Paper on lawyers who represent tax protesters

[Famspear]

I don't recall seeing this before:

Jessica Barclay-Strobel, I Fought the Law and the Law Won: How the Role of Attorneys in the Tax Protestor Movement Has Shifted From Changing the Law to Winning Acquittals

at:

http://www.williamacohan.com/PDF/JBSatt ... vement.pdf

It includes citations to J.J. MacNab, and mentions some of the players, e.g., Lowell (Larry) Becraft, Jeff Dickstein, Peter Goldberger.

She divides lawyers who represent tax protesters into categories -- for example "cause lawyers" and "pragmatists."

The conclusion of the paper:

Since its birth in the 1970s, the modern tax protestor movement has been able to attract a few adherents among the general populace but neither judicial nor legislative support. While tax protestors have primarily sought validation of their legal theories in the courts, perhaps due to naïveté or a calculated recognition that their views are too politically untenable for the legislative branch, they have failed to create a unified litigation strategy. This failure is due to both internal weaknesses – the movement's antipathy to authority generally and distrust of attorneys specifically – and the government's successes in establishing favorable precedent and selectively enjoining movement leaders' commercial speech. The repercussions of the movements' failures have been felt most harshly by its cause lawyers, who appear to disproportionately suffer the negative professional and personal consequences of representing tax protestors without also disproportionately enjoying the benefits. Indeed, as the movement's ability to influence the legal landscape continues to ebb, cause lawyers' future role in the movement will likely diminish.

--pp. 27-28, Jessica Barclay-Strobel, I Fought the Law and the Law Won: How the Role of Attorneys in the Tax Protestor Movement Has Shifted From Changing the Law to Winning Acquittals

Ms. Barclay-Strobel attended UCLA Law School, where she was Articles Editor of the UCLA Law Review, and she was admitted to the California Bar in 2011.

[Famspear]

More from the paper:

....Tax protestors have traditionally been associated with militias located in rural enclaves that reject a centralized government, but this stereotype does not accurately capture the motivations and demographics of the modern movement. Tax protestors do share certain characteristics with their militia antecedents; tax protestors are typically “white, politically conservative, evangelical Christian males whose profound dissatisfaction with government policies lead them to reject government as a whole.” However, tax protestors also typically have an above-average education and salary and a history of tax compliance. New recruits usually discover tax protestor legal theories through online communities and are impressed by promoters who “brag about years of success with no repercussions” from the Internal Revenue Service (IRS). However, the leaders of the tax protestor movement do not spread the gospel for free. Admission into the tax protestor ranks often comes at a price, literally, with leaders charging thousands of dollars for their tax advice.

Most tax protestors share a distrust of authority and respect for individualism which leaves them philosophically and emotionally disinclined to “pull together” for collective action or to build hierarchical power structures. As a result, there is a conspicuous lack of national tax protestor organizations to act as liaisons for the movement to attorneys. In fact, several of the attorneys interviewed for this article expressed doubts about tax protestors' abilities to organize because the movement's members “are not good networkers, no[r] good coalition builders.” Even those attorneys who have advanced tax protestor legal arguments in court share these doubts; Larry Becraft, for example, recalls his initial expectation that the movement's members would “do things in an organized, legal fashion,” but now believes such a coordinated effort is “out the window.”

The anti-elitism intrinsic to tax protestor ideology creates an uneasy tension between tax protestors and attorneys. Tax protestors are sometimes frustrated by attorneys who they perceive to “generally [not] respect non-attorneys.” The relationship between attorneys and the movement is also problematic because tax protestors are often “challenging [attorneys'] belief systems.” Thus, to the extent that tax protestors engage attorneys in the movement, it is often in a defensive capacity, such as when attorneys are hired to protect members, rather than in strategizing offensive efforts. Attorneys, in turn, are well-aware of tax protestors' distrust, perceiving the latter to “have no respect for lawyers and legal reasoning in general . . . they are, in some cases, quite intolerant.” Even an attorney such as Jeffrey Dickstein, who acknowledges that he has a “reputation” within the movement, feels that its members “don't really listen” to him and are frustrated by his unwillingness to advance some of their legal arguments.

-from pp. 2-3 (footnotes omitted).

[Judge Roy Bean]

In short, a very well presented thesis.

[wserra]

More from the paper:

....Even an attorney such as Jeffrey Dickstein, who acknowledges that he has a “reputation” within the movement, feels that its members “don't really listen” to him and are frustrated by his unwillingness to advance some of their legal arguments.

As we've discussed here before, Dickstein has actually been held in contempt for (among other things) flogging the rotted corpse of Benson's "16th Amendment was never ratified" nonsense - all the way to the Supreme Court. I guess the "legal arguments" that he was "unwilling to advance" were of the shape-shifting lizard variety.

[notorial dissent]

Kind of makes you wonder then where at and what he would / did draw the line.

