Posted 11 Apr 2011
Anne Tompkns' Liberty Dollar saga continues. Since the conviction of Bernard Von NotHaus for his involvement, there has been significant discussion about that case, its merits, motivations and implications.
Contrary to the reports of many commentators, the legal issue in the case was fraud rather than a tyrannical government unjustly imposing its will. In a follow up article Liberty Dollar Part III I will include a much more detailed analysis of the relevant law and its constitutionality.
But there is an aspect of this case that has the stench of tyranny which I think a lot of people smell. The motivation of the United States attorney's office, including Anne M. Tompkins, Jill Westmoreland Rose, and others, is much more suspicious.
It is possible that some of the prosecutors involved in the case have violated Rules of Professional Conduct. A violation could subject them to professional sanctions and possible disbarment. They may have also defamed Mr. Von NotHaus. I am approaching this professionally from a criminal defense perspective and a plaintiff's tort lawyer as if I were advocating for Mr. von Nothaus.
Prosecutors indict people who they think have broken the law. The indictment is the legal justification for depriving people of their liberty and property.
The indictment in the Liberty Dollar case (at paragraph 33) states:
Article I, Section 8, clause 5 of the United States Constitution delegates the power to coin Money and to regulate the value thereof. This power was delegated to Congress in order to establish and preserve a uniform standard of value.
Along with the power to coin money, Congress has the concurrent power to restrain the circulation of money which is not issued under its own authority in order to protect and preserve the constitutional currency for the benefit of the nation. Thus, it is a violation of law for private coin systems to compete with the official coinage of the United States. (emphasis added)
There is no basis in the law or anywhere else which can support the part in bold letters in any way. I will compare the prosecutor's false and misleading summary of the law to the actual law.
Article I, Section 8, clause 5 of the United States Constitution:
The Congress shall have Power ... To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;
The Constitution does not define what money, only that it is something that is coined rather than printed, but instead leaves that critical choice to the free market. On its face this clause gives the Congress the power to regulate the value of its own coinage, and that of foreign coins. This section also goes on to talk about how Congress can legally define weights and measures like a foot, inch, year, pound, kilogram, etc. There is absolutely no mention of the ability of Congress to do anything regarding private coin systems.
Clause 6 continues:
[Congress shall have power to...] provide for the Punishment of counterfeiting the Securities and current Coin of the United States.
This clearly gives Congress the power to punish counterfeiting the coins that they themselves produce, and probably to punish coins resembling genuine United States coins. Again, there is absolutely no mention of private coinage.
In fact, the definition of private coinage is that it is not the current coin of the United States. Therefore, Congress has no authority over private coinage at all and neither does any other branch.
Robert Landis, a Harvard trained attorney and successful investment banker presented in 2005 at GATA's event on American monetary jurisprudence.
THE COINAGE ACT OF 1792
The Founding Fathers were extremely serious about government officials being engaged in counterfeiting or otherwise debasing the currency. The Coinage Act of 1792 provides an excellent example of how these two clauses were implemented in legislation to answer the question of What Is A Dollar? and then provide a punishment for government officials, but not private individuals, involved in attempting to redefine that term or perpetuate a fraud on the market.
SECTION. 9. And be it further enacted, That there shall be from time to time struck and coined at the said mint, coins of gold, silver, and copper, of the following denominations, values and descriptions, viz., ...
DOLLARS or UNITS – each to be of the value of a Spanish milled dollar as the same is now current, and to contain three hundred and seventy one grains and four sixteenth parts of a grain of pure, or four hundred and sixteen grains of standard silver. ...
SECTION 19. And be it further enacted, That if any of the gold or silver coins which shall be struck or coined at the said mint shall be debased or made worse as to the proportion of fine gold or fine silver therein contained, or shall be of less weight or value than the same ought to be pursuant to the directions of this act, through the default or with the connivance of any of the officers or persons who shall be employed at the said mint, for the purpose of profit or gain, or otherwise with a fraudulent intent, and if any of the said officers or persons shall embezzle any of the metals which shall at any time be committed to their charge for the purpose of being coined, or any of the coins which shall be struck or coined at the said mint, every such officer or person who shall commit any or either of the said offenses, shall be deemed guilty of felony, and shall suffer death. (emphasis added)
Archaic political and financial relics Ron Paul and the legendary James Grant, along with many others, have begun discussing this aspect of monetary jurisprudence in the public discourse. For example, James Grant suggested as a solution to the current financial and monetary chaos in his Wall Street Journal article Requiem For The Dollar:
Replace Ben Bernanke with a latter-day Thomson Hankey. Find—cultivate—battalions of latter-day Hellmans and set them to running free-market banks. There's one more thing: Return to the statute books Section 19 of the 1792 Coinage Act, but substitute life behind bars for the death penalty. It's the 21st century, you know.
