A Confession Before The Court

Late last week I submitted to readers two items regarding a lawsuit -- and a potential series of lawsuits -- in which the plaintiff sought essentially a delay in the upcoming election because Sen. Barack Obama had not proved he was eligible for the office of President. The plaintiff submitted to the federal court in Philadelphia, PA, that Sen. Obama was NOT born in the United States (in accordance with Article II [clause 5] of the Constitution), and that the plaintiff would be, among other things, disenfranchised as a voter.

In two posts here (this and this), I wondered whether this "could be" the "October surprise" of the 2008 election cycle. Emphasis, of course, on "could be." I did not offer this with any sense of glee or delight or hope, I merely offered it. I simply felt the story "important."

But it seems that I may have been a victim of my own cynicism.

I spent a good part of today, and some of this past weekend, reading Philip J. Berg v. Barack Obama, et al., particularly all of Judge R. Barclay Surrick's "Memorandum & Order" which he issued on Friday night (when the suit was dismissed). It is thrilling reading.

I have two things I'd like to quickly spell out. First, the suit was dismissed essentially because the plaintiff, Mr. Berg (a Democrat and Hillary Clinton supporter), did not show standing or harm: he did not convey to the court that he himself could legitimately file suit, nor did he direct the court (according to law) how he had been hurt or how the court could right the alleged wrong. Second, the suit WAS NOT rejected because its evidence or facts were deemed false. In fact, because of the nature of the suit, the court had to accept the allegations as given as true, and then simply follow the legal and logical consequences presented in the complaint as all facts and motions relate to current law.

There were some very interesting comments penned by Judge Surrick, and I shall return to them in a moment. Suffice it to say it is all rather interesting. To me.

What disturbs me considerably is something I've spotted in myself, namely a cynicism so deep I have come to distrust nearly everyone running for political office. And there is no doubt I am of the psychological constitution where I find myself distrusting left-leaning peers more often than those who lean right. Since Barack Obama is undeniably left-leaning, I was too quick to suspect him of profound wrongdoing, of defrauding the American public by essentially gaining the presidency without meeting all constitutional prerequisites and by taking advantage of what is ostensibly the vague and seemingly unenforcable rules of Article II. Again, I am not saying I believed the lawsuit had legitimacy or that Mr. Obama was not born on American soil. I am saying that I am duly cynical enough to believe those things possible and plausible.

Moreover, I divined that my cynicism did not go deeply enough. I did not bring to the Pennsylvania lawsuit the next level of inquiry. I did not ask whether Mr. Berg himself was trustworthy; enamored of his former status as deputy attorney general of the state of Pennsylvania, I did not ponder that he might be something of a rogue litigant. After all, I learned in my simple research that Mr. Berg had earlier submitted a motion to the same court for protections in a bankruptcy procedure, and that the case was dismissed for the exact same reasons as Berg v. Obama. Add to that the item I picked up that reported Mr. Berg, shortly after 9/11, created a website asserting that the Bush administration either was involved in or knew beforehand the atrocities of that infamous day, and I am left holding something inherently suspect (it is no secret I have zero tolerance for 9/11 "truther" schemes).

And, of course, the zenith of my cynicism, if you will, manifested itself in my wondering aloud whether we would see a spate of similar lawsuits over the next few days and weeks.

______________________

Judge Surrick wrote some curious things in his memo and order, and I would like to note a couple of them here. But perhaps I should try to explain his ruling one more time in language that I know, the language of the layman.

The judge dismissed the case partly because the plaintiff was essentially complaining that someone else MIGHT NOT be following the law. Put this way, the complaint strikes even the lay person as prima facie foolish: I can't sue my neighbor, for example, because he might not be following federal tax codes. Hence, not only can I not bring such a suit, a judge has no grounds on which to adjudicate. Mere suspicion of wrongdoing is not sufficient justification for a court to hear my complaint.

The case was also dismissed because the plaintiff was not able to show harm done by the defendant (Barack Obama): if I vote for a man I believe does not meet the legal requirements, the man for whom I vote has not harmed me, I've harmed myself. After all, I could choose not to vote for the man; I could choose to vote for someone else, or not at all. Hence, there is really nothing for the court to redress for the plaintiff.

But what is startling even to the average "Joe the Voter" is that legal precedent has created a mind-boggling problem: the American voter has no (or very little) standing to bring to the courts any challenge about a candidate's legitimacy as a candidate. Here's one of Judge Surrick's statements in light of a New Hampshire legal ruling:

"...voters do not have standing to bring a claim under the Natural Born Citizen Clause to exclude a candidate from the presidential primaries." (Page 12, ¶ 1)

Of course, Berg v. Obama is aimed not at the primaries but at the General Election; Judge Surrick believes that hardly matters. However, even Judge Surrick seems puzzled by this legal fact that voters have no standing; he offers that Congress, ultimately, may be the sole body that has standing in this case (contingent on Congress' interest, and whether it has passed or will pass laws that can guide them). In short, Judge Surrick's order leads me to believe that there must be a dearth of legal precedents and procedures (if any) to properly adjudicate when a candidate has been elected to the Presidency without meeting the Natural Born Citizen requirement. (Has a loophole been found? If so, can we say chaos? crisis? After all, if a US citizen does not have a legal standing here, who, or what, does? Very interesting. And is it at all reassuring that Congress may have sole standing here?)

But what struck me as particularly curious was this comment made in the judge's notes, (page 11, note #9):

"...Plaintiff would have us derail the democratic process by invalidating a candidate for whom millions of people voted and who underwent excessive vetting during what was one of the most hotly contested presidential primary in living memory."

That this strikes me as undeniably political and not one whit jurisprudential goes without saying. Moreover, it strikes me as rather naïve, as the judge asserts without any legal reference or attribution of expertise that Barack Obama "underwent an excessive vetting." His comments are also irrelevant, as is the vetting itself, even if it bears epistemic weight: the issue is NOT whether Mr. Obama has been vetted, and such is not before the court. The question is really about authority: who, if not the voter, can hold to account a candidate who has not proven citizenship? It seems Mr. Berg is at least asking that question. What amazes me is that the only definitive answer given by the court is that neither the voters nor the court have legal standing in this matter. And even if Mr. Berg is counting on the court to accept him as having legal standing, the question is not about "vetting" but about "proof" or the failure (allegedly) to present it.

Amazingly, though this is largely a procedural statement, this statement is made not only by the judge, it is stipulated in Barack Obama's motion to dismiss:

"We have taken Plaintiff’s factual allegations as true and drawn all inferences in his favor."

So what we are left with is only a very limited legal clarification. The case is not dismissed on grounds that the charges are false (though they probably are). The case is dismissed because the complaint was filed by the wrong person, in the wrong places, and lacked sufficient evidence of damage to the plaintiff.

Interesting, interesting.

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