Frankly, this isn't the post I wanted to write. There's a whole bunch of criminal law stuff and capital stuff. Maybe too much.
But then they held a birther hearing in Georgia.
You'll recall that earlier this month, administrative law judge (as opposed to a regular trial judge) Michael M. Malihi refused to dismiss a challenge to putting President Obama's name on the ballot for the Georgia Democratic primary.
The birthers' immediate claim was that Obama wasn't that Obama wasn't born here. They passed on that for this round (or at least the early parts of it). Rather, they said that since his father wasn't a citizen, Obama couldn't be a "natural born citizen." The claim isn't frivolous on its face, but the further claim, that clear and binding Supreme Court precedent (Minor v. Happersett) says that is, simply false. Minor says no such thing. And what it does say that's marginally relevant isn't binding precedent. Obama's lawyers responded with a motion to dismiss that both ignored the substance of the birthers' argument and provided no even vaguely credible reason to dismiss the case.
So there was a hearing last week.
Obama was subpoenaed. The birthers were giddy.
Now he'll have to come and be questioned under oath and he'll have to admit that he's a fraud and a Kenyan muslim terrorist or something.Really, they thought that. Especially when the judge refused to quash the subpoena.
Except Obama didn't show. Neither did his lawyers.
Mark Niesse, for the Fulton County Daily Report.
On Thursday, nearly 100 people, many of them "birthers" who doubt Obama's legitimacy, crowded the courtroom for the 90-minute trial-like hearing. Seats reserved for Obama's defense team remained empty.
Birther leader Orly Taitz, a California attorney representing a Georgia voter challenging Obama's qualifications for the office he holds, questioned witnesses about document forgery and told Malihi she didn't believe Obama's birth certificate or Social Security number were legitimate."This man is just making a joke out of this country. He's showing tremendous disrespect to the whole nation," Taitz said after the hearing. "Mr. Obama had an opportunity to appear here and show valid documents, certified docs, with embossed seals. … He chose to present nothing, which shows that he has nothing. He does not have any valid documents."
Of course, the argument wasn't supposed to be about the documents. And the President's failure to appear doesn't mean that he couldn't have presented compelling evidence had he been so inclined. Then again, logical argument has never been key to the birther movement which rests largely on the conviction that whatever isn't proved to their satisfaction is ineluctably false. And by god, they believe Obama wasn't born here and any evidence to the contrary is, necessarily, fabricated.
The open question, of course, is whether it was wise for Obama's lawyers to boycott the hearing.
Sure, it would be a circus if they showed up. (Not Obama, there was no way he'd attend, but his lawyers.) And boycotting is kind of like refusing to negotiate with terrorists. To
negotiate appear is to seem weak, and to dignify the proceedings.
But not showing up creates its own sort of circus. And perhaps concedes the chance actually to rebut the claims with relevant argument and evidence that could lead to a judicial determination that Obama is actually qualified to be President - something that all those courts saying the question hasn't been (and maybe can't be) properly raised haven't provided.
On the other hand, they could show up and still lose. Which would really be a mess.
When I tell people that the answer to every legal question is "It depends," that's true of every tactical decision, too.
No decision yet from Judge Malihi whose opinion is only advisory, anyway. The actual ruling on ballot access will be made by the Georgia Secretary of State, Brian Kemp.
Kemp, by the way, could have shut the hearing down. Obama's people asked him to. In a letter to Michael Jablonski, Obama's lawyer, Kemp declined. Then he issued a warning.
[I]f you and your client choose to suspend your participation in the OSAH proceedings, please understand that you do so at your own peril.
You pays your money and you takes your chances.