With the cloud of contempt of court proceedings hanging over our heads since September of 2017, the moment finally arrived for Michael Ellis and me to travel to Washington, D.C. to appear before Judge Christopher Cooper on March 1, 2018 to show cause why we should NOT be held in contempt of court for allegedly violating his April 19, 2017 nationwide, permanent injunction against us.

The two, post-injunction, declaratory judgment lawsuits we filed (17-1720 McNeil, et al v. Harvey, et al and 17-2602 McNeil, et al v. Brown, et al) are what precipitated the DoJ’s Motion for Order to Show Cause.

So, on February 28, 2018, I woke up at 3:00am, called Uber at 4:00am, and arrived at Dallas-Fort Worth (DFW) airport around 4:30am to catch our flight to Washington, D.C.  Michael met me at the gate and we boarded the airplane a few minutes before 6:00am for our 3 hour flight to Washington Reagan airport (DCA).

We arrived around 10:00am Eastern time and grabbed a bite to eat at the airport before heading out to get our day started. We couldn’t check into our hotel until 3:00pm, so, we decided to take Uber to the courthouse, located at 333 Constitution Avenue NW in downtown Washington, D.C.  We did this to scout the location of Courtroom #27, Judge Cooper’s court, so we would know where to go the next day.

We walked into the courtroom right before the next hearing, so, we took a seat at the back of the courtroom to get an idea of how he conducted hearings, as well as to gauge his demeanor. To our surprise, he was quite professional and polite to both the Plaintiff and Defendant, allowing them both to speak, interrupting only to ask clarifying questions. The hearing lasted one hour.

Afterward, Michael and I decided to walk to the hotel to see if we could possibly check in earlier than 3:00pm. It was a beautiful, cool, sunny day as we made our way across the National Mall, with the U.S. Capitol building on one end and the Washington Monument on the other.

Bob McNeil and the U.S. Capitol

We arrived at the hotel and, fortunately, were able to check in early. Once in the room, we began working on our presentations to Judge Cooper the next day.

We awoke bright and early on March 1st, had a hearty breakfast, checked out of the hotel, and took a taxi to the courthouse for our 10:00am hearing. When the time arrived, we made our way inside the courtroom and sat down at the Defendants’ table. Across from us sat Department of Justice attorney Ryan O. McMonagle. Just like in the movies, the Court Clerk stood up and said “All rise!”as Judge Cooper entered the room and took his place in his big, leather chair overlooking the courtroom.

The hearing began with introductions of each of the parties: Mr. McMonagle first, then me, then Michael.

Next, Mr. McMonagle took his place at the podium facing Judge Cooper, and began his argument FOR finding us in contempt of court. Essentially, his position was “the injunction in this case was explicitly designed to prevent two things: additional duplicative challenges, and challenges aimed at the Department of Justice and its attorneys for actions that they take to collect taxes and actions that they take in the underlying cases themselves because, as these cases have gone along, Mr. McNeil and Mr. Ellis and other plaintiffs have begun to train their sights on the attorneys for actions that they have taken in defending these suits.”

He continued, “The United States moved for an order to show cause twice. The second motion is what brings us here today. It’s the one that the Court granted, and that was based upon actually the filing of both cases, but it was precipitated by the filing of the second case, McNeil vs. Brown.”

“In the complaint for McNeil vs. Brown, it states at Paragraph 17E, they want a — requested a declaration that, quote, Based upon the four unsigned, unpublished Orders now before the Court, did the author resolve de novo the contested dispositive legal controversy whether 28 USC Section 6020(b) grants the power to create substitute returns in income tax matters, despite the Commissioner’s repeated public concessions 6020(b) does NOT? Embedded in that declaration is a factual allegation that the commissioner does not have the power to prepare returns under 6020(b) and that the commissioner has made, quote, repeated public concessions that it does not have the power. So to say that by challenging the Court’s ruling it’s completely divorced from the underlying factual challenge to the Internal Revenue Service’s authority is incorrect. In order to get that declaration, there has to be a factual determination about what the Internal Revenue Service’s authority, in fact, is. It’s a premise of that declaration, if nothing else.”

