Some cold water on overheated birther-mania

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

836 comments Add your comment

Arthur B.

February 2nd, 2012
6:34 pm

You know, David, Orly brought on witnesses to testify that the LFBC was forged because of the layers in the PDEF, right? Wouldn’t that give ALJ Malihi sufficient grounds to find that it was in fact a forgery?

Now, if he’s got the authority to find that it was a forgery, but finds the evidence unpersuasive, he’s also got the authority to find that he must accept it under the Full Faith and Credit clause, right? If he can pass judgement on the evidence you gave him, it doesn’t have to be the judgement you’re asking for.

Do you agree or disagree?

John Boehner's Tanning Bed

February 2nd, 2012
8:32 pm

Can I get a copy of Orly’s birth certificate? I think she is really Zsa Zsa Gabor.

David Farrar

February 2nd, 2012
9:20 pm

Arthur B.
February 2nd, 2012
6:34 pm

Again, the only thing the Hawaiian Health officials have stated, and I know you agree with me on this part: “The information displayed on that jpg picture copied from the Internet matches the information we have in our files, period.”

So if there was an error or a mistake in their files, the Hawaiian Health Officials would simply be verifying these mistakes as true and passing them on to the Court as true, when they are not. We are after proof, not what happens to be printed on a form nobody has yet seen.

ex animo
davidfarrar

Arthur B.

February 2nd, 2012
9:39 pm

@David Farrar — “the Hawaiian Health Officials would simply be verifying these mistakes as true and passing them on to the Court as true”
__

You are right, you and I agree on the first part, and in the sentence I quoted you have come right to the heart of the matter.

In the United States of America, we trust our state governments to keep track of vital records. It’s as simple as that: We trust them.

That’s what the Full Faith and Credit clause is all about — when it comes to certain matters that are entrusted to the states, the states have the last word.

I see that your analysis of the situation has gotten you to the right spot — there’s no doubt that the official records in Hawaii say that President Obama was born in Honolulu on August 4th, 1961. But the buck stops there — under the strict terms of our Constitution, full faith and credit is to be given to those records.

Arthur B.

February 2nd, 2012
9:57 pm

Oh, and David, one more thing.

You say you are after proof. Why? Do you have good reason to believe he was not born in Honolulu on August 4th, 1961?

Chilidog

February 2nd, 2012
9:57 pm

the slap down will be so sweet

David Farrar

February 2nd, 2012
9:58 pm

Arthur B.
February 2nd, 2012
9:39 pm

And again I have pointed out to you, the Malihi Court would have been glade to accept any type of verification Hawaiian Health Officials care to bestow, along with candid Obama’s birth certificate into evidence. However, there are two major problems with that hypotheses: One, before the court can accept the two birth certificates into evidence, the plaintiff side must have access to the original files in order to rebut. And, Two: candidate Obama wasn’t there to enter any evidence. And even if his lawyer was there in his place; he still couldn’t enter any exhibits or witnesses into evidence because his PTO wouldn’t allow him to.

That’s how bad this guy screwed up — and the reason why candidate Obama had no choice but to run away from this hearing with his tail between his legs, dragging his lawyer with him.

ex animo
davidfarrar

Arthur B.

February 2nd, 2012
10:04 pm

@David Farrar — “the Malihi Court would have been glade to accept any type of verification Hawaiian Health Officials care to bestow”
__

Now wait a minute. Are you telling me that when you say the thing we agree on (”The information displayed on that jpg picture copied from the Internet matches the information we have in our files, period.”), you are saying that that’s something that you and I know, but it’s not something that ALJ Malihi knows?

David Farrar

February 2nd, 2012
10:29 pm

Dena
February 2nd, 2012
6:29 pm

Good point. I think he, and the Secretary, are waiting until Friday so they can duck away for two whole days after the fact.

ex animo
davidfarrar

David Farrar

February 2nd, 2012
10:32 pm

Arthur B.
February 2nd, 2012
10:04 pm

I don’t know Arthur. My post says what it says. It’s right above you, for God sake.

ex animo
davidfarrar

Arthur B.

