Barnett v. Obama: 2008 Joint Congressional Session Could be Discovery Loophole
CreativeOgre at the CountryFirst forum and I had originally reported back in January regarding then-Vice President Cheney’s apparent failure to call for objections during the 2008 Joint Session of Congress certifying electoral votes for the presidency.
Thursday, attorney Leo Donofrio posted the following article in response to Judge David Carter’s recent motion to limit discovery in the case, Barnett v. Obama, presenting would could be a legitimate avenue of discovery (and this isn’t the only case that would be covering this angle; see below):
[UPDATED: 9:45 AM. Upates in strikeout and red ink.]
Today, Judge Carter issued a limited discovery order pertaining to the case of Barnett v. Obama. Judge Carter’s order stated:
All discovery herein shall be stayed pending resolution of Defendants’ Motion to Dismiss, except for any discovery as to which Plaintiffs can demonstrate, to the satisfaction of Magistrate Judge Nakazato, is necessary for the purpose of opposing the Motion to Dismiss.
Regarding that order, one of my astute readers (Joe The Blogger) asked the following question which led me to write this post:
Leo,
What do you think about taking advantage of Judge Carter’s Order for limited discovery…Surely there is SOME scope here for forcing SOME information out of the DOJ?
While reading Judge Carter’s limited discovery order, the following passage caught my eye:
In this case, Defendants have alleged that the Court lacks subject matter jurisdiction for various reasons, including that the case presents a non-justiciable political question that is properly addressed by the legislative branch of government, not the judicial branch. Defendants’ Motion to Dismiss at 11.
As you know, Judge Carter agreed to stay discovery until the motion to dismiss was resolved regarding whether the district court has subject matter jurisdiction.
With Judge Carter’s reasoning guiding my analysis, I carefully examined the DOJ motion to dismiss paying special attention to the arguments made starting on page 11. When I got to page 13, I found something interesting:
Under 3 U.S.C. § 15, Congress is directed to be in session on the appropriate date to count the electoral votes for President, with the President of the Senate presiding. The statute further directs that the electoral votes be counted, and then the results be presented to the President of the Senate, who shall then “announce the state of the vote.” The statute then provides a mechanism for objections to be registered and resolved in the following language:
“[e]very objection shall be made in writing,and shall state clearly and concisely, and without argument, the ground thereof, and shall be signed by at least one Senator and one Member of the House of Representatives before the same shall be received. When all objections so made . . . shall have been received and read, the Senate shall thereupon withdraw, and such objections shall be submitted to the Senate for its decision; and the Speaker of the House of Representatives shall, in like manner, submit such objections to the House of Representatives for its decision.”
That’s an interesting quote… interesting for what the DOJ left out.
They conveniently cut the statute off when they bring it into the brief. The uncensored passage from 3 U.S.C. § 15 states:
Upon such reading of any such certificate or paper, the President of the Senate shall call for objections, if any. Every objection shall be made in writing, and shall state clearly and concisely, and without argument, the ground thereof…
The DOJ clipped the statute so as to leave out the part which places a burden on the Vice President, acting in his role as President of the Senate, to call for objections after the count of votes.
Vice President Cheney failed to call for objections as the statute requires.
(See the You Tube video of the 2009 electoral vote count at about the 27:00 minute mark.)
The DOJ motion to dismiss relies upon separation of powers and the political question doctrine alleging the district court has no authority to entertain the case. In doing so, the DOJ cites specifically 3 U.S.C. § 15 as proof that challenges to the President’s eligibility are provided for by Congress.
This is true, but those provisions were not properly followed on January 8, 2009 when the votes for Obama were counted. And the district court therefore does have jurisdiction to review a failure of the Government to follow the laws enacted to protect the integrity of the electoral process.
There are, as usual, many opinions as to why the specific letter of the law was not carried out and a call for objections made. But I see noofficial explanation available to the public.
Therefore, since the issue was specifically raised by the DOJ motion to dismiss in a quotation which fails to provide the court with the full context of the law cited, I see no reason why the court should deny the plaintiffs discovery on this particular issue.