“I would also like to point out to the Court that even accepting — let’s just accept that Mr. McNeil and Mr. Ellis are right that this is not a challenge to the actions by the IRS, it is most certainly a challenge to actions by Department of Justice attorneys in defending the underlying suits, and that is a separate provision of the injunction that I would point out to the Court. It is Paragraph 1b. of the injunction which prohibits, without prior leave of Court, Mr. McNeil and Mr. Ellis from, quote, filing, or assisting in the filing of, any civil action without first obtaining leave of Court in any United States District Court asserting or purporting to assert a claim under the United States Constitution or the Administrative Procedure Act challenging actions by the Department of Justice to defend against the suits referenced in Paragraph 1(a) and/or suits to collect income tax liabilities.”

“Further, states, “You know, they attempt to say that this is not a challenge to DOJ’s actions to defend the underlying suits, but in Paragraph 18 of the complaint in McNeil vs. Brown they state, quote, This case, and others, were filed to elicit, document and terminate the outrageous program whereby lawyers enforce the income tax while surreptitiously circumventing/destroying victims’ rights to due process of law, and to meaningful access to the courts, end quote. They also clearly challenge actions taken by the Department of Justice in Paragraph 17D. They accuse the Court of Appeals of relying on, quote, fabrications.”

“Paragraph 17D requests a declaration that the district courts and the Court of Appeals, quote, applied the Anti-Injunction Act to allegations and relief fabricated by attorneys in the district court, then attributed to Plaintiffs. If that sounds familiar, it should, because that is a claim that has been made in this case in numerous motion papers and opposition papers, and it’s been made in the Ellis vs. Jackson case, which was at one point pending before Judge Sullivan and, as the Court said, has been since transferred.”

“The basic framework for those claims is the Department of Justice fabricated allegations in its motions to dismiss. The Court, either in collusion or ratifying those fabrications, adopted them and incorporated them into their opinions. That’s the basis of the conspiracy, quote-unquote, that they allege, and, you know, I can point out at least two places where they’ve made that very argument in the underlying case here. In Mr. McNeil’s, Mr. Ellis’s and Mr. Crumpacker’s response to the United States’ motion to dismiss, Docket No. 20, at Paragraph 2, they state, quote, Defendant attorneys have moved to dismiss based on false allegations the attorneys themselves fabricated, then attributed to plaintiffs, and are inviting this Court to commit the same crime. Declarations they are seeking in Brown are based upon those facts; therefore, they are challenging action taken by the DOJ attorneys.”

[RAM Note: When it was my turn to speak, I made this brief, introductory statement.]

“Prior to my retirement in 2015, I enjoyed a 40-year career as a forensic accountant, corporate auditor, and independent business consultant to domestic and international Fortune 500 companies in the energy industry. During my career, which required me to read and understand complex documents, one of the most important things I learned was this: that words have meaning. This is especially true in this hearing today because we are here to explain to you why we should not be held in contempt for allegedly violating your April 19, 2017, permanent nationwide injunction against Mr. Ellis and me.”

“To state it simply, we should not be held in contempt because we did not violate the injunction, and in the time allotted we will prove that. Please allow me to give you an overview of our response, if I may?”

“We plan to do four things: read the pertinent text from your injunction into the record so it’s all clear to everyone; number two, read the relief we seek in cases 17-1720, Harvey, and 17-2602, Brown, into the record to show that they don’t violate the injunction; number three, point out Mr. McMonagle’s failure to show that the two lawsuits in question are challenging actions by IRS and DOJ; and number four, we will summarize our position.”

“So that the record is absolutely clear and everyone understands exactly what the injunction says, with your permission, I’d like to read into the record Paragraphs 1, 2, and 3 of the injunction.”

[RAM Note: Read the Injunction here]

After I finished reading the relevant text of the injunction into the record, Michael replaced me at the podium and began his presentation. Here are excerpts from the court transcript:

MR. ELLIS: So, Your Honor, there seems to be a clear confusion between the relief we asked for, how it would affect them, and how it affects judges. Since it is so clearly being misunderstood —

THE COURT: “Them” being, one, the IRS’s ability to collect taxes —

MR. ELLIS: Yes.

