The Obama eligibility issue exploded today in an administrative court in Georgia, after Obama and his attorneys refused to appear. Because they refused, they could not exclude evidence. Today the court heard plenty of evidence, all damning. Because Obama’s attorneys offered no defense, the judge will probably rule against him by default.

Obama eligibility challenge lead-up

Three weeks ago, Judge Michael Malihi of the Office of State Administrative Hearings set a hearing for today on three Obama eligibility challenges. The lawyers in those cases are:

1. Van Irion of Liberty Legal Foundation, representing plaintiff David Weldon.
2. State Representative Mark Hatfield of Georgia, representing Carl Swenson and Kevin Powell.
3. Dr. Orly Taitz, representing David Farrar, Leah Lax, Cody Judy, Thomas McClaren, and Laurie Roth. (Warning: some witnesses allege that someone has infected Orly Taitz’ web site with an Internet virus.)

Judge Malihi ruled that Weldon and the other plaintiffs all had standing, and that Barack H. Obama must show that he is eligible to the office of President even to have his name on a primary ballot. His lawyers consistently argue that eligibility is only an issue in an election of Presidential Electors. Judge Malihi is having none of that. In fact, he allowed Taitz to issue a subpoena to compel Obama to attend and to produce:

• A paper long-form birth certificate,
• Documentation of every name that Obama has ever called himself (including “Barry Soetoro,” his assumed name during his Indonesia years), and
• Proof behind his Social Security Number.

Obama did produce a birth certificate earlier. But that was a PDF file, not a paper document. As such it has no legal standing. Furthermore, several witnesses have said that its multiple layers are clear evidence of forgery.

Obama’s attorney, Mark Jablonski, moved to quash that subpoena. Last week, Judge Malihi denied the motion.

In support of his motion, Defendant argues that “if enforced, [the subpoena] requires him to interrupt duties as President of the United States” to attend a hearing in Atlanta, Georgia.  However, Defendant fails to provide any legal authority to support his motion to quash the subpoena to attend.  Defendant’s motion suggests that no President should be compelled to attend a Court hearing.  This may be correct.  But Defendant has failed to cite to any legal authority evidencing why his attendance is “unreasonable or oppressive, or that the testimony…[is] irrelevant, immaterial, or cumulative and unnecessary to a party’s preparation or presentation in the hearing, or that basic fairness dictates that the subpoena should not be enforced…

Jablonski indignantly refused to have Obama attend, or even to come himself. (The Atlanta Pop Culture Examiner found this shocking and disturbing.) Had he appeared, that might have satisfied the letter of the order. It certainly would have given Jablonski the opportunity to present a case, and to cross-examine, object, and do other things that an attorney does when the other side presents its case. Instead, Jablonski sent this imperious letter to Secretary of State Brian Kemp. In it Jablonski said that Kemp had exceeded his authority, and that Judge Malihi had let the cases “get out of control.” Jablonski was especially upset with the judge for allowing Orly Taitz to send a subpoena to his client, something no other court has done so far.

The Secretary of State should withdraw the hearing request as being improvidently issued. A referring agency may withdraw the request at any time. Ga. Comp. R. & Regs. r. 616-1-2-.17(1). Indeed, regardless of the collapse of proceedings before the ALJ, the original hearing request was defective as a matter of law. Terry v. Handel, 08cv158774S (Superior Court Fulton County, 2008), appeal dismissed, No. S09D0284 (Ga. Supreme Court), reconsideration denied, No. S09A1373. (“The Secretary of State of Georgia is not given any authority that is discretionary nor any that is mandatory to refuse to allow someone to be listed as a candidate for President by a political party because she believes that the candidate might not be qualified.”) Similarly, no law gives the Secretary of State authority to determine the qualifications of someone named by a political party to be on the Presidential Preference Primary ballot. Your duty is determined by the statutory requirement that the Executive Committee of a political party name presidential preference primary candidates. O.C.G.A. § 21-2-193. Consequently, the attempt to hold hearings on qualifications which you may not enforce is ultra vires.

