NOTICE OF REBUTTAL, BY AFFIDAVIT
TO: Robert R. Di Trolio
dba “Clerk of Court”
United States Tax Court
400 Second Street, N.W.
Washington 20217
DISTRICT OF COLUMBIA, USA
FROM: Paul Andrew Mitchell, B.A., M.S.
Private Attorney General, Federal Witness
and Criminal Investigator
DATE: August 30, 2007 A.D.
SUBJECT: numerous errors in your correspondence of August 24, 2007
Greetings Mr. Di Trolio:
My office has been retained to conduct a professional review, and to serve you with this verified rebuttal, of your written correspondence to Mr. Chester E. Davis, dated August 24, 2007 (copies attached).
In the second paragraph, you refer to “the oaths of my duties” [sic]. It is evident from the context that this phrase instead should read “the oaths of my deputies”. Please correct me immediately if I am wrong about your text.
The term “duties” also appears to be more than a mere typographical error. You will please note that the text of each separate oath required by the federal statutes at 5 U.S.C. 3331 and 28 U.S.C. 951 contains entirely different language. The latter statute is particularly relevant because it makes reference to the “duties” of court clerks in two (2) different places. Were “duties” on your mind?
The OPM Form 61 APPOINTMENT AFFIDAVITS are subject to public scrutiny, chiefly because they are required by Article VI, Clause 3 in the U.S. Constitution and by the federal statute at 5 U.S.C. 3331. The Clerk of Court is the designated legal custodian of that credential, even his own, pursuant to the federal statute at 5 U.S.C. 2906.
There is a strong presumption in favor of public access to judicial records. See Valley Broadcasting Company v. USDC, 798 F.2d 1289, hn. 4 (9th Cir. 1986). Of even greater significance here are the timeless words of the U.S. Supreme Court in Miranda v. Arizona: “Where rights secured by the Constitution are involved, there can be no rule making or legislation which would abrogate them.” Thus, your attempt to invoke unspecified “United States government personnel regulations” holds no water, because “regulations” cannot abrogate the U.S. Constitution. Clearly, the Oath of Office Clause secures to all Americans the fundamental Right to enjoy unrestricted access to the two (2) separate Oaths that are required by the federal statutes at 5 U.S.C. 3331 and 28 U.S.C. 951. Cf. Supremacy Clause here.
You, on the other hand, have cited no authority for your claim that the latter credentials “are not subject to public scrutiny.” Thus, you appear to have fabricated that claim out of thin air, and you also appear to be protecting all deputies who presently lack either an APPOINTMENT AFFIDAVIT and/or an OATH OF OFFICE.
Impersonating an officer of the United States (federal government) is a federal felony violation of 18 U.S.C. 912. Aiding and abetting such impersonation is a felony violation of 18 U.S.C. 2. Falsifying or concealing a material fact that is within the jurisdiction of any branch of the federal government is another felony violation of 18 U.S.C. 1001. Transmitting false and/or fraudulent court “process” via U.S. Mail is mail fraud, another felony violation of 18 U.S.C. 1341. Moreover, mail fraud is also one of the RICO “predicate acts” itemized at 18 U.S.C. 1961 et seq. See also 28 U.S.C. 1691 in this context.
Your third paragraph also makes a number of serious legal errors. You wrote that “all of these are courts established pursuant to Article III of the United States Constitution.” Do you even bother to read the statutes in question, before drafting such erroneous claims?
Yes, it is correct that the Supreme Court was originally established by Article III. As such, it is the only federal court that was actually created by the U.S. Constitution. Consequently all other federal courts must be created by one or more Acts of Congress.
The federal statutes which
established the Courts of Appeal do not identify their constitutional
origins. See 28 U.S.C.
§§ 41-49. So, we must confer with standing Supreme
Court decisions to supply the missing information. In Old Colony Trust Co. v. C.I.R., 279 U.S. 716, 722 (1929), the high Court held
that all Circuit Courts are constitutional
courts i.e. created under Article III.