In the present case of potential prosecutorial misconduct 18 USC 486 may also be applicable:
Whoever, except as authorized by law, makes or utters or passes, or attempts to utter or pass, any coins of gold or silver or other metal, or alloys of metals, intended for use as current money, whether in the resemblance of coins of the United States or of foreign countries, or of original design, shall be fined under this title or imprisoned not more than five years, or both.
Even, assuming for the sake of argument, that 18 USC 486 is constitutional, which will be discussed more fully in Liberty Dollar Part III, there is no legal authority for “restraining the circulation of money not issued under its own authority.” 18 USC 486 appears to apply only to metal coins and not to other types of money or currency.
The Constitution clearly permits “foreign” coinage to circulate at the value, based on weight and fineness, that Congress decides. There is no basis for the assertion that such restriction is to protect and preserve the constitutional currency for the benefit of the nation.
There is absolutely nothing in the Constitution or other statutes which even claims to give Congress the power to “restrain the circulation of money” not issued under its own authority, ie: private coinage and currency.
Therefore, the assertions by Anne Tompkins have no basis in law whatsoever. We can only surmise that they were pulled out of some imaginary hat, or maybe out of somewhere else.
Fortunately, this offensive paragraph, and this paragraph only, was deleted from the indictment before it was presented to the jury, thereby avoiding the possibility to taint their decision with this blatantly false statement of the law by a United States prosecutor.
Just when you thought the drama had ended, the same false statement of law was repeated in the press release announcing the conviction:
United States Attorney Anne M. Tompkins
Western District of North Carolina
FOR IMMEDIATE RELEASE
THURSDAY, MARCH 18, 2011
CONTACT: LIA BANTAVANI
704.338.3140
Fax: 704.227.0264
DEFENDANT CONVICTED OF MINTING HIS OWN CURRENCY STATESVILLE, NC - Bernard von NotHaus, 67, was convicted today by a federal jury of making, possessing and selling his own coins, announced Anne M. Tompkins, U.S. Attorney for the Western District of North Carolina.
Following an eight-day trial and less than two hours of deliberation, von NotHaus, the founder and monetary architect of a currency known as the Liberty Dollar, was found guilty by a jury in Statesville, North Carolina, of making coins resembling and similar to United States coins, of issuing, passing, selling, and possessing Liberty Dollar coins, of issuing and passing Liberty Dollar coins intended for use as current money, and of conspiracy against the United States.
The guilty verdict concluded an investigation which began in 2005 and involved the minting of Liberty Dollar coins with a current value of approximately $7 million. Joining the U.S. Attorney Anne M. Tompkins in making today’s announcement are Edward J. Montooth, Acting Special Agent in Charge of the FBI, Charlotte Division, Russell F. Nelson, Special Agent in Charge of the United States Secret Service, Charlotte Division, and Sheriff Van Duncan of the Buncombe County Sheriff’s Office.
According to the evidence introduced during the trial, von NotHaus was the founder of an organization called the National Organization for the Repeal of the Federal Reserve and Internal Revenue Code, commonly known as NORFED and also known as Liberty Services. Von NotHaus was the president of NORFED and the Executive Director of Liberty Dollar Services, Inc. until on or about September 30, 2008.
Von NotHaus designed the Liberty Dollar currency in 1998 and the Liberty coins were marked with the “$”, the word dollar, USA, Liberty, Trust in God (instead of In God We Trust) and other features associated with legitimate U.S. coinage.
Since 1998, NORFED has been issuing, disseminating, and placing into circulation the Liberty Dollar in all its forms throughout the United States and Puerto Rico. NORFED’s purpose was to mix Liberty Dollars into the current money of the United States. NORFED intended for the Liberty Dollar to be used as current money in order to limit reliance on, and to compete with, United States currency.
In coordination with the Department of Justice, on September 14, 2006, the United States Mint issued a press release and warning to American citizens that the Liberty Dollar was “not legal tender.” The Mint press release and public service announcement stated that the Department of Justice had determined that the use of Liberty Dollars as circulating money was a federal crime.
Article I, section 8, clause 5 of the United States Constitution delegates to Congress the power to coin Money and to regulate the Value thereof. This power was delegated to Congress in order to establish and preserve a uniform standard of value and to insure a singular monetary system for all purchases and debts in the United States, public and private.
