuitous affair, centering on the Chrysler bailout, and Obama’s authority to use Troubled Asset Relief Program funds to bail out Chrysler. Former Chrysler dealers who lost their businesses as part of the restructuring of the automobile company are filing a legal challenge to that restructuring in bankruptcy court. . . . The attorneys of record are . . . Leo Donofrio . . . and Stephen Pidgeon.
Michael Stone, Quo Warranto: Return of the Birthers, EXAMINER.COM, http://www.examiner.com/x-4383-Portland-Progressive-Examiner~y2009ml2d9-Quo-warranto-Return-of-the-Birthers (last visited January 6,2010); see also Bob Unruh, Closed Chrysler Dealers to Drive Obama’s Eligibility, WORLDNETDAILY, Dec. 8, 2009, http://www.wnd.com/index.php?fa=PAGE.view&pageld=l18403 (last visited January 10, 2010) (“Two lawyers have joined forces to assemble a case challenging in U.S. bankruptcy court the federal government’s . . . bail out [of] Chrysler and in doing so may have created a scenario that finally will bring to a head the issue of Barack Obama’s eligibility to be [P]resident.”)
The corrected link for the Michael Stone piece is http://www.examiner.com/x-4383-Portland-Progressive-Examiner~y2009m12d9-Quo-warranto-Return-of-the-Birthers.
In his response, Leo Donofrio states the following (Plaintiff’s Response, pages 3-4, beginning second full paragraph):
Finally, before we begin our legal argument in response to Debtors’ Objection, we draw the Court’s attention to Page 8, Footnote 13 of Debtor’s Objection memorandum. In that Footnote, Debtors’ Counsel improperly attempts to psychoanalyze the motivations of our clients in bringing the Motion to Reconsider by making reference to news reports which discuss non-related Constitutional causes which have absolutely nothing to do with the Motion before the Court. Footnote 13 is an entirely improper attack upon Movants’ and their Counsel by way of reference to controversial lawsuits which Movants’ Counsel have been involved with. Such distractions serve no purpose before this Court other than to distract, confuse, and delay justice by throwing dirt in the Court’s eyes. Our Motion pointed out that the Government never requested dealers be rejected and so this Footnote serves no purpose other than to muddy the waters in which this Court must now swim. We request this Footnote be stricken and that Debtors’ Counsel be required to resubmit their memorandum without it.
Furthermore, if Debtors’ Counsel has not comprehended the true motivation for this Motion, we would remind them that our clients lost their businesses when the Debtors instituted Project Tiger and ripped our clients’ livelihood from them along with approximately 40,000 community jobs during this most difficult recession. Our clients are suffering. Their communities are suffering. That suffering is directly motivating this Motion. Should the Rejection Opinion be reversed, our clients will find relief from that suffering.
Mr. Donofrio goes on to say in his email that the only thing the Plaintiffs said about the government in the Motion was that they (the government) did not ask that the dealers be rejected, suggesting that the premise of the dealership losses — as described in the first paragraph of this posting — is based on the Court’s apparent misstatement of key testimony (Plaintiffs’ response, page 4).
Mr. Donofrio lays out the case for “misstatement” versus “misinterpretation” on page 6 of the Plaintiffs’ response:
Debtors’ allegation that we have taken issue with the Court’s interpretation of this testimony is misplaced. It’s not that we take issue with the Court’s interpretation of testimony, it’s that we take issue with the Court’s misstatement of the testimony. Footnote 21 makes it appears as if the witness stated that restructuring needed to occur for the sale to close. The answer is parsed after the word “occur”. But the very next sentence (as properly described in Footnote 18) continues the response to the very same question. There was no intervening question. It’s all part of the same Q & A. Footnote 21 therefore improperly supplements the record. This is not merely ”fact finding” as Debtors’ Counsel has alleged, this is fact making which is improper in the extreme and exhibits a reckless disregard for the truth.