THE COURT: — and, two, the Justice Department’s ability to defend the IRS.

MR. ELLIS: Right. So I’m going to have to read into the record the exact relief that we request to make sure that there is no misunderstanding that we’re supposedly seeking any relief whatsoever from those people. As I point to them, I’m pointing to the Department of Justice. The IRS isn’t talked about at all.

So I’m going to read into the record, if you don’t mind, the relief that we seek, and it will clearly explain the difference. By filing this case, plaintiffs seek a narrow six-part declaratory judgment deciding the following questions in each of the ten cases that we raised:

A. Did the plaintiffs complain, as their core fact contention, that IRS never prepared substitute income tax returns on any date shown in IRS’s falsified master file records concerning the targeted nontaxpayer? So we’re just asking a question whether the complaint stated that. We’re not asking to resolve that.

B. Did the attorney appointed to adjudicate that core fact controversy do so? We’re speaking of the judges when we say “the attorney” there. That’s not a Department of Justice. We’re talking specifically about the judges.

C. Did the judge, the attorney appointed to adjudicate the case, falsify the case record by attributing to litigants’ relief they did not seek? I.E., the plaintiffs supposedly sought to enjoin IRS from preparing substitute income tax returns and then dismissed the case on the base of that fabrication where, in fact, plaintiffs were not making that allegation at all. We’re alleging that IRS never prepared substitute income tax returns on any date shown in their falsified records.

D. Again, as you can see, every one of these is talking about did the judge in the case. It has nothing to do with them. The relief we continue to seek is Part D. Does the uniform falsification by attorneys — that’s judges — of the federal record of ten separate fully paid cases provide circumstantial evidence that the victims’ cases are meritorious? That’s against judges. Nothing to do with the department.

E. Does the uniform falsification by the attorneys — that’s the judges that are being sued — of the record in ten class cases violate each plaintiff’s right to adequate, effective, and meaningful access to courts and to due process of law?

This is the final piece that we’re looking for against only judges. It has nothing to do with even determining whether the allegations are true or not. Just simply were they adjudicated is what we’re looking at.

F. When attorneys — that’s judges — uniformly falsify the record of ten cases to avoid adjudicating their merits, do those dismissals have any precedential value on the underlying fact controversy raised by class victims?

Now, Your Honor, we need to make it very clear — because you’ve already misstated it this morning thinking that the word “attorneys” means DOJ — this will have no impact whatsoever on the Department of Justice or the Internal Revenue Service. In fact, in your injunction you specifically only mention cases against the IRS or the DOJ. There is no request to make any fact or any kind of determination with respect to what they’ve done or whether the underlying suits have merit or not. We’re simply asking did judges in these cases actually adjudicate the merits or not.

So Plaintiffs — we’re talking, say, now to Judge Contreras who has this case. Plaintiffs respectfully request the Court judicially notice that, A, they do not seek in this case to adjudicate whether or not IRS falsifies its record concerning nontaxpayers or whether the Department of Justice knowingly conceals the program and uses its fruit. In fact, Plaintiffs are not challenging in this suit any actions taken by the Internal Revenue Service, the DOJ, or any Executive Branch personnel to enforce the income tax.

So the case filed against — or McNeil vs. Harvey, for example, is strictly about what we perceive to be fraud perpetrated on us and the court by judges. Nothing to do with those people. So, Your Honor, it won’t affect them. This case wouldn’t affect them even if we got the relief that we sought. This case would in no way stop the IRS from falsifying records or the Department of Justice from using falsified IRS records.

I need to read into the record, if you don’t mind, what he’s talking about over here with respect to the other case, to Brown. He cited two different pieces different from his documentation, so we probably should read those into the record to make sure.

MR. ELLIS: So we’re going to be reading into the record from the case against Brown. “Plaintiffs respectfully request the Court” — this is now Judge Contreras as well; it’s before him, too — “that the Court notice they do not seek in this case against the Court of Appeals judges” — and really it’s not — we’re not even sure they were involved in what happened there.