Along with the power to coin money, Congress has the concurrent power to restrain the circulation of money which is not issued under its own authority in order to protect and preserve the constitutional currency for the benefit of all citizens of the nation. It is a violation of federal law for individuals, such as von NotHaus, or organizations, such as NORFED to create private coin or currency systems to compete with the official coinage and currency of the United States.
Von NotHaus, who remains free on bond, faces a sentence of up to fifteen years imprisonment on Count Two of the Indictment and a fine of not more than $250,000. Von NotHaus faces a prison sentence of five years and fines of $250,000 on both Counts One and Three. In addition, the United States is seeking the forfeiture of approximately 16,000 pounds of Liberty Dollar coins and precious metals, currently valued at nearly $7 million.
The forfeiture trial, which began today before United States District Court Judge Richard Voorhees, will resume on April 4, 2011 in the federal courthouse in Statesville. Judge Voorhees has not yet set a date for the sentencing of von NotHaus.
“Attempts to undermine the legitimate currency of this country are simply a unique form of domestic terrorism,” US Attorney Tompkins said in announcing the verdict. “While these forms of anti-government activities do not involve violence, they are every bit as insidious and represent a clear and present danger to the economic stability of this country,” she added. “We are determined to meet these threats through infiltration, disruption and dismantling of
organizations which seek to challenge the legitimacy of our democratic form of government.”
The case was investigated by the FBI, Buncombe County Sheriff’s Department and the U.S. Secret Service, in cooperation with and invaluable assistance of the United States Mint. The case was prosecuted by Assistant United States Attorneys Jill Westmoreland Rose and Craig D. Randall and the forfeiture trial is being prosecuted by AUSAs Tom Ascik and Ben Bain Creed. (emphasis added)
Why that language was included in the press release is curious if not also nefarious. Since it was stricken from the Jury Verdict Form therefore it could not have been the basis of the conviction by the jury.
In other words, it could not have had anything to do with the case. Since it was included in the press release about the case, is Anne Tompkins asserting that it had something to do with this case? If she did, she made a false statement of fact. The materiality of these false statements of law and fact can be seen by their impact, which will be discussed below.
But Anne Tompkins did not stop there. It gets worse when she said in the press release:
It is a violation of federal law for individuals... to create private coin or currency systems to compete with the official coinage and currency of the United States.
This is an even more blatant and egregious misstatement of law. 18 USC 486 never mentions currency, only coins made of metal or alloys. As before, on its face it could not apply to other types of currency that are not metal coins such as Disney Dollars, Ithaca Hours, or Potomacs or the many other private currencies that have been and are currently in circulation. This statute is therefore clearly limited to metal coins and not paper or digital currency. It is a grotesque distortion of the statute to suggest that willing parties cannot use whatever medium of exchange they desire in a legitimate transaction.
It is Anne Tompkins' job to know the law, especially the laws that she relies on to deprive people of liberty and property. Her false statements of the law demonstrate that she is either ignorant of the law or complicit in flagrantly disregarding it. In either case, she is potentially exercising her prosecutorial power with reckless disregard.
Just like Harry Connick ,Sr., these prosecutors will probably never be held responsible in a court of law for the serious damages that they cause unless they knowingly made false representations of law or fact.
Model Rule of Professional Conduct 4.1 states:
...a lawyer shall not knowingly... make a false statement of material fact or law to a third person...
Anne Tompkins has a problem. She may have been ignorant of the law at the time the indictment was drafted, but it is hard to believe that she did not research the law and remained ignorant throughout trial. If she knew that she was restating the law improperly in the press release she would likely be violating Model Rule of Professional Conduct 4.1.
And it gets worse for her. It is even harder for her to wiggle out of knowing that her statement of fact was false. The court made a ruling on a motion to strike the offending language. The prosecutor must have been aware of that. To then issue a press release about the case which included the very same language that was thrown out and made irrelevant to the case is stating a false fact. She must have known that this fact was false.
If North Carolina rules of professional conduct are similar to the model rules, some of these prosecutors could face sanctions and disbarment.
Defamation is, essentially, publishing a false statement about a person. In the press release Anne Tompkins said that Mr. Von NotHaus' attempts were a "unique form of domestic terrorism," therefore she published the statement.
22 USC 2656f(d) defines "terrorism" as "...premeditated, politically motivated violence perpetrated against non-combatant targets..." (emphasis added).
She admits near the end of the press release that Mr. Von NotHaus' actions did "not involve violence" which, by definition, could not have been terrorism. The statement is clearly false. Mr. Von NotHaus is clearly the individual identified in the press release which was published to and read by the public.
