Republicans may want to just keep away from open mikes for a while. After a ranking Republican in California was caught describing in disgusting detail sex with a lobbyist, Republican Rep. Jean Schmidt (R-Ohio) was caught whispering to a constituent that she agrees that President Obama is not a legitimate president due to his birth.
On the tape, a clearly unhinged supporter is insisting the Obama can’t be a president because of his birth. Schmidt is heard saying “M’aam, m’aam. I agree with you, but the courts don’t.”
It still beats relations with a lobbyist, but Schmidt is in the unenviable position of stating either than she believe Obama is a foreign-born, constitutional pretender or say that she will say anything to constituents.
The case of “Major” Fred Cook was decided on July 16, 2009.
The Notice of Appeal in the case filed by Orly Taitz stated in its text that it was timely filed on September 14, 2009, 60 days after the entry of the final order closing the case on July 16th
But the notice was not filed by Orly until 3:12 AM on September 15, 2009.
September 15th. A date that seems to be a day late.
So Cook is sheer out of luck. He lost his request for active duty. He lost his case. He lost his security clearance. He lost his job.
And now he probably has lost his appeal because of attorney malpractice.
I have read on the web that Orly has tried to make it up to him. She posted his resume on her website. As they say in the Army, BFD [big f***ing deal].
I recall posting some gratuitous advice to Cook several months ago. It was to fire Taitz and get a real lawyer.
http://ohforgoodnesssake.com/?p=3173
Vince,
There’s a reason you copy and paste everything you find, but always fail to do the same with the Constitution. Nothing in the Constitution would support your assertion.
The U.S. Constitution DOES NOT state that removal of the President may only be by impeachment.
[youtube=http://www.youtube.com/watch?v=OQrs_5KOIRc&hl=en&fs=1&]
This ignorance is becoming painful. “If the Senate certified the election of a president who fails to meet the qualifications mandated by the Constitution, that Act is repugnant to the Constitution.” That is wrong. The Senate does not certify the election of the President.
Read the Constitution. The President of the Senate [the Vice President] in the presence of BOTH the Senate and the House opens all certificates, and has them counted. The person with the most votes for President shall be the President. 12th Amendment.
Readers, look at the Constitution yourselves. Art II, sec. 4 provides the President shall be removed from office on Impeachment. Art I, sec 2, last clause, says the House has the sole Power of Impeachment. For 220 years, impeachment has been the sole means for removal of a President.
Contrary to his claim, “the DC statute is the law of the land” only insofar as it is made pursuant to the Constitution. The Constitution, not the DC Code, is the supreme law of the land. The DC Code is subject to Constitution, and DC laws inconsistent with the Constitution have repeatedly been struck down by the Supreme Court. Applications of DC laws in a way that violates the Constitution are also unconstitutional.
And he keeps getting off the point. Where is that case holding that the DC law applies to Presidents, federal judges, or Members of Congress? BIRTHER has come up with nothing.
Has Leo or anyone else come up with any federal precedent? No. The entire draft writ above has no federal citations or sources at all. It is full of state cases.
And BIRTHER has not responded to the fact that Antieau never cited the use of the writ against a President, judge or Member anywhere in his treatise.
BIRTHER may not like my assertion that certification under the 12th Amendment can only be overturned by impeachment, but that is what the Constitution says. If he does not like it, get it amended.
Vince,
Nothing in the U.S. Constitution makes impeachment the exclusive means of removal.
If the Senate certified the election of a president who fails to meet the qualifications mandated by the Constitution, that Act is repugnant to the Constitution.
Your assertion that the legislature, by certifying a person not qualified to hold that office, can only be undone by the same partisan, incompetent, weasels, that cared more about self-interest and political party than country, in the first place, is proposterous.
If you want to challenge the protections afforded by the DC law, on constitutional grounds, you are welcome to do so. However, until a court of competent jurisdiction supports your claim, the DC statute is the law of the land.