Similarly, the federal statute which established the United States District Courts (“USDC”) inside the 50 States of the Union does not identify their constitutional origins either. See 28 U.S.C. 132. Again, we must confer with standing Supreme Court decisions to supply the missing information. In Balzac v. Porto Rico, 258 U.S. 298, 312 (1922), the Supreme Court held that the USDC originate in the Territory Clause at Article IV, Section 3, Clause 2.
Bankruptcy courts are expressly established as “units” of the USDC. See 28 U.S.C. 151. As such, their constitutional origin must also be the Territory Clause, likewise pursuant to Balzac supra and similar standing decisions of the Supreme Court, of which there are several.
The federal statute establishing
the Court of Federal Claims states expressly that its constitutional origin is Article I not Article III. See 28 U.S.C. 171: “The court is
declared to be a court established under article I of the Constitution of the United States.”
You are partially correct to argue
that the Tax Court is established under Article I, because the
federal statute which created it expressly identifies Article I as its present
constitutional origin. See IRC 7441: “There is hereby established, under article
I of the Constitution of the
United States, a court of record to be known as the United States Tax
Court.” Your citation to “26 U.S.C.
7441” is not legally enforceable as such, however, because Title 26 of the U.S. Code has
never been enacted into positive law by any Act of Congress. See 1 U.S.C.
101 in this context (defines “Act of Congress”).
You then try to draw more erroneous
conclusions from your pivotal errors above when you claim that “neither I nor
my deputy clerks are required to execute the Oath of Office mandated by 28 U.S.C.
951.” In clear contradiction to your
erroneous conclusions, that federal statute makes no exceptions for the United
States Tax Court, because it refers expressly to “each clerk of court and his
deputies”. Your letterhead reads “Clerk of Court” and
the title you are claiming -- “Clerk of Court” -- is exhibited immediately
below your signature.
You also err again when you claim an
exemption under the section
552(f) of the Freedom of Information Act (“FOIA”). 5 U.S.C.
552(f) does not tell the whole story when defining an “agency” because that
subsection refers to another federal
statute at 5 U.S.C. 551(1).
The latter statute expressly excludes “the courts of the United
States” at 5 U.S.C. 551(1)(B). If you are claiming exemption from the
FOIA because of that specific exemption, then
the U.S. Tax Court must be a “court of the United States” whose clerks are
required by 28 U.S.C. 951 to execute a separate OATH OF OFFICE, in
addition to the APPOINTMENT AFFIDAVIT required by 5 U.S.C.
3331. You can’t have it both
ways: is it a “court” when you want it
to be, and “not a court” when you don’t want it to be? We don’t think so!
You also state that you “will
certify that a proper oath of office was executed by each of my deputies.” When “will” you do that? However, because your letter contains no
CERTIFICATION or VERIFICATION paragraph that conforms to 28 U.S.C.
1746(2), it does not “certify” anything, your protestations to the
contrary notwithstanding. And, you
cannot “certify” that claim in good faith now, because you have already argued
-- incorrectly -- that your deputies are not required to comply with the
separate OATH OF OFFICE mandated by 28 U.S.C.
951. We now take that to mean they
don’t have any such OATHS OF OFFICE.
Particularly relevant are the Historical and Statutory Notes under 28 USCA
951, which are identical to those Notes
as published on the Internet at Cornell’s electronic version of the U.S. Code: “This section is applicable to the Supreme
Court and to all courts established by Act of Congress” [emphasis
added]. Since the Tax Court was established by Act of Congress at
IRC 7441, 28 U.S.C.
951 is applicable to all clerks and deputy clerks who are now, or were,
employed by the Tax Court.
See Acts at 68A Stat. 879 (Aug. 16, 1954) and 83 Stat. 730 (Dec. 30,
1969).
Similarly, at 28 USCA
951 under “Research References” we find a citation to 15A Am.Jur.2d
(2000): Clerks of Court, Section 3: Eligibility and Qualifications, to
wit: “The form of oath to be taken by clerks
of federal courts is prescribed by statute.” Then, that Section 3 of Am.Jur.2d
directly cites 28 USCA 951!