[LPC]

From page 27, immediately before the conclusion:

Given that the law has become ossified to the point where courts reject tax protestor legal theories perfunctorily without even addressing their merits,[264] it is not clear how a cause lawyer can even engage courts‟ attention in order to persuade them to overturn precedent.

Ossified?

Are we supposed to litigate the issue of whether or not the 16th Amendment means what it says over and over again?

The footnote is to an opinion by Easterbrook:

[264] See, e.g., Coleman v. Commissioner, 791 F.2d 68, 72 (7th Cir. 1986) (Easterbrook, J.) (noting that defendant tax protestor‟s arguments “have been raised and rejected so often that this circuit now handles almost all similar cases by unpublished orders” and thus defendants “who wish to express displeasure with taxes must choose other forums”).

I think that the woman has a screw loose.

[notorial dissent]

I kind of thought that part of the package with our legal system was that established precedent was there for just that reason, so that it wasn't necessary to relitigate the same dead horse over and over and over. If every previous court that someone has trotted this particular dog and pony show in front of has said "this is a crock of hooey", why should every other court have to go through the same gymnastics, when it is the same crock of hooey the others have tossed? Did I miss something?

[Kestrel]

Most tax protestors share a distrust of authority and respect for individualism which leaves them philosophically and emotionally disinclined to “pull together” for collective action or to build hierarchical power structures.12 As a result, there is a conspicuous lack of national tax protestor organizations to act as liaisons for the movement to attorneys.13 In fact, several of the attorneys interviewed for this article expressed doubts about tax protestors‟ abilities to organize14 because the movement‟s members “are not good networkers, no[r] good coalition builders.” Even those attorneys who have advanced tax protestor legal arguments in court share these doubts; Larry Becraft, for example, recalls his initial expectation that the movement‟s members would “do things in an organized, legal fashion,” but now believes such a coordinated effort is “out the window.”

12 Lowell H. Becraft describing working with tax protestors to be “like dealing with the Trotskyites and Marxists”.
13 Steve Hempfling notes, “right now there‟s no national leader” but rather many small groups; Jeffrey A. Dickstein, “there‟s not much of a movement out there . . . the closest . . . was the Ron Paul [followers]”.
14 Robert E. Barnes, Esq., The Bernhoft Law Firm, S.C. describing working with tax protestors to be “like herding cats”; William A. Cohan, stating that he has “no idea” whether tax protestors will eventually be able to form a unified movement.

The footnotes were revealing.

That's a lot of fancy words strung together to say, "They can't get organized because they can't agree between themselves on what the law is or isn't. And they don't want to agree either."

[Number Six]

At least, Mr. Becraft has been upfront on some of the failures of the tax protester movement with his "destroyed arguments" page. This quote (Marlatt) is noteworthy:

"How can we lay blame to the Court if we failed to raise the proper arguments, or follow the Court's procedures? How can we blame the Court if we raised no argument based solidly in law, but tried instead to get a Court of law to make a ruling based upon philosophy? How can we claim the Court is in error when we failed to properly research the law and frame an argument based upon it? Far more importantly, How dare we allow a legal precedent to be established which will help defeat all other Patriots who follow after us, simply because we failed to properly proceed with our case." http://home.hiwaay.net/~becraft/Marlett.html

Crafty Larry makes an interesting point that when he and his like-minded people were about to really do damage with a well-litigated aspect of an anti-Sixteenth Amendment case, a group of idiots blew the case up by presenting it badly before he had a chance to present his legally proper version.

For those already confused about the constitutionality of income taxes, Mr. Becraft usually sends a copy of this article on the "uncertainty" of the law, and they probably become even more confused: http://home.hiwaay.net/~becraft/UNCERTAIN.html

[wserra]

Crafty Larry makes an interesting point that when he and his like-minded people were about to really do damage with a well-litigated aspect of an anti-Sixteenth Amendment case, a group of idiots blew the case up by presenting it badly before he had a chance to present his legally proper version.

There is no "legally proper version". The damage they were about to do was to blow off their own feet.

[LaVidaRoja]

A pity they didn't manage to do just that. He can still bleat that the position was not properly presented and that if HE had done it, the income tax would be gone.

[Number Six]

Crafty Larry makes an interesting point that when he and his like-minded people were about to really do damage with a well-litigated aspect of an anti-Sixteenth Amendment case, a group of idiots blew the case up by presenting it badly before he had a chance to present his legally proper version.

There is no "legally proper version". The damage they were about to do was to blow off their own feet.

Becraft expands on this argument here:

"Bill Benson invested lots of his time and money, along with several others, in developing the proof that the 16th Amendment was not ratified during his monumental work in 1984. While Bill was doing this, I did the legal research on the issue and developed a very powerful argument to support it. When finished, the first thing we did was raise the issue in the Janey Ferguson case in Indianapolis, where on January 15, 1985, Judge Nolan held that the issue was a political one the courts could not address. This of course was completely wrong and we prepared to go to the 7th Circuit with the argument.