Mr. Von NotHaus will probably not have to demonstrate any actual damages because "terrorism," as defined by Congress, is a crime. Even if malice or recklessness must be proven due to the potential public concern in this case, it should be a simple matter.
A prosecutor that doesn't know the law that she is accusing someone of breaking is at least reckless. So Mr. Von NotHaus probably has a very strong claim for defamation against Anne Tompkins.
Ultimately, even if she did not know she was making a false statement of law it does not purify her prosecutorial motives. The language that she pulled out of a hat to summarize what she thinks is the law reveals her tyrannical desire to impose dictatorial controls over the medium of exchange used by willing parties in private transactions. This is the rank tyranny that everyone smells.
The effects of Anne Tompkins' false statements are incredibly profound.
1. It has lead to widespread misinterpretation of the law. There are some complex legal principles involved which most lay people, and some lawyers, have difficulty understanding. The vast majority of people reporting on the case, and many of the commenters on Liberty Dollar Part I, were obviously convinced by those false statements. To make false statements about such a law obfuscates the rights of individuals.
2. Encourages invasive investigation and increased scrutiny of innocent people by law enforcement. The FBI has parroted the false statement of law issued by Anne Tompkins in the press release. Now, law enforcement will turn their efforts and resources to investigating innocent people who are guilty of no crime, but who the FBI incorrectly believes are guilty of a crime.
3. May effect market price of gold and silver rounds, medallions and tokens. There are millions of privately issued rounds, medallions and tokens in the US of original design (ie: not official currency of a government).
The logical conclusion of these false statements is that millions of American citizens, thousands of coin shop owners, hundreds of websites, scores of private mints, and dozens of Chuck E. Cheeses are in possession of illegal rounds, medallions or tokens.
People who are under the impression that owning, making, trading or selling such items may be illegal may decrease the demand for those items which, everything else being equal, will reduce the price. Thus, every individual or business in possession may suffer economic harm from these false statements.
4. Leads to selective enforcement. When everyone is a criminal, government actors can then selectively enforce the law against people they find undesirable. In the past it might have been foreigners, minorities and commies. Now, it might be someone who thinks the Federal Reserve is a bad idea.
5. It furthers the gold price suppression scheme. By preventing the legal barter with gold or silver rounds, more people are use FRN$s to transact. This increases the demand for FRN$s increases their purchasing power.
At the same time, it decreases the demand for gold or silver because it is made illegal to use in trade which attempts to eliminate competing goods in the currency market by introducing a barrier to entry with threat of prosecution.
6. Risk of prosecution for bartering with metal rounds, medallions or tokens. Like their warning to Liberty Dollar in 2006, these statements serve as a warning to avoid bartering with gold or silver. Now, prosecutors might be bold enough to go after anyone who barters with gold or silver, whether they smell of fraud or not.
The risk of prosecution to individuals bartering with gold or silver is much less than the risk Liberty Dollar faced after the DoJ/US Mint warning was issued in 2006. That one specifically targeted a large operation that was very visible. Plus, the smell of fraud that accompanied the operation made it a juicy target.
A general warning that applies to millions of unrelated people and millions of separate transactions will hardly incur the same level of law enforcement scrutiny over any one individual. Plus, enforcement is impractical because detection of individual transactions requires many more resources than an investigation of a going concern.
7. Enterprising tyrants will capitalize on the zeitgeist to surreptitiously implement further currency controls. The US is currently under mild currency controls, which, even in their mild form, violate basic liberties and fundamental human rights. Anne Tompkins' false statement of law might convince enough people to tacitly accept additional currency controls as legitimate and justified.
8. The constitutionality of 18 USC 486 is unresolved. The portion that applies to coins that are of original design and do not resemble official US government coins is most likely unconstitutional. Since the Liberty Dollar conviction does not address the private coinage issue, we will probably have to wait until someone else is convicted on that issue before the law can even be challenged.
Given the nonsensical state of monetary law in the US, there is no way of knowing whether that portion of the statute will be declared unconstitutional or not. Unfortunately, that means that someone else using gold or silver rounds as a medium of exchange will probably be a legal guinea pig.
These false statements of law are very dangerous to the legal rights, liberties and fundamental human rights of every American citizen. The misunderstanding of the law that prompted my previous article What Liberty Dollar Should Have Learned From The Godfather about the actual legal issues in the Liberty Dollar case is evidence of the effectiveness of those false statements. I am releasing Liberty Dollar Part II because it is a potentially serious violation of ethical rules by United States prosecutor Anne Tompkins and should be dealt with quickly and justly.
Liberty Dollar Part III will further assess the risk to individuals of continuing to barter with gold or silver by analyzing the likelihood that the statute is unconstitutional.