“We do not seek in this case to adjudicate whether or not IRS falsifies its records concerning nontaxpayers or whether or not DOJ knowingly conceals the program and uses its fruit. Restated, Plaintiffs are not challenging in this suit any actions whatsoever taken by the Internal Revenue Service or by the DOJ to enforce the income tax.”

THE COURT: And I assume that you chose that language intentionally.

MR. ELLIS: Abso-blooming-lutely, sir. And then we went ahead and did the same thing under the relief requested that he is misinterpreting for this Court.

In fact, I think we should take a look at it.

This is the kind of thing that Mr. McMonagle has done since he has been involved in our cases for years.

He has not shown and will not be able to show you, or anybody listening, how the relief that we requested would in any way harm the IRS, hurt the DOJ, or do anything whatsoever. They can continue using falsified IRS records to prosecute people because the relief we seek is just declaratory against judicial officers just to determine — no money has been involved — just to determine whether they actually adjudicated the cases and the appeals that we’ve fully paid to have adjudicated and appealed.

THE COURT: All right. Thank you very much. I’m going to have the government respond to that. And I have read your briefs, and I understand your arguments.

MR. ELLIS: But you misstated them, sir.

THE COURT: Sir, have a seat, okay?

MR. McMONAGLE: Briefly, Your Honor, just to respond to a couple of things Mr. Ellis said. With respect to — I believe he began by reading the relief sought in McNeil vs. Harvey, which is the first post-injunction suit against district court judicial officers. He claims — he specifically keeps saying this isn’t a case to prevent the DOJ from enforcing the income tax.

That’s not just what the injunction says. The injunction bars him from also bringing actions challenging what DOJ did to defend these suits, these challenges to 6020. So it would reach anything that the DOJ did in Mr. McNeil’s underlying case. It would reach anything that the DOJ did in Mr. Ellis’s four or five underlying cases and any of the pending cases as well. It does not simply reach actions by the DOJ to enforce the income tax. That is incorrect. It isn’t an omission in the injunction, and Mr. Ellis is not properly reading the injunction in that way. But also, if we look at the relief sought in McNeil vs. Harvey, if we look at Subparagraph F of Paragraph 5 of the complaint, they requested a declaration that said, “When attorneys uniformly falsify the record of ten cases to avoid adjudicating their merits, do the dismissals have any precedential value or preclusive effect in regard to the unadjudicated fact controversy raised by the class victims?”

Now, the claim that this would have no effect on DOJ’s defense of these suits is completely contradicted by this because they’re asking for a declaration that the dismissals that we already procured and which were already affirmed by the D.C. Circuit have no precedential value. I can think of no more direct attack on what the DOJ did to defend those cases than that.

If nothing else, on that basis alone, the first suit violates the injunction, and they admit openly, proudly, that they did not file the application that was required. They did not proceed in a cautious manner or in any manner that was designed to acknowledge the authority of the Court to limit them. They just went ahead and filed it, and now we’re here today. That first suit plainly violates the injunction.

Now, their repeated assertion that lawyers in — the use of the word “lawyers” in both of their complaints means judges, I mean, perhaps we can take them at their word, but they’re asking for relief that at least appears on its face to provide room for them to later argue, “No, no, no, no, no, we meant lawyers; the Department of Justice, too.” They don’t say “judges” in the relief that they seek. They say “government lawyers.” And when you think of government lawyers, you think of Department of Justice —

THE COURT: They don’t say “judges” because they are purporting to sue the judges in their personal capacities; isn’t that right?

MR. McMONAGLE: Well, I can’t get into their heads as to why they did it, but presumably that would be the response that they would give. I’ll just close here, Your Honor, by saying, you know, if this injunction was so easy to get around that they could just avoid its strictures by suing the judges that entered adverse rulings against them, then it doesn’t have much force. You know, this whole manner of litigation began because Mr. McNeil and Mr. Ellis do not acknowledge the authority of Congress to impose the income tax —

THE COURT: I don’t want to get into that, okay? I don’t want to get into that.

MR. McMONAGLE: So it’s — there’s been a pattern, is what I’m saying here, of failure to acknowledge the authority of various branches of the government, and this is just the latest example.

