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Update on Berg vs. Obama, the Kenyan
America's Right ^ | 9/24/08 | Jeff Schreiber

Posted on 09/24/2008 9:51:59 PM PDT by solfour

Answer to Berg's Complaint Due Today from Obama, DNC

Obama and the DNC have until midnight tonight to serve an answer to Philip Berg's complaint, so keep checking here for updates throughout the day. The first one was really a conglomeration of ideas tossed around my head throughout the morning, hence the "9:00am to 1:00pm" label. Still, as things develop--or perhaps do not--there should be more to see.

-- Jeff

5:30pm

I just got off the phone with Phil Berg, and put in a few questions to the attorney who filed the motion. I'd really like to give the latter a chance to respond, so for a more salient synopsis sometime this evening. Until then, you've got the details below.

The PDF of the motion can be found by clicking HERE (thank you to one of our readers, a self-proclaimed "advocate for constitutional rights").

3:30pm

MOTION TO DISMISS FILED.

A few stream-of-consciousness notes until I've had time to put everything together...

The grounds cited:

(1) Court lacks subject matter jurisdiction. (2) Berg failed to present a claim upon which relief can be granted.

"Plaintiff's allegations regarding Sen. Obama are patently false, but even taking them as true for purposes of this Motion, plaintiff's suit must be dismissed immediately. This Court lacks subject matter jurisdiction because the plaintiff has no standing (emphasis added by me) to challenge the qualifications of a candidate for President of the United States. Plaintiff fails to state a claim in any event because there is no federal cause of action asserted in the Complaint."

NOTE: Don't get all hung up on the "taking [the allegations] as true for purposes of this Motion" stuff. That's completely normal, and nothing to read into.

My gut tells me that Judge Surrick has an order just waiting for this motion to be filed...

I was on the telephone with Berg when the motion appeared on the docket. He declined to comment until he had a chance to look at it himself.

"In order to establish the “‘irreducible constitutional minimum of standing’ under Article III of the Constitution” plaintiff must show, first, an “‘injury in fact—an invasion of a legally protected interest which is (a) concrete and particularized, . . . and (b) actual or imminent, not conjectural or hypothetical.’

In this case, Mr. Berg fails to allege an y concrete, specific injur y in fact to [apparent typographical error] In this case, Mr. Berg fails to allege any concrete, specific injury in fact to be ineligible, “plaintiff as well as other Democratic Americans will suffer Irreparable Harm including but not limited to: (1) Functional or Actual, Disenfranchisement of large numbers of Citizens, being members of the Democratic Party, who would have been deprived of the ability y to choose a Nominee of their liking . . . .” It is well-established, however, that a voter’s loss of the ability to vote for a candidate “of their liking” does not confer standing because the actual injury is not to the voter but to the candidate. “[A] voter fails to present an injury-in-fact when the alleged harm is abstract and widely shared or is only derivative of a harm experienced by a candidate.” (emphasis added by me)

This is exactly what I figured it would be. They cited the Jones v. Bush case, where voters sued to challenge the Bush-Cheney ticket because both were inhabitants of the same state (Texas), and that court's finding of a lack of a "distinct and palpable injury."

And, as I thought, they cited the recent Hollander v. McCain decision from New Hampshire.

On the subject matter jurisdiction angle, the defense attorneys cited authority suggesting that the Declaratory Judgment Act cited by Berg "has only a procedural effect" and "does not create subject matter jurisdiction."

Now, we just need to see if my gut--ample as it may be--is correct on the pending order from the Hon. R. Barclay Surrick...

Keep checking here for details, and expect a more finessed approach, hopefully complete with a reaction from Berg--and Obama's folks, if they'll talk to me--at some point tonight.

9:00am to 1:00pm

Today is "Answer Day" with regard to Berg v. Obama, so keep checking back here from time to time should I hear anything from my contacts in the federal courthouse.

I expect something will be filed--motion to dismiss or for motion for extension of time--and probably, for insulation purposes, by the DNC and not by Obama's camp, and will keep everyone here abreast of any changes. On the off-chance that nothing is filed today, I'll do my best to obtain comment from Phil Berg and will attempt to present details, options and analysis later this evening. Still, we might not know anything for sure until tomorrow morning.

Under Rule 12(a)(1)(A) of the Federal Rules of Civil Procedure, a defendant must serve an answer within 20 days of being served with the summons and complaint.