For your information, we also investigated The Constitution Annotated as published by the Government Printing Office. Under the Oath of Office Clause we found citations to McCulloch v. Maryland, 17 U.S. 316, 416 (1819); Ex parte Garland, 71 U.S. 333, 337 (1866); and Bond v. Floyd, 385 U.S. 116 (1966). As you should know, these are binding Supreme Court decisions i.e. binding on you!
The alleged OPM Standard Form 61 that you attached to your letter to Mr. Davis also exhibits serious problems. First of all, there is evidently no OMB control number or expiration date on the Form 61 that you signed. Pursuant to the clear legislative intent of the Paperwork Reduction Act, this missing OMB control number automatically renders that form a “bootleg request”. In other words, it’s a counterfeit.
Moreover, a valid APPOINTMENT AFFIDAVIT must be administered by a person specified at 5 U.S.C. 2903. Your “Form 61” has completely removed that requirement, when it is clearly stated on all APPOINTMENT AFFIDAVITS that we have received to date from DOJ, in reply to our numerous FOIA Requests for the credentials of federal court officers. Therefore, it does not appear that one “Donna Lewis” dba “Human Resources Specialist” is qualified to witness your “Form 61” because she is not a person specified at 5 U.S.C. 2903. It’s a counterfeit!
For all of the reasons stated above, your erroneous letter dated August 24, 2007 and counterfeit “Form 61”, as transmitted via U.S. Mail to Mr. Chester E. Davis, are hereby formally refused.
Please take note that the following is a legally proper and sufficient VERIFICATION paragraph, based on our many YEARS of litigation experience as a Private Attorney General under 18 U.S.C. 1964(a):
VERIFICATION
I, Paul Andrew Mitchell, Sui Juris, hereby verify, under penalty of perjury, under the laws of the United States of America, without the “United States” (federal government), that the above statement of facts and laws is true and correct, according to the best of My current information, knowledge, and belief, so help me God, pursuant to 28 U.S.C. 1746(1). See Supremacy Clause (Constitution, Laws and Treaties of the United States are all the supreme Law of the Land).
Dated: August 30, 2007 A.D.
Signed: /s/ Paul Andrew Mitchell
__________________________________________________________
Printed: Paul Andrew Mitchell, B.A., M.S., Private Attorney General
All Rights Reserved without Prejudice
I, Paul Andrew Mitchell, B.A., M.S., Sui Juris, hereby certify, under penalty of perjury, under the laws of the United States of America, without the “United States” (federal government), that I am at least 18 years of age, a Citizen of ONE OF the United States of America, and that I personally served the following document(s):
NOTICE OF REBUTTAL, BY AFFIDAVIT
by placing one true and correct copy of said document(s) in first class United States Mail, with postage prepaid and properly addressed to the following:
Robert R. Di Trolio
Office of Chief Judge
dba “Clerk of Court” United States Tax Court
United States Tax Court 400 Second Street, N.W.
400 Second Street, N.W. Washington 20217
Washington 20217 DISTRICT OF COLUMBIA, USA
DISTRICT OF COLUMBIA, USA
Mr. Chester E. Davis U.S. Postal Inspection Service
c/o P.O. Box 2110 Attention: Postmaster General
Clackamas 97015 c/o U.S. Post Office
OREGON, USA Washington 20217
DISTRICT OF COLUMBIA
Judiciary Committee Judiciary Committee
U.S. House of Representatives U.S. Senate
Washington 20515 Washington 20510
DISTRICT OF COLUMBIA, USA DISTRICT OF COLUMBIA, USA
[See USPS Publication #221 for addressing instructions.]
Dated: August 30, 2007 A.D.
Signed: /s/ Paul Andrew Mitchell
__________________________________________________________
Printed: Paul Andrew Mitchell, B.A., M.S., Private Attorney General
All Rights Reserved without Prejudice