BIRTHER ought to read Antieau himself. Here is the list of those held to be public officers. Where does Chester list the President? The judges or justices of the federal courts? The Members of Congress? The answer is nowhere. There is absolutely no precedent for use of the writ against the President. The same goes for High’s treatise from the Gay Nineties. There is no mention of federal officers, just a long compilation of state cases.
QUOTE The following have all been held to be public officers for the purpose of quo warranto actions:
Aldermen2
City judges3
City treasurers4
Constables5
Councilmen6
County board members7
County commissioners8
County health officers9
County surveyors10
County treasurers11
Deputy building inspectors12
Governors13
Harbor masters4
Justices of the peace15
Lieutenant governors16
Mayors17
Members of boards of education18
Members of municipal boards19
Members of state adult authorities21
Members of state legislatures22
Members of township board of supervisors23
Pilot of port authority24
Policemen25
Police chieP6
Precinct committeeman27
Secretary of city board of health28
Sheriff29
State engineer30
State senator31
Superintendent of public education32
Superintendent of public works33
Teachers34 and
Town marshals3
The idea that the DC Code supersedes the constitution is ridiculous.
The Constitution of the United States of America and the “Laws of the United States which shall be made in Pursuance thereof” is the “supreme Law of the Land.” Art. VI, Cl. 2.
A law that would allow a mere district court to supersede the exclusive power of impeachment of the House is not a law in pursuance of the Constitution.
The DC Code can apply to appointed District and Federal officials holding office in the District of Columbia. But it would be unconstitutional to attempt to apply it to the national offices of President or Vice President, because such an application would be inconsistent with the sole power of impeachment vested in the House. In a conflict between the constitution and a statute, the constitution always prevails.
The entire theory is preposterous. A Member of Congress holds a public office of the United States. This theory would allow a District Court to remove a Member of Congress, even though the Constitution expressly provides for expulsion by a 2/3rds vote of a House.
And where is that federal case allowing a quo warranto against President, Vice President, federal judge or Supreme Court justice or any Member of Congress? There is no such case.
In 220 years of history under the Constitution, NO ONE has EVER used this method against the national officers, judges or Members of Congress. Leo, Orly and BIRTHER are either so brilliant that they see what no other constitutional scholar or jurist has ever seen before — or maybe they are just a little deluded by a little self-taught constitutional learning.
And I do not respect BIRTHERS threat of a military junta. The armed forces have a lot more respect for the constitution and knowledge about than BIRTHER or Orly.
Mike Appleton,
The history and purpose of quo warranto is clear.
I suggest you read:
“The Practice of EXTRAORDINARY REMEDIES” by Chester James Antieau (1987) —look at the chapter on quo warranto.
and
“A TREATISE ON EXTRAORDINARY LEGAL REMEDIES…” by James L. High (1896)
Vince, it appears that birthers do not understand the history and purpose of the writ of quo warranto. Ms. Taitz’ clients would be better served were they to litigate pro se. Oh, what fools these racists be!
Vince,
You’re chasing your tail.
Yes. The House has the sole power to impeach.
No. Impeachment IS NOT the only method of removal.
District of Columbia Official Code
Title 16, Chapter 35, Subchapter I
§ 16-3501. Persons against whom issued; civil action.
A quo warranto may be issued from the United States District Court for the District of Columbia in the name of the United States against a person who within the District of Columbia usurps, intrudes into, or unlawfully holds or exercises, a franchise conferred by the United States or a public office of the United States, civil or military. The proceedings shall be deemed a civil action.
Don’t worry. If Obama is found to not meet the constitutional qualifications, and refuses to vacate the office, the U.S. Armed Forces will be happy to show him out.
Well, this is interesting. An entire writ of quo warrant has been drafted by (or for) Orly Taitz for filing in the District Court for the District of Columbia, the only federal court with jurisdiction. Here it is:
http://www.scribd.com/doc/14703418/File-Writ-of-Quo-Warranto-on-Barack-Hussein-Obama-II
It is incoherent. It goes on for nearly 100 pages and tosses in every single birther meme imaginable. But it does cite the source of the stuff BIRTHER just posted.