Barack Obama and the DNC were served on September 4. Therefore, pursuant to the FRCP, they have until midnight tonight to file their answer to the complaint filed by Philip Berg on August 21. To quote my very own Pre-Trial Advocacy textbook, "[s]ince a complaint must be answered, failing to answer will constitute an admission of all facts alleged in the complaint."

This is why, when everyone asks me via e-mail whether I think Barack Obama or the DNC will file an answer by the end of today, I say "yes." However, he could technically avoid making any sort of answer for another 40 days. Obama could very well allege, after the fact, that he is an officer of the United States and, according to Rule 12(a)(3), should be given 60 days--rather than the 20 days mandated by Rule 12(a)(1)(A)--on the grounds that he was sued in his official capacity for actions or omissions which occurred in connection with the work he performs on behalf of the nation. It would be up to the judge, I guess, to determine whether campaigning for president is considered a duty "performed on the United States' behalf" as required by the rule.

There are a myriad of defenses with which Obama and/or the DNC could respond. However, I'm inclined to think, due to the nature of this case and of the previous cases against John McCain, that any one of the defendants will fire the first shot with a motion to dismiss on grounds that Berg lacks standing.

For both sides, there are numerous options in terms of strategy. I'll flesh some of those out as things progress today and as it is appropriate to do so.


TOPICS: Constitution/Conservatism; Front Page News; News/Current Events; Politics/Elections
KEYWORDS: barrydunham; barrysoetoro; berg; bergvobama; birth; birthcertificate; certifigate; citizenship; clinton; colb; colbaquiddic; dnc; dunham; hawaii; hillary; indonesia; kenya; lawsuit; obama; obamacolb; obamafamily; obamatruth; obamatruthfile; passport; philberg; philipberg; puma; pumas; soetoro
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Motion to Dismiss is here as filed by Obama, the Kenyan.
1 posted on 09/24/2008 9:52:00 PM PDT by solfour
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To: pissant; expatguy; SE Mom

ping


2 posted on 09/24/2008 10:03:02 PM PDT by Jet Jaguar (Who would the terrorists vote for?)
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To: solfour
I would have expected Obambi to file a birth certificate with the court. Does that mean he admits to all the allegations named in the suit? You would think he could clear this all up instead of trying to get it dismissed on technical grounds!

"Show me just what Mohammed brought that was new, and there you will find things only evil and inhuman, such as his command to spread by the sword the faith he preached." - Manuel II Palelologus

3 posted on 09/24/2008 10:03:08 PM PDT by goldstategop (In Memory Of A Dearly Beloved Friend Who Lives In My Heart Forever)
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To: solfour

Instead of filing a motion to dismiss, why didn’t he just bring his birth certificate?


4 posted on 09/24/2008 10:03:12 PM PDT by noob4palin (That's Governor Palin to you.)
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To: solfour

So is he a citizen?

If not, will he get away with it


5 posted on 09/24/2008 10:05:57 PM PDT by GreaterSwiss
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To: noob4palin

Thanks for posting this.
Lucy...evening and PING! comin’ atcha ;)


6 posted on 09/24/2008 10:06:28 PM PDT by JerseyDvl (What do Obama and Osama have in common?-They both have friends who bombed the Pentagon! - Bill Ayers)
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To: noob4palin
Like I said, what has Obambi got to hide? Either he is a natural born citizen or if not, he is constitutionally ineligible to be President.

"Show me just what Mohammed brought that was new, and there you will find things only evil and inhuman, such as his command to spread by the sword the faith he preached." - Manuel II Palelologus

7 posted on 09/24/2008 10:06:30 PM PDT by goldstategop (In Memory Of A Dearly Beloved Friend Who Lives In My Heart Forever)
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To: solfour

hey solfour, sorry I thanked the wrong person before.
Funny title...no offense noob..great to have you here at FR!
This is some garbage isn’t it..lol. Not that I expected any different.
I relly wish he would just put the COLB story to bed and present it. But then, what the hell do I know!
I’m honest.


