Obama Fomenting A Constitutional Crisis: Constitutional Lawyer Discusses ...

The Bulletin, Philadelphia's Family Newspaper ^ | December 1, 2008 | John P. Connolly

[hamboy]

Obama Fomenting A Constitutional Crisis: Constitutional Lawyer Discusses Ramifications Of Controversy

Controversy continues to surround President-elect Barack Obama's eligibility to serve as president, and a case involving his birth certificate waits for its day before the U.S. Supreme Court. A constitutional lawyer said were it to be discovered that Mr. Obama is not a natural-born U.S. citizen, it would have grave consequences for the nation.

According to the Constitution, a president must be a natural born citizen of the U.S. Mr. Obama's critics have failed to force him legally to produce his original birth certificate, and Mr. Obama has resisted any attempt to make him do so. Currently, only Hawaii Department of Health officials have access to Mr. Obama's original records.

Some of Mr. Obama's critics have said he was born in Kenya and have claimed he is a citizen of Kenya, Indonesia, or even a British subject. 

Edwin Vieira, a constitutional lawyer who has practiced for 30 years and holds four degrees from Harvard, said if it were to be discovered Mr. Obama were not eligible for the presidency, it would cause many problems. They would be compounded if his ineligibility were discovered after he had been in office for a period of time.

"Let's assume he wasn't born in the U.S.," Mr. Vieira told The Bulletin. "What's the consequence? He will not be eligible. That means he cannot be elected validly. The people and the Electoral College cannot overcome this and the House of Representatives can't make him president. So what's the next step? He takes the oath of office, and assuming he's aware he's not a citizen, then it's a perjured oath."

Any appointments made by an ineligible president would have to be recalled, and their decisions would be invalidated.

"He may have nominated people to different positions; he may have nominated people to the judicial branch, who may have been confirmed, they may have gone out on xecutive duty and done various things," said Mr. Vieira. "The people that he's put into the judicial branch may have decided cases, and all of that needs to be unzipped."

Mr. Vieira said Obama supporters should be the ones concerned about the case, because Mr. Obama's platform would be discredited it he were forced to step down from the presidency later due to his ineligibility, were it to be discovered.

"Let's say we go a year into this process, and it all turns out to be a flim-flam," said Mr. Vieira. "What's the nation's reaction to that? What's going to be the reaction in the next U.S. election? God knows. It has almost revolutionary consequences, if you think about it."

Mr. Vieira said Mr. Obama's continued silence and avoidance in the release of his birth certificate is an ethical issue because of the dire consequences that could be caused by a possible constitutional crisis.

"If he were my client and this question came up in civil litigation, if there was some reason that his birth status was relevant and the other side wanted him to produce the thing and he said 'no,' I would tell him, 'you have about 15 minutes to produce it or sign the papers necessary to produce the document, or I'm resigning as your attorney," said Mr. Vieira. "I don't think any ethical attorney would go ahead on the basis that his client could produce an objective document in civil litigation [and refused to do so]."

Further, Mr. Vieira cited a fraud ruling in a 1977 case called U.S. v. Prudden, which he feels applies in this case.

"Silence can only be equated with fraud when there is a legal and moral duty to speak or when an inquiry left unanswered would be intentionally misleading," the ruling reads. "We cannot condone this shocking conduct ... If that is the case we hope our message is clear. This sort of deception will not be tolerated and if this is routine it should be corrected immediately."

Mr. Vieira said such an ethical question of representing a client who refused to produce such a basic document is important, even in a small civil case. The current question is concerning the man who potentially could have his finger next to the nuclear button.

"[The birth certificate], in theory, should be there," said Mr. Vieira. "What if it isn't? Who knows, aside from Mr. Obama? Does Russian intelligence know it isn't there? Does Chinese intelligence know it isn't there? Does the CIA know that it isn't there? Who is in a position to blackmail this fellow?" 

Mr. Vieira explained all laws have to be submitted to the president. In the event that there is no valid president, then no laws passed by Congress in that administration would be legally null and void. Because of that, this case will probably not go away, even after Mr. Obama takes the oath of office.

"If you don't produce it, you think it's going to go away," he said. "There are all these cases challenging Mr. Obama, and some challenging secretaries of state, and they run into this doctrine called standing."

Mr. Vieira explained although legal standing is difficult to get around in Federal courts, the document could be produced in any criminal cases stemming from legislation passed in the Obama administration.

"Let's assume that an Obama administration passes some of these controversial pieces of legislation he has been promising to go for, like the FOCA (Freedom of Choice) Act," said Mr. Vieira. "I would assume that some of those surely will have some severe civil or criminal penalties attached to them for violation. You are now the criminal defendant under this statute, which was passed by an Obama Congress and signed by President Obama. Your defense is that is not a statute because Mr. Obama is not the president. You now have a right and I have never heard this challenged, to subpoena in a criminal case, anyone who has relevant evidence relating to your defenses. And you can subpoena them duces tecum, meaning 'you shall bring with you the documents.' "

Such a criminal defense would enable the defendant to subpoena any person to testify in court and any person to bring evidence in their possession to the court. 

Further, records could be subpoenaed directly, in the case of a birth certificate. Once the record could be subpoenaed, the birth certificate could be examined by forensic experts, who would then be able to testify to the document's veracity as expert witnesses. Any movement by the judges to make a special exception to the president in a criminal case would hurt the legitimacy of that presidential administration.

"I can't believe I'm the only lawyer who would think of this," said Mr. Vieira. "I think any criminal lawyer defending against one of these politically charged statutes is going to come up with this. That means it will never go away until that document is laid down on the table and people say, 'yes, there it is.' And therefore they're caught. If people keep challenging this and the judges out of fear keep saying 'no, go to jail, go to jail, go to jail' then that's the end of the Obama administration's legitimacy. On the other hand if they open the file and it's not there, then that's really the end of the administration's legitimacy."