Furthermore, the record of the case is absolutely devoid of any specific testimony which opposes the fact that no relevant party ever requested dealers be rejected. But Footnote 21 gives the fraudulent appearance that Altavilla’s testimony provides just such a request. It doesn’t. The witness testified that whether restructuring occurred before or after the closing was not a “material difference”. Those words are direct, unambiguous and perfectly responsive to the time sensitive question asked on cross- examination. The core issue before this Court was whether the purchaser required that the seller restructure the dealership network as a condition precedent to the deal closing. Since the record is clear that no other party (US Government, Canadian Government or VEBA/UAW) requested dealer rejections, then without the purchaser making such a request, there was no sound reason for the Debtor to reject the dealers if the purchaser was willing to close the deal without dealers having been rejected.
In my non-attorney view, the idea that the Defense would literally invent a basis for the rationale of why the Plaintiffs are coming forward at this point based on completely unrelated issues is indefensible and is very similar to the modus operandi of many “opposition” commenters on this blog. Really, it is akin to saying that one is incapable of holding a particular viewpoint because said petitioner has exhibited views that are considered unconventional, esoteric or out of the mainstream (in some cases, even worse pejorative-sounding language).
While it is true that Messrs. Donofrio and Pidgeon have already announced their intentions to file a quo warranto petition in the District of Columbia, that fact is judicially irrelevant to this case and deals with a completely unrelated issue. In fact, this site has already documented the fact that the Chrysler bankruptcy petition will be resolved based solely and completely upon the dealers’ wishes, which, in theory, could involve a settlement (which would fly in the face of the concept that somehow presidential eligibility has any basis for pushing forward on a Chrysler bankruptcy case).
I think Mr. Donofrio is exactly right in his response. Psychoanalysis, as he puts it, has absolutely no bearing in attempting to divine the intents of the petitioners, as the Defense has tried to construe things. In other words, such mind-reading is the equivalent of essentially saying, “Well, all that the petitioners are really trying to do is get rid of the President, and you know that’s the basis for this move. Besides, don’t the dealers whom they represent know that these two attorneys are really nothing but BIRTHERS??? Come on. Someone who thinks like that couldn’t possibly have a reasonable point in all of this.”
Again, how rescuing ex-Chrysler dealerships from alleged wrongs that might have been done by the Judiciary has anything to do with presidential eligibility is completely beyond me.
Updated commentary: Why would the Defense wish to bring up unrelated issues for this petition if they had a strong case against the Plaintiffs? Up to this point I dismissed the idea of there being conspiracies shielding this President from questions regarding his past as being fantasy. However, I am not so sure about this any more. The opposition would only go ad hominem in this way if they were running out of rhetorical ammunition with which to defend themselves.
Look for additional coverage coming soon from Dianna Cotter as well as ThePostEmail.com.
Update: ThePostEmail recently posted on this story.
See my highlighted coverage in my Chrysler Bankruptcy category.
Cross-posted at FreeRepublic.com.
-Phil
Subscriptions -=- Twitter: @trsol -=- email: phil [at] therightsideoflife [dot] com
Photo courtesy Examiner.com
The copy is here: http://www.scribd.com/doc/26509504/
Opinion denying motion for reconsideration.
The arguments advanced by the attorneys for Old Car Co. (Chrysler) must not have been too distracting, because they won over the Court. Leo and Steve’s motion was DENIED:
02/05/2010 6342 Order signed on 2/5/2010 denying Rejected Dealers’ motion for reconsideration of the June 9, 2009 rejection order and the June 19, 2009 rejection opinion (Related Docs # 6132[RECAP] and 6341 ). (DePierola, Jacqueline) (Entered: 02/05/2010)
02/05/2010 6341 Opinion signed on 2/5/2010 denying Rejected Dealers’ motion for reconsideration of the June 9, 2009 rejection order and the June 19, 2009 rejection opinion (related document(s) 6132[RECAP] ). (DePierola, Jacqueline) (Entered: 02/05/2010)
I will provide Phil a copy of the Opinion as soon as I receive it.
MGB – I am sorry they did not use the words you would like. Their statement combined with that of Fukino is enough for any reasonable person. You can parse all you like, you still have not one single piece of evidence that anything they have said is untrue – and plenty that confirms it is.
bystander: You’re not doing any research for me. I have long known about that article at FactCheck BLOG–in fact, I saw it the same day that it was posted (in its original form, before they downsized the photos and removed the exif data).