Since the DOJ raised the statute and relied upon it for the motion to dismiss, and since Judge Carter has allowed immediate discovery necessary for purposes of opposing the motion to dismiss, Orly should demand discovery of the following:
1. Since no call for objections was made, each member of Congress and the Senate should be served with interrogatories requesting deposed as to whether they would object on the basis of Obama’s eligibility.
NOT ON THE BASIS OF HIS BIRTH CERTIFICATE.
Got that? Make it broad, not specific.
- Some may have objections to his admission of British birth.
- Some may have objections regarding his place of birth.
Don’t limit the interrogatories deposition to any specific objection. Just ask each Representative or Senator whether they would object to Obama’s eligibility.
The Constitution does not require a birth certificate be offered. The Constitution does require that the President be a natural born citizen. The interrogatories should be simple. For example:
Dear Congressman Ron Paul – Had Vice President Cheney called for objections after the counting of electoral votes as is required by 3 U.S.C. § 15, would you have objected?
That’s sufficient as written. Send that to each Senator and Representative.
Usually depositions are limited to a certain amount, but the court may order depositions as well if the court is convinced they are necessary. In this case, the deposititons would be very short, just a few minutes each.
2. Interrogatories should be issued which question Cheney should be deposed as to why he didn’t call for objections as was required by the statute.
Depending on the answers in those interrogatories depostions, the court might order the Senate and Representatives to meet for the purpose of hearing a call for objections.
After all, if the Government is going to cite 3 U.S.C. § 15 as evidence that the process of approving the President’s eligibility belongs to Congress, then the plaintiffs ought to be entitled to the protection of the statute by an enforcement of the duties specifically prescribed therein.
District courts do have the power to issue a writ of mandamus to compel a ministerial duty owed. Calling for objections was a ministerial duty owed – that was not performed.
In my opinion, this is the best chance of getting any meaningful discovery approved. [emphases original]
Mario Apuzzo, attorney for Plaintiffs in Kerchner v. Obama, has included the above as one of numerous points in that case (page 34):
179. Cheney then asked the tellers to count the total votes and provide the totals to him as the President of the Senate.
180. He then announced the vote totals for each candidate for each office, declared Obama and Biden the winners, and dissolved the Joint Session.
181. At no time did he call for objections after the vote tally was reported for each state or at the end of the total vote for either office. http://countryfirst.bravehost.com/phpBB3/viewtopic.php?f=9&t=1843&p=7069&hilit=B urris#p7265.
182. Pursuant to Title 3 of the U.S. Code, Cheney was required to openly call for objections to each state’s vote after each individual state’s vote is read. Cheney failed to satisfy this minimum procedural requirement. ENDNOTE 33.
183. So not only did the Joint Session of Congress fail to vet and investigate Obama’s qualifications to be President under the unique circumstances existing in the public arena and given the petition of the plaintiffs and thousands of other people, but Cheney violated 3 U.S.C. Sec. 15 by not openly calling for objections after each state’s votes were announced.
Further, via my January posting, blogger Justin Riggs of YourFellowCitizen.com said the following:
In both 2000 and 2004, objections were raised; not after, but during, the counting of the votes. In 2000, the Congressman had no Senator, and the objection was dismissed. In 2004, a Congressman and a Senator signed an objection, the joint session was dissolved, it was debated for two hours, and the Congress came to a conclusion. I’ve got transcripts of the three years available, if anyone wants them.
Perhaps Mr. Riggs — who still frequents my site — still has the documentation available.
See the following links regarding the eligibility saga:
- The background:
- The questions:
-Phil
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That’s the opinion of Miss Tickly…when did [she] become a legal source? Bob
1) I have named no individual from the link because it has been the experience of several commenting at the site that they cannot acquire from Hawaii DoH the administrative rules to enable them to determine which and how DOH rules are being applied. 2) I wrote of the fact that sincere people were describing their experiences of DoH obfuscation and deception at the link given: perhaps to Bob they are insignificant nobodies, all of them mad and deluded about these experiences, but really, that would be just too improbable and too convenient (for Bob) to be true. 3) As for Bob’s left-field concern about the probity of internet “legal sources”, it is quite revealing that Bob has not extended this to the online sources of the various images of an alleged legal paper which he believes supports Obama’s Presidential eligibility i.e. Daily Kos, Polifact, and Annenberg Political Fact Check, each of whom published technically irreconcilable and thus fantasy images of the “same” purported COLB.
