Someone asked me whether I had heard about this lawsuit over Sen. Obama's citizenship. I told him I hadn't, but that it was unlikely to go anywhere in any court for lack of standing. Because this news story has some legal crossover, however, I figured I would get a more informed opinion over it. After sifting through about 10,000 pages of drivel from both the left and the right (and some funny legal ones from Above the law), I have been able to conclude that this lawsuit has not gotten very far, and in short order, will be dismissed.
From what I can tell, Philip Berg is an attorney in Pennsylvania who is bringing this action pro se against Sen. Obama. (Above the Law nominated Berg for lawyer of the day on August 25). See generally Below the Beltway: And That, It Would Seem Is That (discussing this suit and linking to other similar citizenship lawsuit challenges); Mystery solved*: Barack Obama was American-Born (playing on the conspiracy theorists attacking both parties). I have found a copy of the complaint here, but was unable to access it through the Eastern District of Pennsylvania website. At least according to that document, the case number is 08cv4083, and is captioned Philip J. Berg, Esquire v. Barack Hussein Obama, et al.
The complaint, among other things, seeks injunctive relief to prevent Sen. Obama from running based on his alleged non-citizenship. He also brings suit against the DNC for essentially failing to do the same thing as him. Curiously, the complaint references many internet allegations (and Wikipedia), but nothing actually concrete. I'll reserve comment on the merits, and instead focus on two problems, which will likely result in its dismissal.
First, the timing issue. He's been running for months, so the thought that there is a pressing need to act now, where no one has acted before, would lead most lawyers to the conclusion that a restraining order (and particularly an emergency injunction) is probably a loser.
Regarding the rest of the claims, I would imagine the entire complaint is going to be dismissed for lack of standing, particularly since the complaint does not address standing in any form. The question becomes (to me anyway), who would have standing to bring a claim against someone running for president? I think the answer is that there is only one person, the current president. Maybe there are others (DNC national committee chair, another party's nominee), but an ordinary citizen is, in all likelihood, not one of them. The remaining question is whether this lawsuit is frivolous enough to merit sanctions.
As it currently stands, however, it seems that the case was delayed pending service of process. See Motion denied in Obama lawsuit. That article indicates that the senator has been served, so I would imagine the actual dismissal can follow in short order, followed by the standard request for costs.
I may post the link to an article based on the court's response, but I doubt I will devote much, if any, more time on this topic. Assuming it gets dismissed, I'll be curious to see how much more time and money gets wasted on trying to appeal it. Cf. Philadelphia Attorney Phil Berg Demands Disbarment of (3) U.S. Supreme Court Justices. If only Jonathan Lee Riches would file a complaint out of this one.
Monday, September 08, 2008
Berg v Obama citizenship TRO lawsuit
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13 comments:
Great post. I've seen some right-wing idiots on hannity.com rattling on about this lame lawsuit. Glad to see someone who knows something about legal affairs put it into true perspective. Frivolous doesn't begin to describe this stupidity.
Do you honestly believe that an ordinary citizen does not have standing on a constitutional issue?
I shudder to think of the ramifications of that lack of power by the people.
This last point is, in all likelihood, made by someone who is not a lawyer. As it is written, it is painfully incomplete and therefore incorrect. And I'm not going to give you a free lesson on standing, sorry.
In a semi-related comment and general FYI: Judge Judy is not always correct in her articulation of the law, but generally correct in her assessments of the merits of the case.
It appears that the in your view, the constitution is only enforceable if the current president says it is. This leaves cold chills up and down my spine. If the framers of the constitution did not intend for there to be any recourse by the people, why bother writing it in the first place. I personally have no idea where Obama was born or if his citizenship was indeed surrendered. But as a voter and citizen, I believe I have the right to know. I really hope that the Judge is wise enough to order the documents be turned over to him/her, review them, and THEN decide if the case should go forward. There are potentially 300 million + victims here.
This is another example of someone who does not know what he or she is talking about. First and foremost, this argument is legal gibberish. I was going to attempt to respond, but there is no way for me to do so without sounding overly condescending.
The short, non-elitist, answer, however, is that the constitution is enforceable to the extent it is applicable to the person injured. Without question, it is an absolutely safe assumption that both Obama and McCain, along with every other presidential candidate who goes through the application process is an American citizen.
If it was not, someone, whether it be the current president or one of the other presidential candidates would have certainly raised this issue many moons ago.
Interesting stuff. You may be right about the Federal standing issue, here is a link to an article on that http://www.michiganlawreview.org/firstimpressions/vol107/tokaji.htm
The Federal issue may now be moot as a second suit has recently been filed in Washington State Court that has asked the Washington Secretary to verify Obama's credentials (is he a natural born citizen) or take him off the ballott. A third lawsuit has been filed in Hawaii asking that a copy of the "vault" birth certificate be produced.
The question remains why Obama does not just produce the paperwork and put this to bed.
The Michigan Law Review article is linked here. It is very informative, thank you. Anybody interested in an actual legal analysis on the subject should read that article before sticking their foot in their mouth through an uninformed comment on why this suit has merit (which it does not). See generally Candidates Hit Back Hard, Fast Against Online Attacks (discussing a host of the rumors swirling around all four of the candidates and what they have been attempting to do about it).
To answer your question regarding why Obama simply does not produce the paperwork is, to me, rather simple: it's not his burden to do so and until the court tells him to do so, there's no point. Why should he waste his time and money on giving anything to this guy's frivolous suit and risk him gaining actual credibility?
He wasted time and money filing appeals for dismissal. How much harder, time and money wise, to submit the requested documents and put it to rest. The there is a legal case showing not only is Berg off his rocker, but those who challenge or question his citizenship are proven off as well. The dismissal request says I have something to hide, IMHO.
If the suit is frivolous, Berg pays all of the costs and fees. A motion to dismiss means nothing more than the moving party believes that the other side has no case.
ECL has made the most significant point that often gets overlooked in reference to political rumors; the burden of proof is on the accuser, not the accused. This is one the most significant tenets of the American legal system, as it assures limitations to frivolous and baseless lawsuits. It is curious that segments of our country's population, because a particular politician is affiliated with another party/group/organization other than their own, who demand that he/she be held up to scrutiny beyond what is leveled on the average citizen. Why not provide a birth certificate? The simplest answer is that our system of justice says that noone, neither political nor any other citizen, need to defend themselves from baseless accusations.
ECL...you are an elitist smug lawyer with no comprehension of how a regular american thinks. To us, it is just a simple matter-just show us the damn Birth Certificate and let's move foward. Afterall, this man is being considered for POTUS. Instead, as usual, guys like you and Obama (oh great and wonderful lawyer types) want to wrangle around in legal speak so you can sound intelligent.
Regarding the 10/24 9:02 PM comment, excellent points. Regarding the 10/25/08 2:02 comment, I hope someone sues you someday about something frivolous and you see how ridiculous your comment actually is.
Smug...that's funny. If you read through even a months' worth of my posts instead of this one, you would realize how doofy that comment is. I am the least smug person on the internet. Read the whole blog and you'll see what I mean.
Lastly, Obama's birth certificate has been released already and it has been proved valid for legal purposes. According to snopes, Berg's lawsuit has been dismissed as frivolous, just as I predicted. If I find the opinion, I will post it.
Instead of worrying about whether the president has a birth certificate or not, why not put some collective energy into thinking about how to create a new industry that will put thousands of people to work.
The Berg lawsuit has been dismissed. I haven't read the opinion yet, but someone analyzed it briefly here.
The question now is how much more money is this guy willing to spend to solidify his losing point.
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