Refusal to follow subpoena 'no less than declaration of total dictatorial authority'
A Georgia resident contending Barack Obama is ineligible for the state’s 2012 presidential election ballot is asking that a court cite him with contempt.
In a motion filed in the case pending before Georgia Administrative Law Judge Michael Malihi, attorney Van Irion, representing David P. Weldon, urged the court not to overlook the fact that Obama had been subpoenaed for last week’s hearing. Obama’s attorney, he pointed out, acknowledged the subpoena by asking that it be quashed. But when the judge refused his request, he but told a state elections official he would not participate.
“Plaintiff Weldon moves this court to refer an order for contempt to the Superior Court for confirmation that defendant Obama is in contempt of court,” the motion says. “Grounds for this motion are that defendant Obama willfully defied this court’s order to appear and testify during this court’s hearing of January 26.”
The motion explains that when Malihi refused to quash the subpoena, Obama and his attorney, Michael Jablonski, “requested that the Secretary of State [Brian Kemp] halt the proceedings. … The letter ended with a statement that the defendant and his attorney would suspend all further participation in the proceedings of this court pending response.”
But after Kemp confirmed later that day that the hearing would continue and said that failing to participate “would be at the defendant’s peril,” Obama and his lawyer still refused to attend.
The letter from Obama’s lawyer to the state official, “coupled with the defendant’s willful refusal to comply with an order of this court, represent a direct threat to the rule of law,” the motion says. “The … actions represent a direct threat to the entire judicial branch and the separation of powers.”
Willfully ignoring a court subpoena is “unprecedented,” Irion writes. “While past presidents have litigated against subpoenas, in every case those presidents acknowledged and respected the authority of the judicial branch. … In the instant case the defendant did not appeal to a higher court, and instead instructed the Secretary of State that he would not participate. … When the Secretary of State refused to act in an unlawful manner the defendant ignored the Secretary of State, violated an order of this court, and apparently instructed his attorney to act in a manner that violates the professional rules of conduct of this state.”
Obama’s action, he says, “amounts to no less than a declaration of total dictatorial authority. Such declaration cannot go without response from this court. Failure to respond to the defendant’s contumacious conduct would amount to an admission that this court and the judicial branch as a whole do not have the authority granted to them under articles III and IV of the Constitution.”
Irion, representing Weldon, and several other attorneys argued before Malihi last week to have Obama’s name stricken from the Georgia state ballot.
The hearing was held on concerns raised by citizens of Georgia under a state law that allows voters to challenge the eligibility of candidates on the state’s ballot. It is the states that run elections in the U.S., and national elections are just a compilation of the results of the 50 state elections.
The state law requires “every candidate for federal” office who is certified by the state executive committees of a political party or who files a notice of candidacy “shall meet the constitutional and statutory qualifications for holding the office being sought.”
State law also grants the secretary of state and any “elector who is eligible to vote for a candidate” in the state the authority to raise a challenge to a candidate’s qualifications, the judge determined.
Citizens raising concerns include David Farrar, Leah Lax, Thomas Malaren and Laurie Roth, represented by Orly Taitz; David Weldon represented by attorney Van R. Irion of Liberty Legal Foundation; and Carl Swensson and Kevin Richard Powell, represented by J. Mark Hatfield. Cody Judy is raising a challenge because he also wants to be on the ballot.
The controversy over Obama’s eligibility dates to before his election in 2008. Some contend he was not born in Hawaii and that the birth documentation the White House released in April is a forgery.
Others say it doesn’t matter where he was born, as his father never was a U.S. citizen.
The Constitution requires presidents to be “natural-born citizens,” and experts say that the Founders regarded it as the offspring of two U.S. citizens.
Jablonski had asked Malihi to quash the subpoena, requested by Taitz. When the judge refused, Jablonski wrote to Kemp.
The attorney told Kemp that “serious problems” had developed in the hearings “pending before the Office of State Administration Hearings.”
Jablonski said, “At issue in these hearings are challenges that allege that President Obama is not eligible to hold or run for re-election to his office, on the now wholly discredited theory that he does not meet the citizenship requirements.”
He said the judge had “exercised no control” over the proceeding.