THE COURT: Okay. Thank you. I am going to decline to make a contempt finding at this stage, and I’m going to tell you why. (Judge Cooper then told the story about the Yelverton case, in which he held that an injunction had been violated by Yelverton’s filing of an appeal, which in Judge Cooper’s opinion, was a new case.)

“Mr. Yelverton appealed that decision to the D.C. Circuit, and I got reversed. And I got reversed by an opinion from Judge Srinivasan which essentially said that, in order for there to be a violation, the injunction has to be clear and unambiguous, and while it was a close call, they felt that this injunction did not clearly and unambiguously cover a bankruptcy appeal as opposed to just any civil action.

And so here, I think the government’s interpretation of the injunction is probably the better position. You know, I think a good argument can be made that these suits interfere with or essentially seek to, in essence, challenge or appeal, again, the substance of the decisions that were made in the underlying cases, but frankly, I don’t think that it’s as clear and unambiguous as necessary to support a contempt finding, which is a serious finding, and it’s a rare finding. I’ve never found anyone in contempt before, and I don’t want to do it. I don’t like doing it. Nothing personal, right?

But I tell the story of Mr. Yelverton not only for the legal principle that it provides, but I also think it has some parallels to you gentlemen. You’ve obviously invested a lot of time and a lot of energy and a lot of resources into this effort of yours, and, you know, I don’t know you folks personally, but it seems that you think that there are people out to get you, and that there are lawyers and judges conspiring to, you know, have your cases dismissed and prohibit you from exercising your First Amendment rights.

And you’re welcome to make any argument in my court, but you have to accept the outcome and not abuse the system. And frankly, I think suing judges who rule against you is an abuse of the system, but you can continue before Judge Kelly, you can continue before Judge Contreras, and if you can convince them that you have a valid claim against me or any other judges, knock yourselves out. Okay?

In the meantime, what I will provisionally do is amend the existing injunction to cover suits against judicial officers challenging the merit, the substance, and the process of their decisions with respect to the IRS’s program for substitute returns, and what I’d like for you to do, Mr. McMonagle, is present some draft language, as Mr. Ellis is correct that words matter — or Mr. McNeil is correct that words matter. I’d like for you to file it to — as a formal amendment to the injunction.

And we’ll give you folks an opportunity to respond to that language, and then I will enter an order that will amend the injunction.

But in the meantime, no more suits against judicial officers other than the ones that you’ve already filed without seeking leave of the Court consistent with the terms of the prior injunction, all right? And if you violate that order, I’ll hold you in contempt. I don’t want to do it. I don’t like doing it. You know, I have 150 other cases to worry about, but I have a duty to because I have a duty not only to, you know, the other litigants in my cases — and I’ve got 150 other litigants out there — but I have a duty to the other judges of this court to run our dockets efficiently. Okay?

So with that, we are adjourned. I will anticipate some draft language from the government within a week, okay?

And sooner if possible.

And we’ll give you folks seven days to respond.

Fair enough?

MR. ELLIS: Fair enough.

MR. McNEIL: Thank you, sir.

THE COURT: Okay. Have a good trip.
(Whereupon the hearing was concluded at 10:46 a.m.)

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

So, there you have it. By its own “clear and unambiguous” language, the injunction defeated itself.

And, WE WON!

True to form, however, on March 8, 2018, the DoJ filed its “Amended Order of Permanent Injunction“, which merely added Paragraph (1)c. to the injunction, which reads:

“c. Filing, or assisting in the filing of, any civil action in any United States District Court, without first obtaining leave of that court, asserting or purporting to assert claims against judicial officers, whether in their official or personal capacities, challenging the merit, the substance, and/or the process of those judicial officers’ decisions with respect to the Internal Revenue Service’s program for preparing to assess and assessing income tax liabilities pursuant to 26 U.S.C. § 6020(b).”

As I described a WWII bomber pilot’s words in another blog awhile back, “The flak is heaviest when you’re over the target.”

It looks like we got a little too close, so, Judge Cooper took additional action to deny us due process.

What does one do when battling such evil?

Follow God, of course!

Stay tuned.

In liberty,

Bob McNeil
2018 U.S. Senate Candidate from Texas
21st Century American Revolutionary
Founder/President – American Citizen Party

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