February 2nd, 2012
10:32 pm

@David Farrar — “I think he, and the Secretary, are waiting until Friday so they can duck away for two whole days after the fact.”
__

LOL, there’s something we can all agree on!

Arthur B.

February 2nd, 2012
10:38 pm

David, I’ll try to ask you the question more clearly.

Above, you said: ‘I know you agree with me on this part: “The information displayed on that jpg picture copied from the Internet matches the information we have in our files, period.”’

And I do agree.

So my question is this: If you know it’s true and if and I know it’s true, don’t you think ALJ Malihi also knows it’s true? And if it’s something he knows, doesn’t he have to use that knowledge in his search for the truth?

David Farrar

February 2nd, 2012
10:39 pm

Arthur B.
February 2nd, 2012
10:04 pm

(”The information displayed on that jpg picture copied from the Internet matches the information we have in our files, period.”), is something we can both agree on; yes. I thought you knew?

As for Judge Malihi; I really don’t know what he knows. Half the time I don’t even know what I know.

ex animo
davidfarrar

David Farrar

February 2nd, 2012
10:44 pm

Arthur B.
February 2nd, 2012
10:38 pm

And yes, as to that last part. Aren’t we all hear for that reason?

ex animo
davidfarrar

Dianna Cotter

February 2nd, 2012
11:22 pm

@David Farrar Thank you Sir. I am one of those who has been researching and publishing on Minor V. Happersett for some time. Much to Justia’s disgust. My prayers are with you, all the plaintiffs, the attorneys and of course Mr Kemp, and all of Malihi’s court. Thank you for having the courage of your convictions. Regardless of the outcome, you have walked the talk, and fought for all of us. Even those who refuse to accept that their messiah is less than a common criminal. You have my profound thanks. ~Dianna

David Farrar

February 2nd, 2012
11:28 pm

Dianna Cotter
February 2nd, 2012
11:22 pm

Thank you very much. I deeply appreciate your gesture. I do believe that is the first time anyone has every said that to me.

I am quite overwhelmed.

ex animo
davidfarrar

Gorefan

February 3rd, 2012
12:10 am

Mr. Farrar,

If you could indulge me, I have several questions for you about Ms. Daniels’ testimony. You may not be able to answer them and if not that is fine. In her testimony, Ms. Daniels mentioned her investigation turned up three birth dates associated with the President’s SSN (1890, 08/04/1961 and 04/08/1961). But in her affidavit in Barnett v. Obama SACV09-00082-DOC, her database information show four birthdates associated with the SSN. On page 13 of 14, there is a DOB of 1990.

So to my questions was it a conscious decision by Dr. Taitz and Ms. Daniels not to bring up this date as it might indicate that the public databases have errors in them? Or was it simply an oversight?

If the 1890 date is the DOB of the person whose SSn the President is allegedly using, than what is the 1990 date?

Dianna Cotter

February 3rd, 2012
1:36 am

“Thank you very much. I deeply appreciate your gesture. I do believe that is the first time anyone has every said that to me. ”

@David…. I am sincerely sorry to hear that. That is a simple crying shame. You are doing what you believe you have to as an American, you are fighting to preserve your country, and the foundations it was built upon. It is not only a right to question authority in America, it is fundamentally a duty to do so – it was the constitution which gave us this freedom and therein created America. This is what Reagan meant by freedom being only a generation away from being lost. If we do not fight for it… who will? Obots? I think don’t think so. They want the constitution out of their way.

You deserve not only recognition, but a lot of sincere thanks. I know for certain, there are thousands following your case cheering you on. It’s a shame to think you have been soldiering on with out knowing how much support you have.

I have been fighting this battle literally for years now. I have found that there is a dedicated and ever shifting cadre of people who will tear you down, insult you, demean you, and otherwise attempt to demoralize you to the point where you give up.

Ignore them.

Answer real questions from real people concerned enough to ask. Those are the folks who will thank you, even if they disagree you.

Generally the nasty naysayers are stuck on stupid. Obama supporters have too much of their ego’s invested now, if not a lot more than just their egos, they cannot abandon so much of themselves in admitting that people like us just might be right. From their perspective it would be personally devastating to them to they realize that we ARE right, and honestly, no one can fix stupid.