“Another opinion of Miss Tickly, not a fact.” Bob
The fact is that Hawaii DoH has refused to release data to the public that Hawaii statute mandates should be made available on public request. The fact is that DoH PRO Okubu misled inquirers by writing that DoH were not in control of, and thus could not make available for public inspection, decades of divorce records (including Obama’s parents) when they actually were and definitely could. The fact is that DoH have repeated the mantra “prohibited by law from releasing or acknowledging” vital records when Hawaii law gives almost complete discretion to DoH to operate under whatever rules they care to devise in relation to their handling of vital records, except in the cases of recognition or rejection of paternity, adoption, sex change, or witness protection – which we have been assured do not apply to Obama. The fact is that Hawaii DoH did not make any reference to amendments to Obama’s vital records, which do not figure as such on his purported COLB and are not privileged by law, until Fukino was placed in a legally untenable position by TerriK. These are not “opinions of facts”, these are on-the-record facts implicating Hawaii DoH and which they cannot deny. For Bob to take on the duty of repudiating these sordid implications on their behalf goes beyond any understanding based on known facts.
“Polarik doesn’t have the experience he claims he had; he fact lied about his experience. Under oath, even; that’s perjury.” Bob
Bob surely must have observed that mention of Polarik’s experience was very clearly put within “quotation marks and italicized“, by long custom indicative of the words of someone other than the writer. Those were the self-descriptive words of Bob’s provider of evidence, Dr Ron Polarik, about himself, which Bob now dismisses with utter contempt. Readers will be amused that Bob has to resort to Polarik, a man Bob characterizes as a “liar” and “perjurer under oath“, as the only source of the evidence Bob claims proves Obama’s COLB legitimate. Given Bob paradoxically alleges that Polarik does not have the decades of experience he claims and that Polarik went to extraordinary lengths to manufacture evidence against Obama that is (for Bob) both criminal and worthless in the extreme, it defies good sense that Bob should imagine readers would be so foolish under those circumstances to treat as probative any evidence for which Polarik is the only source and witness. The answer to Bob’s small opinion of readers is to be found in the fact that to support his complete faith in Obama’s online COLB Bob cannot provide any better evidence than COLB images which have always been in the exclusive possession of someone Bob considers “a liar“, “a perjurer“, and a “manufacturer of evidence”; which to any reasonable person establishes the alternative as true, that there is no known probative example of an officially registered Hawaii birth which has been recorded as “FILED” rather than “ACCEPTED“, as I wrote in a previous comment.
Simply: Polarik is the “perjurer” and “manufacturer of evidence” Bob accuses him of being and Obama’s COLB is a fake or Polarik’s evidence genuinely is what he says it is and worthy of readers’ serious consideration and Obama’s COLB is a fake. Either way Obama’s purported COLB is a fake. One major difference between Ron Polarik and Bob is that Polarik does not confine himself to sniping with one-liners: that’s smart, because cases are won by coherent arguments: one-line snipers will always lose.
“DoH can’t violate HIPAA” Bob
No explanation from Bob as to how DoH management of vital records is covered by the Health Insurance Portability and Accountability Act of 1996. If Bob had an explanation he would have shared it with readers; no explanation = doesn’t have an explanation.
“FRE 803(9) includes records and data compilations in any form.” Bob
Perhaps Bob has never really encountered the meaning of the word “form” or bothered with the finer subtleties of the English language, otherwise he must be a “legal” anarchist to propose that the phrase “in any form” in Rule 803(9) actually means the colloquial “in any form whatsoever “. This revolutionary development would admit, for example, vital records which are without witnesses’ signatures, without seals, without certifications,and without the tedious authentications required under other Rules of Evidence etc. etc. Bob is advised to consult a dictionary and ponder the meaning of the word “form“: “shape and structure – body or outward appearance – mode in which a thing exists – procedure as determined or governed by regulation – fixed order of words or procedures – method of arrangement – manner of coordinating elements – a mold“. If Congress had intended with FRE 803(9) that the words “in any form” were to mean the colloquial “in any form whatsoever ” it would never have qualified the words “records and data compilations” with the phrase “in any form”. Under the canons of statutory interpretation the phrase “in any form” must have a specific meaning and purpose, and that meaning can be none other than its commonly accepted dictionary meaning (“A statute’s plain meaning must be enforced…” US Nat’l Bank of Oregon v. Ind. Ins. Agents, SCOTUS, 1993), where “form” stands in opposition to “content“, and so the intended purpose of Congress must be that vital records of birth, marriage, and death, are to be admitted under differing shapes, structures, outward appearances, co-ordinated elements, and methods of arrangement but should continue to adhere to their traditional content or essence, and therefore always be compliant with long-established law, particularly the law as codified in the Federal Rules of Evidence in relation to hearsay.
