S?bado, 19 de septiembre de 2009

Today, Judge Carter issued a limited discovery order Barnett v. Obama.  Judge Carter’s order stated:

All discovery herein shall be stayed pending resolution of Defendants’ Motion to Dismiss, except for any discovery as to which Plaintiffs can demonstrate, to the satisfaction of Magistrate Judge Nakazato, is necessary for the purpose of opposing the Motion to Dismiss.

Regarding that order, one of my astute readers (Joe The Blogger) asked the following question which led me to write this post:


What do you think about taking advantage of Judge Carter’s Order for limited discovery…Surely there is SOME scope here for forcing SOME information out of the DOJ?

While reading Judge Carter’s limited discovery order, the following passage caught my eye:

In this case, Defendants have alleged that the Court lacks subject matter jurisdiction for various reasons, including that the case presents a non-justiciable political question that is properly addressed by the legislative branch of government, not the judicial branch. Defendants’ Motion to Dismiss at 11.

As you know, Judge Carter agreed to stay discovery until the motion to dismiss was resolved regarding whether the district court has subject matter jurisdiction.

With Judge Carter’s reasoning guiding my analysis, I carefully examined the DOJ motion to dismiss paying special attention to the arguments made starting on page 11.  When I got to page 13, I found something interesting:

Under 3 U.S.C. § 15, Congress is directed to be in session on the appropriate date to count the electoral votes for President, with the President of the Senate presiding.  The statute further directs that the electoral votes be counted, and then the results be presented to the President of the Senate, who shall then “announce the state of the vote.”  The statute then provides a mechanism for objections to be registered and resolved in the following language:

“[e]very objection shall be made in writing,and shall state clearly and concisely, and without argument, the ground thereof, and shall be signed by at least one Senator and one Member of the House of Representatives before the same shall be received.  When all objections so made . . . shall have been received and read, the Senate shall thereupon withdraw, and such objections shall be submitted to the Senate for its decision; and the Speaker of the House of Representatives shall, in like manner, submit such objections to the House of Representatives for its decision.”

That’s an interesting quote… interesting for what the DOJ left out.

They conveniently cut the statute off when they bring it into the brief.  The uncensored passage from 3 U.S.C. § 15 states:

Upon such reading of any such certificate or paper, the President of the Senate shall call for objections, if any.  Every objection shall be made in writing, and shall state clearly and concisely, and without argument, the ground thereof…

The DOJ clipped the statute so as to leave out the part which places a burden on the Vice President, acting in his role as President of the Senate, to call for objections after the count of votes.

Vice President Cheney failed to call for objections as the statute requires.

(See the You Tube video of the 2009 electoral vote count at about the 27:00 minute mark.)

The DOJ motion to dismiss relies upon separation of powers and the political question doctrine alleging the district court has no authority to entertain the case.  In doing so, the DOJ cites specifically 3 U.S.C. § 15 as proof that challenges to the President’s eligibility are provided for by Congress.

This is true, but those provisions were not properly followed on January 8, 2009 when the votes for Obama were counted.  And the district court therefore does have jurisdiction to review a failure of the Government to follow the laws enacted to protect the integrity of the electoral process.

There are, as usual, many opinions as to why the specific letter of the law was not carried out and a call for objections made.  But I see noofficial explanation available to the public.

Therefore, since the issue was specifically raised by the DOJ motion to dismiss in a quotation which fails to provide the court with the full context of the law cited, I see no reason why the court should deny the plaintiffs discovery on this particular issue.

Since the DOJ raised the statute and relied upon it for the motion to dismiss, and since Judge Carter has allowed immediate discovery necessary for purposes of opposing the motion to dismiss, Orly should demand discovery of the following:

1. Since no call for objections was made, each member of Congress and the Senate should be served with interrogatories requesting deposed as to whether they would object on the basis of Obama’s eligibility.


Got that? Make it broad, not specific.

- Some may have objections to his admission of British birth.

- Some may have objections regarding his place of birth.

Don’t limit the interrogatories deposition to any specific objection.  Just ask each Representative or Senator whether they would object to Obama’s eligibility.

The Constitution does not require a birth certificate be offered.  The Constitution does require that the President be a natural born citizen.  The interrogatories should be simple.  For example:

Dear Congressman Ron Paul – Had Vice President Cheney called for objections after the counting of electoral votes as is required by 3 U.S.C. § 15, would you have objected?

That’s sufficient as written.  Send that to each Senator and Representative.

Usually depositions are limited to a certain amount, but the court may order depositions as well if the court is convinced they are necessary.  In this case, the deposititons would be very short, just a few minutes each.

2. Interrogatories should be issued which question Cheney should be deposed as to why he didn’t call for objections as was required by the statute.

Depending on the answers in those interrogatories depostions, the court might order the Senate and Representatives to meet for the purpose of hearing a call for objections.

After all, if the Government is going to cite 3 U.S.C. § 15 as evidence that the process of approving the President’s eligibility belongs to Congress, then the plaintiffs ought to be entitled to the protection of the statute by an enforcement of the duties specifically prescribed therein.

District courts do have the power to issue a writ of mandamus to compel a ministerial duty owed.  Calling for objections was a ministerial duty owed – that was not performed.

In my opinion, this is the best chance of getting any meaningful discovery approved.



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Publicado por Corazon7 @ 10:40
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