I look at it this way, I have been wrong before, and it didn’t kill me. In the case of Obama, I HOPE I am wrong, simply because the cost of being right is so unbelievably high, on so many levels. I just do not think I am.

Keep up the fight David. Hold on to the certainty that one day Obama will be revealed for the fraudulent usurper he is. It will happen one day, if we do not give up the fight.

Rest in the peace of God David. You are not alone!

~Dianna

David Farrar

February 3rd, 2012
8:08 am

Gorefan
February 3rd, 2012
12:10 am

You’ll have to ask Dr. Taitz. She is the resident expert on the SSN issue.

ex animo
davidfarrar

David Farrar

February 3rd, 2012
9:38 am

Dianna Cotter
February 3rd, 2012
1:36 am

Thank you. You are very kind. And I do appreciate all those who also wish me well. At the start I figured if the men of Lexington could gather at the town square and fire the shot hear round the world for liberty, I could at least stand up and try to get this done, even if I was all alone. Happily, I see that I am not alone, and our numbers are growing daily, and they know it.

ex animo
davidfarrar

Joe Hussein Mama

February 3rd, 2012
9:43 am

D. Farrar — “And besides..we ain’t saying he ain’t bonafied. All we’re saying is he ain’t proven it yet; that’s all.”

Constitution says he has.

Why do you hate America?

Joe Hussein Mama

February 3rd, 2012
9:48 am

D. Cotter — “You are doing what you believe you have to as an American, you are fighting to preserve your country, and the foundations it was built upon.”

By demanding that part of the Constitution be ignored and disregarded?

“Obots? I think don’t think so. They want the constitution out of their way.”

It is the “Obots,” as you colorfully term them, who are pointing out that the Constitution OBLIGES the State of Georgia to accept the word of the State of Hawaii — and that’s what Mr. Farrar is opposed to. If anyone’s trying to get the Constitution out of the way here, it’s Mr. Farrar.

Strenuous

February 3rd, 2012
10:03 am

Ms. Cotter – You are “researching” Minor v. Happersett? What’s to “research”? The opinion has been published, holding that women, even those admitted to be citizens (and stipulated to be such) don’ have the right to vote. You apparently like the observation in Minor, but what about the holding in the Wong case that answered an open question?

Perhaps 3 years of law school would help.

David Farrar

February 3rd, 2012
10:06 am

Joe Hussein Mama
February 3rd, 2012
9:48 am

Again, Georgia would have gladly accepted the word of the State of Hawaii as verification that the information contained on candidate Obama’s jpg image on his What House dot gov website accurately reflected the same information in their files, had the Defendant, or his attorney, been there to enter them into evidence. The problem is, there are factual, ministerial, and certification defects in both of these two documents that would have made it almost impossible to enter these two documents into evidence, and certainly not without complete access to candidate Obama’s original natal files by the Plaintiff to prepare their rebuttal.

ex animo
davidfarrar

David Farrar

February 3rd, 2012
10:13 am

Strenuous
February 3rd, 2012
10:03 am

Actually, Minor was breaking news of the day. It was the first time the SCOTUS established the legal precedent that women were “equal” to men, a point not lost upon the women suffrage movement at the time, and still remains one of the most important legal precedents set by the US Supreme Court.

ex animo
davidfarrar

ex animo
davidfarrar

Arthur B.

February 3rd, 2012
10:14 am

@David Farrar — “The problem is, there are factual, ministerial, and certification defects in both of these two documents that would have made it almost impossible to enter these two documents into evidence”
__

David, let me remind you of what you’ve said several times: ”The information displayed on that jpg picture copied from the Internet matches the information we have in our files, period.”

Nothing in that sentence has anything to do with whether documents have been entered into evidence.

That’s the point many of us have been telling you repeatedly. It is widespread common knowledge that Hawaiian officials have confirmed the truth of certain key pieces of the President’s birth data, and that is sufficient for ALJ Malihi to recognize the applicability of the FF&C clause to this case.