Burr W. Jones, Law of Evidence in Civil Cases, sec. 193, 2d Ed. 1908, pp. 234-35.
1908? Is that not more than 100 years ago?
WTF? Also, everything in the excerpt above pertains to state cases. There is not one single federal case cited.
The writ was never filed. Taitz is not a member of the DC Bar, and probably ineligible because her law school was unaccredited. As we discussed in other threads, it seems she could not get ANY DC lawyer to sign on. So she filed in the Central District of California.
Any DC lawyer who did sign would have been risking sanctions from the court. Lawyer Hemenway filed a case with a frivolous “interpleader” theory, and Judge Robertson ordered sanctions. In the end, the lawyer was let off with a reprimand because of his age.
To any DC Bar Member who signs on: “Be afraid. Be very afraid.”
This crazy quo warranto idea is a pet theory of Leo Donofrio, who is not admitted in DC, and has yet to entice any DC lawyer to take up his tilting at windmills.
Frivolous legal theories have a short shelf life at the Turley blog.
It does not matter what the burden of proof may be in a quo warranto proceeding, because that proceeding is totally irrelevant to the removal of the President, the Vice President, and all federal judges.
Those officials have tenure under the Constitution, four years for President and VP, and good behavior for judges. Those officials can only be removed by impeachment by the House and conviction by 2-3rds of the Senate.
No American court case has ever sustained a quo warranto proceeding against the President or Vice President or any federal judge. For the entire history of the Constitution, removal of those officers has been exclusively by impeachment.
”The House of Representatives … shall have the sole Power of Impeachment.”
That is what it says in the Constitution.
Article I, section 2.
Vince and Mike; pay attention.
Burden in quo warranto proceedings.
-Attention should be called to the fact that the ordinary rules as to the burden of proof do not apply in quo warranto proceedings. One who is exercising the privilege of a public office is considered an usurper unless he can maintain his title; and in a proceeding by the public, the burden of showing his right to the office is cast upon the respondent.(42) If the defendant is unable to show good title to the office the people are entitled to a judgment of ouster. (43) It is no defense to the incumbent that a relator who seeks to assert his right may fail to establish such claim; judgment of a motion may nevertheless be rendered; (44) but where the proceeding is on the relation of a person claiming title, he has the burden of proof to establish his claim.(45) In quo warranto proceedings undertaken by the people the burden is so far cast upon the respondent that he cannot rely upon presumptions, but he must prove the continued existence of every qualification necessary to the enjoyment of the office.(46) Although the proper official certificate is prima facie evidence of the election to an office,(47) it is a familiar rule that the certificate and returns on which it is based are open to investigation and that judgment will be rendered according to real facts.(48)
43- People v. Ridgley, 21 Ill. 67; People v. Utica Ins. Co., 16 Johns. 363, 8 Am. Dec. 243; State v. Harris, 3 Ark. 670. 36 Am. Dec. 460, and cases cited above.
44- State ex reI. Swenson v. Norton, 46 Wis. 332; Relender v. State ex rel. Utz. 149 Ind. 283, 49 N. E. 30; Clark v. People, 16 Ill. 217. Nor does a failure of defendant prove the title of relator to the office, People v. Thacher. 66 N. Y. 626. 14 Am. Rep. 312.
45- Peoplev. Thacher, 66 N. Y. 626, 14 Am. Rep. 312; People v. Lacoste. 37 N. Y. 192; Miller v. English. 21 N. J. L. 317; State ex rel. Blessing v. Davis, 64 Neb. 499. 90 N. W. 232; Ellis v. May, 99 Mich. 538,68 N. W 483; People v. Nostrand. 46 N. Y. 375.
46- State v. Beecher. 16 Ohio. 723; People v. Mayworm. 6 Mich. 148; State ex rel. Blessing v. Davis 64 Neb 499. 90 N. W. 232; Tillman v. Otter. 93 Ky. 600, 20 S. W. 1036. 29 L. R. A. 110.