The purpose of the law is to exclude hearsay except under prescribed conditions, not to open up revolutionary backdoors to hearsay which effectively negate those conditions. Rule 803(9)’s “in any form” could not possibly be interpreted by a judge to mean that if something can be remotely described colloquially as a vital record “in any form whatsoever “, regardless of content and however inadmissible under any other hearsay exception, it can “always be admitted” to a welcoming evidential home in court via Rule 803(9); neither could it possibly be interpreted by a judge to mean that, if otherwise admissible under 803(9), a vital record (colloquially) “in any form whatsoever ” would be “immune to any other hearsay exception” that would ordinarily apply. Given that the phrase “in any form” is also used in FRE hearsay exceptions 803(6), 803(7), 803(8), 803(10), and elsewhere in FRE Rules 901(7), 901(8), 902(4), and 1005, is Bob seriously asking us to believe that all these Rules similarly admit evidence “in any form whatsoever ” regardless of content and however inadmissible? That’s not how the FRE work, that’s not law, that’s not rational: that’s “legal” anarchy, if not worse. As there is no logic or precedent for Bob’s revolutionary suggestion it might be thought that Bob may admit he is wrong, but this is unlikely. Obama’s COLB is all Bob has to “prove” Obama’s eligibility. As there is no possible argument to sustain Obama’s COLB as admissible, Bob will either ignore the rebuttal or fumble at a one line snipe – thereby conceding the rebuttal.
“…no problem authenticating the COLB.” Bob
The Hawaii COLB has been designed to contain inescapable and inadmissible hearsay: in the case of Obama’s alleged COLB, it contains statements made in 2007 which reference a birth certificate and a serial number recorded in 1961. This makes Obama’s COLB inadmissible hearsay under FRE Rules 803(6) or 803(8). The proof that Obama’s COLB (if it exists) is inadmissible as evidence and was designed with full knowledge of its inadmissibility is for all to see on the COLB itself: Obama’s purported COLB states it is only “…evidence of the fact of birth…” The COLB does not state” it is …evidence of the fact-S [plural, i.e. circumstances] of birth“.
This disclaimer from Hawaii DoH assures inadmissibility under hearsay exceptions 803(6), 803(8), or 803(9) because DoH are saying they know perfectly well that a COLB which spits out the edited, reduced, and abstracted dataset of a birth prior to 2001 is by definition not a certified copy of the original birth certificate. No witnesses to a birth on a COLB = no circumstances of birth on a COLB = saving references of inadmissible hearsay on a COLB = COLB not a certified copy of a vital record = not a genuine vital record and inadmissible = the prominent disclaimer on Obama’s purported COLB to that effect. It is the built-in inadequacies of Obama’s COLB as a legal instrument that makes it stumble over inadmissibility whichever way it turns. DoH knew that pre-2001 COLB datasets could only derive their legitimacy from the originating paper documentation, but they knew they wanted the convenience and reduced costs of printing out an electronic COLB dataset and foisting it on an unsuspecting public as a “genuine certified copy”. DoH also knew that any reference to a pre-2001 birth certificate in a COLB was ever more likely to be inadmissible hearsay the farther back in time the birth, and DoH also knew that not alluding to this in some way might have legal implications, so DoH contrived the never-seen-before-in-any-certified-copy-of-a-Hawaii birth-certificate disclaimer hidden in plain sight on the lower front edge of the COLB. This means Obama’s COLB is worthless in or out of court and that’s what Hawaii DoH’s disclaimer says in their customary serpentine fashion.