I did NOT say that no “journalists” have ever been named. I said and I repeat that not one person has EVER said on the record that the photographed COLB is a Hawaiian-issued and certified, unaltered, COLB. Not one NAMED person.
The same is true for the digital image of something that purports to be a scan of a Hawaiian-issued and certified, unaltered, COLB.
So now there’s a caption on the blog that contends that Miller is the person holding the “birth certificate,” which a COLB is not. In any case, where’s the statement by either Miller or Henig affirming on the record that they know for a fact that that document was issued and certified by the state of Hawaii and that it was unaltered when they photographed it?
Let’s talk for a moment about the accuracy of captions. Look at the caption under the first photo that FactCheck offers, on the left side of the page. It says, “Birth certificate photo 1: Fold and seal (.jpg 1.35 mb)” Is this caption accurate? Hardly; the true size of that photo is 200kb. Download it yourself and see. The resolution was greatly decreased, after people began to analyze the photos. Why?
Here’s what they say about that document: “We conclude that it meets all of the requirements from the State Department for proving U.S. citizenship.”
So, you see, (like you) they talk about State Dept. requirements for citizenship. NOT Constitutional requirements for POTUS. In fact, any naturalized citizen could meet State Dept. requirements for proving citizenship, and still remain INELIGIBLE to be POTUS.
They go on: “Claims that the document lacks a raised seal or a signature are false.”
So, you see, they say it has A raised seal and signature. But where do they affirm that they know for a fact that the seal and signature were placed upon that document BY the State of Hawaii DOH AND that the seal IS the seal used by the DOH? Nowhere. Why? Because if you examine this so-called raised seal, it is NOT the seal used by the Hawaiian DOH.
They say, “we can attest to the fact that it is real and three-dimensional and resides at the Obama headquarters in Chicago. We can assure readers that the certificate does bear a raised seal, and that it’s stamped on the back by Hawaii state registrar Alvin T. Onaka.”
Again, they say it’s a real paper. They say it bears A raised seal and a stamp reading “Alvin T. Onaka”. But they don’t say that they know for a FACT that the state of Hawaii placed that seal and signature on that piece of paper, although they do imply that Onaka stamped it himself, which of course is untrue because even IF the DOH stamped that paper, Onaka himself would not have done it. A clerk would have. But there’s no way for them to know that the DOH stamped it. While the DOH may have, there’s no way for FactCheck to know, unless they were there at the time.
Nobody at the Hawaiian DOH has EVER stated that that paper was produced and certified by them. In fact, they said they cannot say what the so-called scan of a COLB represents. Since the embossed seal that FactCheck staffers saw and photographed on that piece of paper is NOT the seal of the state of Hawaii, then one must question whether that stamp is legitimate, too. One must also wonder why the photo of the stamp is isolated from the rest of the paper. Why not photograph the ENTIRE back side? What else might be on the back side that they don’t want us to see? Or perhaps the back side of the paper that they photographed from the front is blank.
They say, “You can click on the photos to get full-size versions, which haven’t been edited in any way, except that some have been rotated 90 degrees for viewing purposes.”
False, they removed the exif data (which indicates details such as the date and time of the photos, even what sort of camera was used) and also reduced the size of the photos, greatly reducing the resolution and the ability of others to examine the photos in depth. Why?
They say, “The certificate has all the elements the State Department requires for proving citizenship to obtain a U.S. passport.”
So they set out to prove his eligibility under the Constitution to be POTUS, but all they end up with “proving” is that he has some document that purports to be sufficient to get a US passport. Again, any naturalized citizen, while eligible for a passport, is NOT eligible to be POTUS. So what did they prove and WHY did they focus on the misdirection of mere citizenship instead of natural born citizenship? Why? This, to my mind, is the most significant “tell” of the entire piece.
They footnote the State Dept. requirements for a passport, but NOT the Constitution’s requirement for eligibility for the Oval Office. Why?