"Most people are not aware that shortly thereafter, Bill and I went to Topeka, Kansas, and presented this issue in a state case involving the Van Skivers; in response the state dismissed its case against them. Believing that things were proceeding very good, Bill went on the road educating Americans about the issue. Lots of people were very interested in this issue, including the desperate.

"Thomas and Foster in Chicago were indicted in the spring of 1985 and raised this issue pro se without offering any proof or argument: they hollered, "the 16th amendment was not ratified", hoping they could ride the coattails of the Ferguson case, which was months ahead of them in the 7th Circuit. When they got to the 7th, we were already scheduled for oral argument, so they just weakly raised the issue with no evidence or argument. The 7th detected what these idiots were doing and ruled in their cases first and then used that as precedence against Ferguson; see United States v. Thomas, 788 F.2d 1250 (7th Cir. 1986); United States v. Foster, 789 F.2d 457 (7th Cir. 1986); United States v. Ferguson, 793 F.2d 828 (7th Cir. 1986). With friends like them, who needs enemies..."
http://www.rogershermansociety.org/open_letter.htm

[notorial dissent]

I'd like to say, that with age, wisdom comes, even to Crafty Larry, I'd really like to say that, but there just really isn't any way I can without choking laughing myself silly.

He does at least finally admit, or maybe it is realize, that the tax protester movement is not what one could generously, or even loosely call organized or cohesive, it is rather hard to miss for anyone paying a moments worth of attention, maybe he has ADD, at least it would be another excuse for him.

As to the rest of it, in your dreams Larry. He does get at least part of it, that they don't follow court procedure and / or make proper arguments, that much is indisputable, and generally quite evident from a simple reading of what they have been doing. Where Larry's hubris gets the better of his common sense, or sense of reality is in that he thinks that someone else destroyed his chance to prove his point by making a bad argument, or as he puts it "no argument based solidly in law", he goes on to ramble about philosophy, but he is really talking about fantasy at this point. The reason a legal precedent is established, if one in fact was, is that the law supports it, and not whatever fantasy he would otherwise be peddling at the court, and this is where Larry falls down flat every time. It seems to illude him that the reasons his pet theories fail, is not because the argument wasn't made properly, although that wouldn't have hurt, or that the courts are biased against him and his ideas, but that quite simply his theories are not based in law, fact, or reality, and the courts are going to continue to see it that way no matter how he dresses his mutton up pretending it is lamb. That is why these arguments, to dignify them more than they deserve, continue to fail, not that they are not presented "properly".

It is quite true that Benson wrote a book, any number of fools, incompetents, and general wastes of time write books, and in fact often do, for that reason alone the remainder sale will never go out of popularity, and even then they can't be given away. As to it being well researched, FEH, I think a third grader would have done a better job, and certainly a more honest job. Benson went looking for stuff to "prove" his theory, not to see if his theory was correct, and if he couldn't find it he stretched what was there to suit his preconceived ending, or flat out ignored things that were inconvenient to his fantasy, resulting in the crock he produced. Becraft then as a co-conspirator against reality went along and provided him with legal theory(fantasy really) to match his presupposition. Hardly a work of either scholarly or intellectual honesty on either of their parts, and the pretending by either of them it was, doesn't change that fact in the least.

I also think one can safely say that Larry's memory is convenient, for well, Larry as to how certain things have transpired over the years.

[wserra]

Becraft expands on this argument here:

And writes, of course, complete bullshit.

In The World According to Becraft, had these two usurpers only not given the Seventh Circuit the excuse it needed to avoid The Might of the Becraft, all would have been different. He doesn't explain why the Circuit wouldn't just have told him that the argument was nonsense, instead of the usurpers. After all, no less an authority than the Supreme Court had held many years before that the adoption of constitutional amendments was in fact a political question, to be determined by the Secretary of State. Leser v. Garnett, 258 U.S. 130 (1922). It's not as though the concept came out of the blue.

Each of the three appeals went to a different panel. Becraft would have it that all those judges got together and decided that, just to screw Becraft, they would issue the Ferguson (Becraft's case) opinion last. The Ferguson opinion was written by a Senior DJ from Indiana, sitting on the Circuit by designation, and all three cases were argued within two months of each other. Maybe Judge Grant just wanted to go home for a while after hearing a bunch of arguments in Chicago, and took a little longer to write the opinion. Or is that insufficiently conspiratorial?

BTW, contrary to what Becraft writes, Thomas and Foster weren't pro se; each was represented. Gotta keep the 0-for-everything intact.

[notorial dissent]

I may be guessing just a bit here since I haven't read the case in question, but in Ferguson, wouldn't the court of necessarily ruled that the argument was not supported(since Becraft claims they had nothing to back up their claim) and therefore not considerable, rather than invalid? And therefore the concept wasn't really ruled upon at all???