“…based on whether there was a sufficient amount of qualified signatures.” Bob
Bob seemingly didn’t notice that Tokaji wrote “there was no doubt as to the state court’s ability to entertain a challenge to a presidential candidate’s qualifications … a comparable state-court lawsuit could be filed to challenge a presidential candidate’s constitutional qualifications to serve … political question doctrine does not bar state-court litigation seeking to exclude a presidential candidate from the ballot on the ground that he or she is ineligible.” There is no warning to be seen anywhere from Tokaji that litigants ensure any challenge is confined to “an insufficient number of qualified signatures” or it must fail. Challenges with regard to a candidate’s eligibility is the precise subject of that part quoted from Tokaji’s article – as anyone could see who had honestly consulted Tokaji’s article – entitled “The Justiciability of Eligibility“, and not as Bob mischievously took it to mean, “The Justiciability of Not-Having-A-Sufficient-Amount-Of-Qualified-Signatures.”
“If Obama’s nomination papers state he meets the qualifications for the office of president…” Bob
Do we really believe that Bob is unaware that Obama’s nomination papers in 49 states (except Hawaii, which has a dedicated statute) made no reference to Obama being qualified to serve as president? http://tinyurl.com/CFP-NP-49p1 Look at the word which Bob uses to begin his comment: “IF Obama’s nomination papers…”. Here’s my big IF: it is a fact that 49 of Obama’s nomination papers in 2008 made no reference to Obama being qualified to serve as president, and we can be sure that IF Obama’s nomination papers are filed in 2012 once again there will be with no reference to Obama’s legal eligibility and then he will find himself susceptible to challenges – but it’s much more probable that Obama won’t run at all.
Just the facts: DoH administrative rules which should describe how “FILED” and “ACCEPTED“ are used on birth certificates have been removed from public access by DoH.
Facts? That’s the opinion of Miss Tickly, who actually says nothing on the subject. (And when did Miss Tickly become a legal source?)
In response to public inquiries about vital records data held by DoH, and required by law to be made available to the public, DoH has consistently misled and misdirected the public, contrary to their lawful duty.
Another opinion of Miss Tickly, not a fact. And when will Miss Tickly get around to filing that lawsuit?
The Hawaii Attorney General is flouting Hawaii law by refusing to make public the advice he gave to DoH Director Fukino concerning her July 2009 statement on Obama’s vital records.
Donofrio’s opinion. Hawaii’s responses are remarkably consistent with the governing privacy and confidentiality laws it cites. And when will Donofrio get around to filing this (pointless) lawsuit?
is the only source and witness for the “Michele COLB”
No one is disputing the accuracy of the Michele COLB; what is so hard to believe about that?
A “computer-media expert with 30 years experience“, Dr Polarik in an affidavit under penalty of perjury
Polarik doesn’t have the experience he claims he had; he fact lied about his experience. Under oath, even; that’s perjury.
And Polarik’s “analysis” has been refuted by real people with actual experience.
A public health authority authorized by law to collect or receive PHI…[whose] activities include, but are not limited to…vital events such as birth…”
Obama’s birth is listed in Hawaii’s index. But the DoH can’t violate HIPAA and release the birther wish list.
federal judges are there to make sure the Rules are applied as Congress intended
And a federal judge would have no problem authenticating the COLB under FRE 902(1). (And FRE 902(4) would just require a signature; a housekeeping issue.)
There is no provision in Hawaii law for DoH to issue anything other than a certified copy of a vital record.
COLB.
Obama’s COLB makes hearsay statements in the form of its dataset and it also makes a hearsay statement when it references an alleged birth certificate index number on its first line.
FRE 803(9) includes records and data compilations in any form.
In 2004…registered voters in Pennsylvania filed suit in state court, seeking to have the names of independent candidate Nader and his running mate Peter Camejo excluded from the ballot
…based on whether there was a sufficient amount of qualified signatures.
RSA 665:6 Ballot Law Commission. The ballot law commission shall have jurisdiction…[after] the nominations at the primary…[to receive a] written objection to their conformity with the law
If Obama’s nomination papers state he meets the qualifications for the office of president, then he’s conformed with the law. That kind of suit will go exactly nowhere, fast. (This is really just a Keyes v. Bowen rerun.)
But as birthers can’t resist either a frivolous lawsuit or losing in court, it’ll be par for the course. Just pray Taitz still has her license by then.