47- State ex rel Swenson v. Norton. 46 Wis. 332: People v. Thatcher, 55 N. Y. 626, 1t Am. Rep. 811; State ex rel Leonard T. Rosenthal, 131WlB. 442, lOa N. W. 49
48- People T. Thatcher, 55 N. Y. 636, 1t Am. Rep. 313; People v. Lacoste. 87 N. Y.• 193; State ex rel. Swenson v. Norton, 46 Wis. 332.
Good digging, Vince. I found the exchanges between Orly Taitz and Judge Land to be especially instructive. Although she has demonstrated remarkable incompetence throughout her obsessive campaign, I was truly astonished that she fails to grasp the notion that the petitioning party bears the burden of proof. This is gross malpractice. The result is that she didn’t put on a prima facie case for a TRO, the case will be dismissed and Capt. Rhodes can probably kiss her career goodbye. Great job, Taitzy!
That this woman continues to garner donations from around the country is evidence of the relationship between hatred and naivete. The leaders of the fringe regard their followers as morons, and are never disappointed.
This just in. Yet another citizen grand jury petition was dismissed on September 10, 2009 by Chief Judge Royce Lamberth of the U.S. District Court for D.C.
http://nativeborncitizen.wordpress.com/2009/09/15/kelso-patriots-heart-v-obama-doc-2-dismissed/
Judge Lamberth repeats his model discussion of jurisdiction, case and controversy, standing, and whether a dispute “is one that can be appropriately resolved through the judicial process.”
Say good night, putative grand jurors.
QUOTE ON Article III of the Constitution vests the Judicial power of the United States to all cases and controversies arising under the Constitution, laws and treaties of the United States. US. Cost. Art III par 2. Where there is no case or controversy the federal courts do not have jurisdiction. Hein v Freedom from Religion Foundation , 551 US 587, 588-589 (2007). And the case or controversy requirement can only be satisfied where a plaintiff has standing. Sprint Commc’ns Co v APCC Servs, 128 S. Ct 2531, 2535 (2008). The thrust of a Court’s standing inquiry is whether or not the dispute is one that can be appropriately resolved through the judicial process. Lujan v. Defenders of Wildlife, 504 US, 555-560 (1992).
The Supreme Court has refined this inquiry to three requirements, each of which is essential to confer standing on a plaintiff. Id. First, a plaintiff must show they have suffered in injury-in-fact. Id. This means that a plaintiff must have suffered an actual or imminent invasion of a legally protected interest that is concrete and particularized. Id. Second, the injury must be fairly traceable to the defendant. And finally, it must be likely that a decision in the plaintiff’s favor will redress the injury. Id.
Focusing on the first element of this test, the Court notes that Plaintiffs who only alleges “a generally available grievance about Government — claiming only harm to his and every citizen’s interest in proper application of the Constitution and laws, and seeking relief that no more directly and tangibly benefits him than it does the public at large — does not state an article III case or controversy.” Id. at 573-74.
It follows, and the Supreme Court has repeatedly held, that an individual has no judicially cognizable interest in the criminal prosecution or non-prosecution of another person. See, e.g. Linda R.S. v Richard D, 410 US 614, 619 (1973); see also Powell v. Katzenbach, 359 F.2d 234, 234-235 (DC Cir 1965). (per curiam). (”[T]he question of whether and when prosecution to instituted is within the discretion of the Attorney General.”). Furthermore, this principle has been applied to hold that a party lacks standing to compel the impaneling of a grand jury. Brown v US Attorney’s Office 53 Fed App’x 118, 118 (DC Cir 2002). Since this is precisely the relief that petitioners seek, they do not have standing. Accordingly, their petition is dismissed for lack of jurisdiction
SO ORDERED this 10th day of September 2009
Royce C. Lamberth
Chief Judge
United States District Court
UNQUOTE
Incidentally, Rhodes appears to be a piece of work. The Army paid for her medical education, and she seems willing to obey any and all orders while Obama is CinC except to deploy to Iraq.
Of course, if she simply refused the order, she could be subjected to a court martial and be discharged, becoming liable to pay back the cost of her education.