Joe Hussein Mama

February 3rd, 2012
10:16 am

D. Farrar — “Again, Georgia would have gladly accepted the word of the State of Hawaii as verification that the information contained on candidate Obama’s jpg image on his What House dot gov website accurately reflected the same information in their files, had the Defendant, or his attorney, been there to enter them into evidence.”

You don’t get it. The BC doesn’t HAVE to be entered into evidence. The State of Hawaii verifies and validates it, and the State of Georgia is OBLIGED to accept the word of Hawaii *on its face.*

There’s no ‘entering of evidence’ involved. Under the Constitution, the mere word of another State concludes the matter.

“The problem is, there are factual, ministerial, and certification defects in both of these two documents that would have made it almost impossible to enter these two documents into evidence”

Irrelevant to the Constitutional procedure.

“and certainly not without complete access to candidate Obama’s original natal files by the Plaintiff to prepare their rebuttal.”

Irrelevant since Hawaii has already spoken. As I’ve told you more than once, you can’t rebut the document, since it is presumptively valid. Your only hope is to rebut the validation process *itself,* yet you keep focusing on the document.

Let’s be frank, Mr. Farrar. You keep complaining about not getting access to documents. Given that, it’s clear that you have only suspicion and no evidence. What you and Ms. Taitz are after is a fishing expedition. You *think* there’s something wrong with Obama’s BC, and you feel sure that if you could just *examine* it, that you’d find some glaring error to support your case.

The problem is that on the matter of the BC’s validity, the Full Faith and Credit Clause has already preempted you. The document’s valid PER THE CONSTITUTION.

You’re not going to overcome a Constitutional provision, so your only hope is to show that Hawaii somehow did something wrong when it validated the document. You *can’t* defeat the document, so you have to defeat the process, if you are to prevail.

However, I don’t hold out any hope for you, since you and Ms. Taitz won’t adjust your target.

David Farrar

February 3rd, 2012
11:26 am

Arthur B.
February 3rd, 2012
10:14 a

“It is widespread common knowledge that Hawaiian officials have confirmed the “truth” of certain key pieces of the President’s birth data, and that is sufficient for ALJ Malihi to recognize the applicability of the FF&C clause to this case.

There are factual, ministerial, and certification defects in both of these two documents that would make it almost impossible to enter these two documents into evidence. In light of this; the applicability of the FF&C clause to this case would simply attempt to pass these errors and omissions into the court record, without even the possibility of rebuttal.

As I stated above, the court would certainly accept the application of the FF&C clause, and give it its just due, but it would not be, in and of itself, dispositive. The Court would have to first give the Plaintiff access to the documents’ original source if the defendant wanted to enter these documents into the court record as evidence, with or without your FF&C thingy.

ex animo
davidfarrar

David Farrar

February 3rd, 2012
11:34 am

Joe Hussein Mama
February 3rd, 2012
10:16 am

I think you are facially incorrect. According to Judge Malihi finding, candidate Obama did have to submit his birth certificate into evidence at this tribunal to meet Georgia’s statutes.

ex animo
davidfarrar

Arthur B.

February 3rd, 2012
11:45 am

@David Farrar — “As I stated above, the court would certainly accept the application of the FF&C clause, and give it its just due, but it would not be, in and of itself, dispositive. The Court would have to first give the Plaintiff access to the documents’ original source”
__

Sorry, David, that’s absolute nonsense. Give a legal citation if you like, but what you’ve stated is completely alien to the Constitution. As I said to you last night, we trust the states to maintain vital records. Get it? We trust them. Nobody has to prove anything once a state has spoken.

It takes a whole lot of evidence to overcome the FF&C clause, and you’re free to try and come up with some. But it requires absolutely no evidence to support it.

Joe Hussein Mama

February 3rd, 2012
11:55 am

D. Farrar — “In light of this; the applicability of the FF&C clause to this case would simply attempt to pass these errors and omissions into the court record, without even the possibility of rebuttal.”

That’s correct. That’s what we keep telling you. You can’t rebut the Constitution, and there’s already a Constitutional presumption of validity attached to the Obama BC.

“As I stated above, the court would certainly accept the application of the FF&C clause, and give it its just due, but it would not be, in and of itself, dispositive.”