Several court cases in the birth certificate controversy are waiting admission to the Supreme Court. 

A gathering of judges will meet on Dec. 5 to decide whether or not to hear a case from New Jersey, and a decision is still pending on a case from a lawyer in Pennsylvania. Should four of the judges vote to hear the case in the Dec. 5 meeting, then it will be scheduled for hearings. Court cases from Connecticut and New York have also applied for hearings at the U.S. Supreme Court.

 

[hamboy]

Obama et al.'s response to Writ of Certiorari due in Supreme Court today, December 1, 2008.

[silverleaf]

Interesting that any defendant in a federal case brought under new Obama-signed legislation could demand the birth certificate as a defense move! Brilliant.

[Lurking Libertarian]

Interesting that any defendant in a federal case brought under new Obama-signed legislation could demand the birth certificate as a defense move! Brilliant.

No way. Google "enrolled bill doctrine."

[silverleaf]

Let's assume that an Obama administration passes some of these controversial pieces of legislation he has been promising to go for, like the FOCA (Freedom of Choice) Act," said Mr. Vieira. "I would assume that some of those surely will have some severe civil or criminal penalties attached to them for violation. You are now the criminal defendant under this statute, which was passed by an Obama Congress and signed by President Obama.

Your defense is that is not a statute because Mr. Obama is not the president. You now have a right and I have never heard this challenged, to subpoena in a criminal case, anyone who has relevant evidence relating to your defenses. And you can subpoena them duces tecum, meaning 'you shall bring with you the documents.' "

Such a criminal defense would enable the defendant to subpoena any person to testify in court and any person to bring evidence in their possession to the court."

So the lawyer who stated this doesn't know what he's talking about?

[silverleaf]

That is, "[i]f a legislative document is authenticated in regular form by the appropriate officials the court treats that document as properly adopted."

So a constitutionally ineligible President would be an "appropriate official" ?

[knarf]

"Obama et al.'s response to Writ of Certiorari due in Supreme Court today, December 1, 2008."

I've been waiting, but so far ... silence.

Anyone know anything?

[Lurking Libertarian]

So the lawyer who stated this doesn't know what he's talking about?

I wouldn't say that he doesn't know what he is talking about, but Vieira is a bit of a gadfly in legal circles-- he routinely publishes pieces arguing that the Federal Reserve is unconstitutional, and other non-mainstream legal theories.

In this case, he's wrong because there is a common-law rule called the "enrolled bill doctrine," which has been followed by the U.S. Supreme Court, that says that if a bill appears in the official journals of the House and Senate, it is conclusively presumed to be a valid law, and the courts will not consider any arguments that it was not properly enacted.

[BuckeyeTexan]

"Silence can only be equated with fraud when there is a legal and moral duty to speak or when an inquiry left unanswered would be intentionally misleading, "

No kidding.

[Old Sarge]

It will probably be faxed in at 11:59PM...

[cvq3842]

Bookmarked! Thanks.

[Right Cal Gal]

What I find most telling about Obigula is the fact that the question of his place of birth and the sealing of his supposed birth certificate by Hawaii are creating uncertainty, and a feeling among many Americans that the man is not a legitimate candidate.

Well, President-elect Obligula, a man who loves his country, who cares about his fellow citizens, would have produced that Birth Certificate, if nothing else but to prove he has nothing to hide and to qualm national fears.

You have not done this. Which shows me just how much you could care less about the country OR its citizens. I hope the Supreme Court hands you your @$$ on a platter.

[Lurking Libertarian]

I've been waiting, but so far ... silence.

A response to a petition for certiorari is not mandatory. In many cases, the respondent doesn't file one, because the chance of the Supreme Court granting the Petition is so small.

[neverbluffer]

Actually, the FEd Reserve is unconstitutional

[Lurking Libertarian]

Actually, the FEd Reserve is unconstitutional

There are good arguments that it is, and Viera makes them well, but the courts have rejected those arguments consistently for over 90 years. I think they will also reject his arguments about Obama's citizenship.

[sodpoodle]

OMG!!!!

The Rule of Law replaced with Anarchy and Martial Law!!!!!!

Bill Ayers must be developing a tic waiting for this denouement.

Stranger than Orwell.

[TEXOKIE]

bttt

[Glacier Honey]

ping

[fso301]

I don't see the birth certificate being a problem for Hussein.

The issue I see is Hussein's citizenship status upon returning from Indonesia. I'm not sure how to get at that.

[TheConservativeParty]

This Obama guy is a fraud. Hello Captain Obvious! Why would he spend nearly a million dollars to halt the legal cases that seek to have him produce his US COLB, to become Constitutionally eligible to be POTUS? He has no US COLB and he is playing the waiting game, after Jan.20th he knows this problem will just fade away.

[Chode]

Further, Mr. Vieira cited a fraud ruling in a 1977 case called U.S. v. Prudden, which he feels applies in this case. "Silence can only be equated with fraud when there is a legal and moral duty to speak or when an inquiry left unanswered would be intentionally misleading," the ruling reads. "We cannot condone this shocking conduct ... If that is the case we hope our message is clear. This sort of deception will not be tolerated and if this is routine it should be corrected immediately."

"[The birth certificate], in theory, should be there," said Mr. Vieira. "What if it isn't? Who knows, aside from Mr. Obama? Does Russian intelligence know it isn't there? Does Chinese intelligence know it isn't there? Does the CIA know that it isn't there? Who is in a position to blackmail this fellow?"

and there it is...