8 posted on 09/24/2008 10:18:11 PM PDT by JerseyDvl (What do Obama and Osama have in common?-They both have friends who bombed the Pentagon! - Bill Ayers)
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To: solfour
Here is Phillip Berg's response. It is worth reproducing in full:

Obama & DNC

Hide Behind Legal Issues

While Betraying Public in not Producing a Certified Copy of Obama’s “Vault” Birth Certificate and Oath of Allegiance

Country is Headed to a Constitutional Crisis

(Lafayette Hill, Pennsylvania – 09/24/08) - Philip J. Berg, Esquire, the Attorney who filed suit against Barack H. Obama challenging Senator Obama’s lack of “qualifications” to serve as President of the United States, announced today that Obama and Democratic National Committee [DNC] filed a Joint Motion to Dismiss on the last day to file a response, for the obvious purpose of delaying Court action in the case of Berg v. Obama, No. 08-cv-04083.

Their joint motion indicates a concerted effort to avoid the truth by delaying the judicial process, although legal, by not resolving the issue presented: that is, whether Barack Obama was “natural born.”

It is obvious that Obama was born in Kenya and does not meet the “qualifications” to be President of the United States pursuant to our United States Constitution. Obama cannot produce a certified copy of his “Vault” [original long version] Birth Certificate from Hawaii because it does not exist.

DNC Chairperson Howard Dean should resign as he has not and is not fulfilling his responsibility of seeing that a “qualified” candidate is on the ballot as the Democratic candidate for President of the United States.

Berg stated that a response will be made in the next few days to their Motion to Dismiss.

9 posted on 09/24/2008 10:22:41 PM PDT by goldstategop (In Memory Of A Dearly Beloved Friend Who Lives In My Heart Forever)
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To: solfour
Obama could very well allege, after the fact, that he is an officer of the United States and, according to Rule 12(a)(3), should be given 60 days--rather than the 20 days mandated by Rule 12(a)(1)(A)--on the grounds that he was sued in his official capacity for actions or omissions which occurred in connection with the work he performs on behalf of the nation.

That allegation would be patently wrong. Obama is a private individual running for office. He cannot in his official capacity as an elected official run for office. If Obama fails to respond, the judge should summarily find against Obama.

10 posted on 09/24/2008 10:25:10 PM PDT by Tax Government (Elect Obama's Teleprompter)
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To: goldstategop

Whoah...nice update.
So apparently, the judge didn’t dismiss it right away.
I need the law explained to me, sorry.
Just the fact it is still alive makes me want to laugh and sigh at the same time.
Happy that Obambi really doesn’t have the COLB.
A little anxious over the fact that we might have a Kenyan President.


11 posted on 09/24/2008 10:27:25 PM PDT by JerseyDvl (What do Obama and Osama have in common?-They both have friends who bombed the Pentagon! - Bill Ayers)
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To: goldstategop

Whoah...nice update.
So apparently, the judge didn’t dismiss it right away.
I need the law explained to me, sorry.
Just the fact it is still alive makes me want to laugh and sigh at the same time.
Happy that Obambi really doesn’t have the COLB.
A little anxious over the fact that we might have a Kenyan President.


12 posted on 09/24/2008 10:27:25 PM PDT by JerseyDvl (What do Obama and Osama have in common?-They both have friends who bombed the Pentagon! - Bill Ayers)
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To: solfour

Is it really necessary to spam the sidebars with this nonsense when truly important stories are breaking around the clock?


13 posted on 09/24/2008 10:31:20 PM PDT by jmc813
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To: JerseyDvl
Yep. If the judge rules against him, he would have to be removed from every ballot in the country. The Constitution is clear about the qualifications to be President. He must be (and this is the same for Vice President) a natural born citizen. A naturalized citizen is eligible for every federal office save the Presidency and Vice Presidency.

"Show me just what Mohammed brought that was new, and there you will find things only evil and inhuman, such as his command to spread by the sword the faith he preached." - Manuel II Palelologus

14 posted on 09/24/2008 10:31:44 PM PDT by goldstategop (In Memory Of A Dearly Beloved Friend Who Lives In My Heart Forever)
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To: jmc813
Its NOT nonsense! I think Obama could have put the issue to bed by presenting a COLB to the court. Why not?

"Show me just what Mohammed brought that was new, and there you will find things only evil and inhuman, such as his command to spread by the sword the faith he preached." - Manuel II Palelologus

15 posted on 09/24/2008 10:32:56 PM PDT by goldstategop (In Memory Of A Dearly Beloved Friend Who Lives In My Heart Forever)
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To: solfour

How can a citizen of the United States not have standing to question a presidential candidate’s qualifications as per the Constitution?


16 posted on 09/24/2008 10:34:59 PM PDT by skr (I serve a risen Savior!)
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To: jmc813

C’mon jmc, this guy had a chance to end the BS and clear his name as an American.