“It threatens to degenerate into a pure forum for political posturing to the detriment of the reputation of the state and your office. Rather than bring this matter to a rapid conclusion, the ALJ has insisted on agreeing to a day of hearings, and on the full participation of the president in his capacity as a candidate,” Jablonski wrote.
Kemp said the hearing, however, was in line with Georgia law, and he would be reviewing Malihi’s recommendations in the case.
He also had a warning about the cost of not showing up for a court hearing.
“Anything you and your client place in the record in response to the challenge will be beneficial to my review of the initial decision; however, if you and your client choose to suspend your participation in the OSAH proceedings, please understand that you do so at your own peril.”
Top constitutional expert Herb Titus contends that a “natural-born citizen” is born of parents who were U.S. citizens at the time of the birth. The argument also is supported by a 19th-century U.S. Supreme Court decision, Minor vs. Happersett in 1875. The case includes one of very few references in the nation’s archives that addresses the definition of “natural-born citizen.”
That case states: “The Constitution does not in words say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. At common law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives or natural-born citizens, as distinguished from aliens or foreigners.”
An extensive analysis of the issue was conducted by Titus, who has taught constitutional law, common law and other subjects for 30 years at five different American Bar Association-approved law schools. He also was the founding dean of the College of Law at Regent University, a trial attorney and special assistant U.S. attorney in the Department of Justice.
“‘Natural born citizen’ in relation to the office of president, and whether someone is eligible, was in the Constitution from the very beginning,” he said. “Another way of putting it; there is a law of the nature of citizenship. If you are a natural born citizen, you are a citizen according to the law of nature, not according to any positive statement in a Constitution or in a statute, but because of the very nature of your birth and the very nature of nations.”
If you “go back and look at what the law of nature would be or would require … that’s precisely what a natural born citizen is …. is one who is born to a father and mother each of whom is a citizen of the U.S. or whatever other country,” he said.
“Now what we’ve learned from the Hawaii birth certificate is that Mr. Obama’s father was not a citizen of the United States. His mother was, but he doesn’t qualify as a natural born citizen for the office of president.”
In an extensive proposal regarding what the judge’s determination should include, Irion wrote that because of Obama’s failure to meet the understood meaning of “natural born citizen,” and the fact he “presented no argument on the substance of the issue at hand,” he should be determined to be ineligible.
Irion’s proposal said Obama should have had the entire burden of proof in the case, because “the Supreme Court of Georgia has clearly established that it is the affirmative obligation of a candidate to establish his qualifications for office, and that the burden is not upon the challenger.”
His suggestions said while the Democratic Party of Georgia has a right to determine its membership, that right coexists with the state’s right to govern.
“The party is free to submit any name as their next presidential candidate. However, Georgia is not required to accept such submissions and waste taxpayer money on ballots where such candidates are clearly not qualified to hold the office sought.”
He also pointed out that voters do not have the authority to waive constitutional requirements.
“Constitutionally protected rights are held inviolate regardless of the majority’s desire to violate them. Without such protections, any law could be enacted simply because it becomes popular. …. Congress could legalize the killing of all Jews, for example, as was done in World War II Germany. Constitutional requirements are absolute, and must be followed regardless of how popular or unpopular such requirements may be.
“Defendant’s presumption that popular vote overrides the Constitution runs contrary to the Constitution.”
In Taitz’ proposal to the judge, she raised concerns about elections fraud, evidence of forgery in the birth certificate image, Social Security fraud and the use of multiple last names
“Plaintiffs assert that based on law and fact, Obama is not eligible to be on the ballot in the state of Georgia as a presidential candidate and such finding should be forwarded to the secretary of state of Georgia,” she wrote.
She said the contempt “exhibited by the defendant … is so egregious that it warrants forwarding of the evidence and findings … to the attorney general of Georgia for criminal prosecution.”
“It is common knowledge and described at length in defendant Obama’s memoirs, such as ‘Dreams from my Father,’ that Obama’s father was a foreigner. Obama senior was a foreign exchange student who resided in the U.S. for a couple of years while he got his education and he returned to his native Kenya. At the time of Obama’s birth, his father, who came from Mombasa, Zanzibar region of Kenya, was a British ‘protected person’. Obama automatically inherited his father’s British citizenship upon the British Nationality act of 1948. Upon the declaration of the independence of Kenya on December 11, 1963, Barack Obama automatically received his Kenyan citizenship on December 12, 1963.”