So her longshot is a TRO that would (a) hold that Obama is not a nat born cit and not CinC, (b) order the Army to keep her on duty in the States at full pay until her obligation is up, and maybe (c) order Obama removed as President and replaced by Joe B.
Chances of success:
As close to absolute zero as scientists are able to attain.
The looks on her face and Orly’s when the case is dismissed:
Priceless.
On Retired General, bdaman on September 15, 2009 at 7:20 am wrote: [quote] Vince your statement
The people who question the presidents birth should have raised their questions to their Member of Congress and their Senators last December, when the electoral votes were counted in joint session. They should have made their claims of usurpation back then. Failing that, they now have no constitutional resource other than impeachment.
My answer
This is why Cheney is/was named in suits. By law, Cheney, during the certification of those votes was to call for objections. When it got to that point Ms. Pelosi jumped spontaneously out of her chair and begins clapping wildly. I watch the proceeding on c-span. Cheney never ask whether anyone had any objections. Once again Cheney broke the law. [unquote]
Very briefly, Cheney and Pelosi were named by attorney Appuzzo in the Kerchner lawsuit, apparently for their failure to call for objections, whatever that means, during the Joint Session when the votes of the Electoral College were counted.
Constitutionally, this type of claim is marginal, and borders on the frivolous. Both officers have Speech or Debate immunity under Article I, Section 6, “and for any Speech or Debate in either House, they shall not be questioned in any other place.”
This defense is stated in the Government’s pleadings, along with a lot of other defenses. Appuzzo seemed oblivious to the Constitution when he added Cheney and Pelosi to the case. That is one of the reasons why I fully expect a dismissal in the Kerchner case.
This is a strong immunity, and means any lawsuit based on their actions or words in the Congress has to be dismissed immediately. No depositions or discovery are allowed, since that would amount to being questioned.
So my point was clear. A few birthers went to Congress. No one, not even Ron Paul or Joe Wilson or Posey or Schmitt or anyone else seemed to think their objections had any merit, since no one raised them.
If the birthers think they have anything more, their only recourse now is impeachment. Tell them to take their stuff to Ron Paul and have him introduced a resolution. No court is going to touch this issue, because it has been constitutionally committed by the framers to a different branch of the Government.
Of course, no impeachment resolution is likely to be introduced, because there is no merit to the birther objections, as the postings here and on other sites have made abundantly clear.
On Retired General, bdaman on September 15, 2009 at 11:08 am said ”Apparently the Hawaiian Chapter of AXJ has discovered the original divorce documents filed in 1964, and among them has discovered that Stanley Ann Dunham (with the help of others) did in fact present a Certificate of Live Birth of a child born in Mobassa, Kenya….”
This is just another paste-up from the webfringe:
http://noiri.blogspot.com/2009/09/original-obama-bc-discovered-in-1964.html
There is no certificate of live birth in the divorce papers posted on the web.
http://www.scribd.com/doc/18130289/Obama-1964-Divorce-Papers-13-Pages-Missing-Pg-11
The posters seem to think that a page is missing, and that the missing page is the certificate.
Show us the “Certificate of Live Birth of a child born in Mobassa (sic) Kenya.”
Until they come up with something else, this can be disregarded.
Once again, no gun, no smoke, no nothing.
The mailbox at Retired General is full, and very slow to respond, so I am posting all birther info at this thread from now on.
The Rhodes hearing went forth on Monday. Judge Land seems to have probed Rhodes carefully to secure key admissions. Taitz seemed to go off the rails, worried about beheadings.
Taitz was innocent of the rules of burden of proof. In general, the initial burden of proof is always on the proponent. The party making an assertion has the initial burden of showing evidence for its position. Orly was instructed on this point by the Judge. That sort of thing is always a bad sign for a lawyer, especially when she herself had asked why she had the burden of proof for showing that a Kenyan birth certificate, that she herself had introduced, was authentic. She had the burden because she made the assertion.
Rhodes is very likely to lose, since the judge placed the burden of proof on her because she is the one seeking the TRO, and she has no proof that Obama is ineligible. Wait till Wednesday.