In other words, said Jablonski, a mere State Secretary of State may not touch the Obama eligibility issue, because what a Party Executive Committee says, goes. In reply, Kemp sent this letter back to Jablonski. In it he essentially said that if Jablonski didn’t want to attend, that was up to him. But:

If you and your client choose to suspend your participation in the OSAH proceedings, please understand that you do so at your own peril.

In other words, “Show up, unless you want to lose.”

Obama eligibility hearing

The Obama eligibility hearing before Judge Michael Malihi of the Georgia Office of State Administrative Hearings. Photo: The National Patriot; from a live video stream in the courtroom.

The Obama eligibility hearing took place this morning in Atlanta, Georgia from 9:00 a.m. to 11:15 a.m. (Here is a partial transcript.) The Article II Political Action Committee carried a live video stream of the hearing. About 100 people attended and took every vacant seat in the audience section. Most of these seemed to be 55 years old or older. CNAV heard from several Internet witnesses that the video stream did not necessarily reach every user who tried to connect to it. Some suspected that some person or persons unknown tried to block the stream. Perhaps anticipating such a thing, Article II PAC arranged for two “back-up” streams. One of these carried the trade name “Vattelevision” in reference to Emmerich de Vattel, author of The Law of Nations. Many Obama eligibility challengers rely on this text to define a natural-born citizen.

Van Irion went first. He asserted that Obama cannot be a natural-born citizen because his father was a British colonial subject and never applied for US citizenship. Irion cited Minor v. Happersett as defining three classes of citizen: naturalized, statutory, and natural-born. A natural-born citizen must be born in-country to two citizen parents. A citizen mother alone is not enough.

(Nicholas E. Purpura, lead plaintiff in Purpura v. Sebelius, told CNAV that this is the strongest Obama eligibility argument available. His comprehensive case against the health care reform bill makes the identical Obama eligibility challenge. He now plans to re-argue his petition for certiorari to the US Supreme Court, and to cite Van Irion’s evidence in his argument, among other things.)

Representative Hatfield was next. He called his two clients as witnesses, in an effort to show that the Obama birth certificate is a forgery.

Orly Taitz came last and created the greatest sensation. She called six different witnesses, including a private investigator and a small businessman who sells document scanners. Her cases was twofold:

1. Obama’s Social Security Number cannot be his. It belongs to a long-dead person who was born in 1890. The Obama SSN, say the witnesses, follows the convention for a man born in that year, but not one born in 1962.
2. The Obama birth certificate PDF file has many layers. Those layers fairly scream, “Forgery!”

After calling her witnesses, Taitz addressed the judge directly on her own investigation. Judge Malihi interrupted her and said that if she was testifying, then she must do so under oath. She then took the stand, swore the oath of truthfulness, and began to testify. Finally the judge asked her to give the court a notarized affidavit laying out her investigation and its results.

Judge Malihi did not rule on the Obama eligibility cases today. Nor did he hint at whether he would find Obama in contempt of court for not showing, and not even sending his attorney to show. Whether an administrative law judge can compel someone beyond the State line to come to court is an open question. What is not open is that any judge may rule only on the evidence that it hears. By not showing, and not sending a surrogate, Obama risks a default judgment that will knock him off the Georgia ballot. (In fact, some of the plaintiffs say that Judge Malihi told them that he already planned to enter a default judgment in their favor. He let the hearing go forward only when the three attorneys insisted that they present their evidence to get it on the record.)

Obama eligibility challenges elsewhere

The Georgia case is not the only Obama eligibility case now pending. Alabama election officials will not allow Obama to list his name on the ballot until an Obama eligibility case in that State resolves itself.

Georgia was the first such case because its primary deadline is very close. Other States have their own filing deadlines. Purpura told CNAV that his massive health care reform bill case is the only case with an Obama eligibility count that is even before the Supreme Court. He plans to argue that the Court must not only grant certiorari to him, but also expedite his case. That, he says, is the only way to close the other Obama eligibility cases before any more primary filing deadlines pass. The reason: not one of those cases is even close to ripe for appeal to the Supreme Court in its respective State. And the US Supreme Court will not accept a case on appeal from a lower State court.

Related:

Obama eligibility challenges go forward

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