Having done a little more research into the legal process, I want to try to clear up any confusion about yesterday’s birther hearing before we move on. And yes, we will move on quickly.
Under state law, Deputy Chief Judge Michael Malihi’s job was to gather the evidence in the case through the hearing process and then issue a recommendation on whether Barack Obama’s name should remain on the Georgia ballot. His role in the process was to serve as a fact-finder rather than final arbiter.
According to the birther movement, Malihi told their lawyers during pre-hearing conference that he would enter a “default judgment” against Obama for refusing to appear and for refusing to even send lawyers to participate in the hearing, and that he would in fact recommend Obama’s removal.
I think that’s highly dubious. I know you will be shocked to hear this, but Orly Taitz and others have a record of claiming important legal victories that turn out to be inglorious defeats. Among other things, it keeps the contributions flowing in. Nothing presented in the absurdist comedy of that courtroom yesterday would justify barring a sitting president of the United States from the Georgia ballot. It was a farce. The birthers’ only chance is a recommendation from Malihi based not on their “evidence,” but on the refusal of the Obama camp to put up a defense against it.
Until I sat in that courtroom yesterday, I wasn’t sure why the Obama legal team had chosen not to appear. But in hindsight, they were right. Showing up to refute the nonsense presented would have given the birther arguments a dignity they do not deserve. You cannot refute air and sheer fantasy. How many times can an opposing lawyer say, in so many words, “Your honor, this is just really and truly stupid”?
In either case, Malihi makes only a recommendation. The official decision on whether Obama will be listed on the ballot will be made by Secretary of State Brian Kemp, a Republican.
In a letter to Obama’s legal team, Kemp has written that if they refused to participate in the hearings, “you do so at your own peril” because they would not have a chance to put the facts of the case on record. But I think if anyone’s at peril here, it’s Kemp, and I suspect he knows it.
A word in his defense:
If you read state law, Kemp had little legal option but to go through the motions of the hearing process. The law states that if a candidate’s qualifications are challenged, “the Secretary of State SHALL notify the candidate in writing that his or her qualifications are being challenged and the reasons therefor and SHALL advise the candidate that he or she is requesting a hearing on the matter before an administrative law judge” (emphasis mine).
Obama’s lawyers claim that Kemp had legal escape hatches that would have allowed him to avoid the hearing. Maybe so, but the word “shall” carries a lot of weight in such matters.
At any rate, the final decision is Kemp’s. Regardless of what Malihi recommends, Kemp does not want to become the Republican secretary of state who ruled Barack Obama off the ballot in Georgia. Becoming a birther hero would not begin to compensate for the lasting infamy such a step would bring him, especially because such a ruling would be challenged in state or federal court and almost immediately overturned on any number of reasons. Kemp would then look like a fool and put an end to any further political ambitions he might have. I doubt that’s the course he will choose to take.
In the end, there is no chance whatsoever that Obama’s name will not be on the Georgia ballot come November.
Of course, ruling that Obama should remain on the ballot won’t make Kemp many friends among a certain small contingent of his own party, especially now that the hearing has excited their hopes of victory. But that’s the predicament in which state law and these foolish conspiracy mongers have placed him.
– Jay Bookman