There are also signs that the judge sees this as a political case and a hypothetical dispute. These are also reasons for judicial deference.
Observers on the web think the Judge’s questions laid the groundwork for denial of the TRO and dismissal of the case. We can only wait and see.
[quote] Posted on Tue, Sep. 15, 2009
Judge will rule on ‘birther’ lawsuit by Wednesday
BY CHUCK WILLIAMS
During a hearing in U.S. District Court Monday, an attorney for an Army officer fighting deployment to Iraq questioned Barack Obama’s legal right to serve as president, asserting he was born in Kenya, not Hawaii.
Judge Clay Land, inquisitive throughout the 90-minute hearing, said he will issue a decision by noon Wednesday on Capt. Connie Rhodes’ request for a temporary restraining order to block her deployment.
Rhodes was represented by Orly Taitz, a California lawyer and a national figure in the “birther” movement that claims Obama was not born in the United States and does not meet the qualifications to be president.
Maj. Rebecca Ausprung, with the Department of the Army, Litigation Division in Washington, told Land this case was about Rhodes, not Obama.
“There was a lack of any reference to Capt. Rhodes,” Ausprung said after Taitz spent about 30 minutes addressing the court. “This case is about Capt. Rhodes and her deployment.”
But Taitz kept going back to Obama’s birth certificate. Twice she called Obama a “usurper.”
Land repeatedly pointed out it was a courtroom where the rule of law was all that mattered.
“Whenever I give you a minute, you go off on these talking points,” Land said.
“We have not seen Mr. Obama’s birth certificate,” Taitz responded.
“This is not a forum to lay ground work for a press conference,” Land said. “This is a court of law.”
In her final argument, Taitz asked Land why she had to prove a “Kenyan birth certificate” she submitted as evidence was authentic, yet her opponents didn’t have to prove Obama had an authentic United States birth certificate.
“Who has the burden of establishing that the president of the United States is not eligible to serve in his office?” Land asked Taitz.
The judge then pointed out that burden fell on Rhodes because she sought the restraining order to stop her deployment.
Rhodes received her officer’s commission in March 2005, according to Monday’s testimony.
It took two years for her to complete medical school at the University of Illinois. She went on active duty June 18, 2007, while doing her internships and residency at Army hospitals.
In return for the Army paying for her third and fourth years of medical school, Rhodes committed to serve two years’ active duty. That commitment started in July 2008.
She has previously served at Fort Gordon near Augusta, Fort Rucker in south Alabama and Fort Riley in Kansas.
She is currently at Fort Benning, awaiting deployment in the next week. She arrived here over the weekend.
Land asked the Army’s attorneys to make sure he was notified if her deployment came before his ruling.
Under questioning from Land, Rhodes said she had not declined any other orders since Obama became president.
“If Sen. McCain would have won, would you be objecting to deployment to Iraq?” the judge asked.
Rhodes said no.
Land then asked the question another way: If President George W. Bush still was the commander in chief, would she be fighting the deployment?
“No, sir,” Rhodes answered.
At one point in testimony, Rhodes expressed concerns she would not be covered by the rules of the Geneva Convention if she were captured.
“If you don’t have such protections, you can be beheaded,” Tatiz said at one point during her questioning of Rhodes.
That prompted Land to later say, “The possibility of being beheaded exists whether Obama, Bush, Reagan or George Washington was president. The question is not, is it a dangerous place? It is how does it relate to her claim that denies her constitutional rights under the current commander in chief.”
Rhodes, who was not in uniform but was accompanied by a military escort from Fort Benning, declined to answer questions after the hearing.
Rhodes’ complaint is similar to the July 8 suit filed by Maj. Stefan Frederick Cook, who sought conscientious objector status and a temporary injunction. Taitz represents both.
Land tossed out Cook’s case in July.
The judge said the judicial branch shouldn’t inject itself into “political disputes” and shouldn’t get involved in hypothetical debates that haven’t yet become actual legal disputes. [unquote]
http://www.ledger-enquirer.com/news/v-print/story/839909.html