Posted on 09/17/2009 10:25:29 PM PDT by rxsid
Barnett v. Obama: Important Discovery Is Available Now According To Judge Carter’s Order of Sept. 17, 2009.
Today, Judge Carter issued a limited discovery order pertaining to the case of 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:
...
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.
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 no official 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 whether they would object on the basis of Obama’s eligibility.
NOT ON THE BASIS OF HIS BIRTH CERTIFICATE.
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 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.
2. Interrogatories should be issued which question Cheney as to why he didn’t call for objections as was required by the statute.
Depending on the answers to those interrogatories, 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.
Ping!
Interesting line of reasoning. Sounds right but I’m not sure what it buys us. At a minimum, at least one Senator and one representative would be required to say that they would have objected for this to carry any water.
Now HOW would the public have reacted if Cheney had polled the floor for objections????
SORE LOSER MAYBE?????
This is the loophole the libs were counting on...
That the honor and graciousness of the losers would trump following the law... and their bet paid off.
I wonder how many people will have to die before the rule of law again takes precedence again in the minds of the American people?
Bump,,,Bump...;0)
Thank you.I was going to bed and decided to hit the certificate button one more time. Now you made my day.
Cheney is a very smart guy. Why did he forget? Did he want to have a back insurance policy? I mean everybody in the House and Senate knows the truth.
Why did Roberts screw up the oath?
One rep? People tried to get Paul and another guy was supposedly going to speak up. I think we will find a rep.
One senator? ??
“Regarding that order, one of my astute readers (Joe The Blogger) asked the following question which led me to write this post: “
Good post rxsid. Very interesting. Bravo JoeTheBlogger. Keep ‘em honest.
| We here at FR have been pointing this out since it happened on Jan 8th. See a recent discussion on this very topic here: Panic in D.C. ? Justice urges birth suit tossed (9/7/09) Even though "[e]very objection shall be made in writing", Cheney would still be required, under US Code, to call for any objections at the end of the Electoral Count which may have bubbled up since the beginning of that special session. We all noted Cheney's sh!t-eating grin during the Electoral Count ... he may still have the last laugh in this:
|
Indeed...
"We all noted Cheney's sh!t-eating grin during the Electoral Count ... he may still have the last laugh in this:"
Ditto!
Thanks for the ping.
I read the latest postings and comments on Leo Donofrio’s blog. What do you think Judge Carter will do with this?
At the time Cheney was calling for the state of the vote, I wonder why he did not call for objections (though none were raised). Was this deliberate on his part? It seems sort of far-fetched to conclude that he was looking forward to putting this particular snag in the fabric that could be the start of unraveling things.
I know that at the time of the state of the vote (with Congress standing and applauding heartily, from what the video shows) it was possible that some senators and representatives feared political and personal harm if they raised an objection. No matter. Cheney did not give that particular and essential part of the certification any attention, and I wonder why.
This will really torque the minds of the LIBS and RINOS when they’re confronted with violations of the US Code by Cheney and themselves.
I gotta go stock up on some more Orville Redenbacher
I know it’s ALWAYS been in the back of my mind .. even
appealed to a couple of influential people about it, but no response.
Anyone know if there is any solid legal and Constitutional impact here ?
Judge Carter,
Your Honor, if you are reading this...
| "We all noted Cheney's sh!t-eating grin during the Electoral Count ... he may still have the last laugh in this:" Ditto! I can just imagine how the conversation went on Jan. 7th:
|
bling
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,
-snip-
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:
I believe the Judge got this from Kreep's "OPPOSITION TO APPLICATION FOR LIMITED STAY OF DISCOVERY". I read it last night. And yes, Cheney did not verbally ask Congress for objections ...as do many FReepers know, who were on the live thread for that day.
I think Cheney is too smart to have made a mistake. I thinj something is up. I also think most of the people in that chamber on that day knew Obama was not eligble.
I hope Orly does EXACTLY what Leo suggests and gets a good laywer, hopefully helping her, to write it up and submit it.
Leo continues to find gems.
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