Your argument is specious and jejune. A Constitutional directive must be, be definition, dispositive.

“The Court would have to first give the Plaintiff access to the documents’ original source if the defendant wanted to enter these documents into the court record as evidence, with or without your FF&C thingy.”

Nope. There’s no point, since the only avenue of attack you have open to you is to rebut the validation process *itself.* You continue to fail to grasp this.

In any event, the Hawaii validation is all that’s needs to be in evidence.

“I think you are facially incorrect. According to Judge Malihi finding, candidate Obama did have to submit his birth certificate into evidence at this tribunal to meet Georgia’s statutes.”

Which would be an easy avenue for Obama’s attorneys to drive an appeal through, were you actually to prevail. Which you won’t.

Chilidog

February 3rd, 2012
11:56 am

Oh David well,
You came and you filed your objections,
But they sent you away.
Oh, David well,
You fought the usurper election,
And we need you today.
Oh, David!

Nathanael

February 3rd, 2012
12:11 pm

@davidfarrar – “the Hawaiian Health Officials would simply be verifying these mistakes as true and passing them on to the Court as true, when they are not. We are after proof, not what happens to be printed on a form nobody has yet seen.”

Proof you already have. Full Faith and Credit says that, with respect to their own records, the truth is whatever the State of Hawaii says it is, and that’s the end of the story. The US Constitution says neither you nor any court in this country, up to and including SCOTUS (and certainly not an administrative court), has standing to second guess Hawaii. Once Hawaii has signed off on it, the court of last resort has spoken. And “raised doubts” doesn’t come close to getting you round the Constitution.

Please cite the statute, David, that says the ALJ is not permitted to go outside the case record when reaching his decision, that he’s not allowed to so much as look out his window if the complainant said it’s raining. If the judge googles “Obama birth certificate” and follows the links to the White House PDF, Fuddy’s letter, and the multiple official statements from everyone up to the governor, where’s the regulation that says he has to pretend he doesn’t know?

And don’t forget this is an administrative court, with relaxed rules of evidence. Malihi is quite accustomed to accepting things such as photocopies of old utilities bills as admissable proof of residence. All three complainant counsels have already provided the court with at least that much w.r.t. Obama’s birth certificate; two of the counsels have already stipulated to the accuracy of the information therein, while your own counsel was kind enough to provide, in addition to two copies of the birth certificate, a sworn affidavit laying out the entire provenance complete with official corroborating statements from the state of Hawaii at every step along the way.

I guarantee that already puts Obama’s birth certificate head and shoulders above the kind of evidence Malihi is generally accustomed to admitting. And the fact that it was introduced by your side, rather than the respondent, is of absolutely no relevance. If the photocopies Taitz provided are unclear, he can download a copy for himself from the White House website, he can view Fuddy’s letter on that same site, and he can go read the statements on the Hawaii DOH website vetting the White House PDF.

At that point, there will be absolutely no doubt left in Malihi’s mind that the White House PDF is a true and accurate representation of the information in Hawaii’s database, and in noting that Hawaii has signed off on it he will understand that his court has neither standing nor jurisdiction to set aside the Constitution. Any doubts you think you’ve raised can’t hold a candle to that.

Good luck.

Strenuous

February 3rd, 2012
12:12 pm

Ex animo is a silly pomposity I would expect from a nutter. How do you like being Orly Taitz’s latest “:plaintiff” Mr. Ex Animo?

A nutter just like the rest of the birthers. You deserve Orly Taitz. And she deserves you.

Race. Itsa. Locator.

Whatever4

February 3rd, 2012
12:15 pm

D. Farrar — The problem is, there are factual, ministerial, and certification defects in both of these two documents that would have made it almost impossible to enter these two documents into evidence, and certainly not without complete access to candidate Obama’s original natal files by the Plaintiff to prepare their rebuttal.

Do you have citations to cases where someone has successfully gained acces to the original files to dispute what’s in a record? That certainly would have helped your case.

Whatever4

February 3rd, 2012
12:18 pm

Sorry, hit enter too soon.

Did the factual and ministerial defects make it into your case? I remember the testimony mentioning the numbering system, but nothing more.