Barry Soetoro chose not to take that route because he has done nothing but lie about his entire life and a willing accomplice in the media is helping usher in socialism.

If you don’t like this subject you can go and hit the other Breaking News. Why do you have to bust balls?


17 posted on 09/24/2008 10:36:06 PM PDT by JerseyDvl (What do Obama and Osama have in common?-They both have friends who bombed the Pentagon! - Bill Ayers)
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To: goldstategop
Its NOT nonsense! I think Obama could have put the issue to bed by presenting a COLB to the court. Why not?

Because any politician out there realizes that legitimizing crap like this by acknowledging it can only hurt them. This is freaking stupid.

18 posted on 09/24/2008 10:36:48 PM PDT by jmc813
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To: goldstategop; skr

Great minds ;)


19 posted on 09/24/2008 10:37:59 PM PDT by JerseyDvl (What do Obama and Osama have in common?-They both have friends who bombed the Pentagon! - Bill Ayers)
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To: JerseyDvl
If you don’t like this subject you can go and hit the other Breaking News. Why do you have to bust balls?

Because this makes us as freepers look like the irrational jackasses who have invented all sorts of ridiculous conspiracy theories about Palin. You people are not going to be the next Buckhead. Get over it.

20 posted on 09/24/2008 10:39:21 PM PDT by jmc813
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To: jmc813
Phillip Berg is a Democrat by the way. This suit wasn't filed by the GOP. FWIW, Berg does NOT believe Obama is a natural born citizen.

"Show me just what Mohammed brought that was new, and there you will find things only evil and inhuman, such as his command to spread by the sword the faith he preached." - Manuel II Palelologus

21 posted on 09/24/2008 10:40:03 PM PDT by goldstategop (In Memory Of A Dearly Beloved Friend Who Lives In My Heart Forever)
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To: jmc813

I don’t understand why you feel he need to stop in.

Wouldn’t something that wastes bandwidth also waste your time.

No disrespect, but this is last reply because you are wasting mine if you just want to toss a turd in the punch bowl.

I really thought this would be dismissed and over tonight.


22 posted on 09/24/2008 10:40:35 PM PDT by JerseyDvl (What do Obama and Osama have in common?-They both have friends who bombed the Pentagon! - Bill Ayers)
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To: solfour

From the motion — “...for failure to state a claim upon which relief can be granted...”

For crying out loud, producing the COLB would be the “claim upon which relief could be granted”


23 posted on 09/24/2008 10:40:40 PM PDT by ProtectOurFreedom
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To: jmc813
If its a ridiculous conspiracy theory, why can't Obama just tell the court the truth? Its not too much to ask from someone who wants to be our President. But he shouldn't if he hides a secret he doesn't want the rest of us to find out.

"Show me just what Mohammed brought that was new, and there you will find things only evil and inhuman, such as his command to spread by the sword the faith he preached." - Manuel II Palelologus

24 posted on 09/24/2008 10:42:05 PM PDT by goldstategop (In Memory Of A Dearly Beloved Friend Who Lives In My Heart Forever)
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To: ProtectOurFreedom

Do you think the judge had to re-consider as a result of this?


25 posted on 09/24/2008 10:43:38 PM PDT by JerseyDvl (What do Obama and Osama have in common?-They both have friends who bombed the Pentagon! - Bill Ayers)
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To: JerseyDvl
It isn't. The underlying question has NOT been addressed. All the technicalities in the world won't make a germane issue disappear.

"Show me just what Mohammed brought that was new, and there you will find things only evil and inhuman, such as his command to spread by the sword the faith he preached." - Manuel II Palelologus

26 posted on 09/24/2008 10:43:45 PM PDT by goldstategop (In Memory Of A Dearly Beloved Friend Who Lives In My Heart Forever)
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To: jmc813; All
Because this makes us as freepers look like the irrational jackasses who have invented all sorts of ridiculous conspiracy theories about Palin.

No comparison. The unresolved issue of Obama's eligibility to serve as President is not going away. All The One has to do is produce the original vault copy of his birth certificate, and it all goes away. Their motion to dismiss establishes that they are unable to do that.

You people are not going to be the next Buckhead. Get over it.

FRiend, you are not in a position to know that, let alone say that.
27 posted on 09/24/2008 10:44:54 PM PDT by mkjessup (How much outrage would there be if Sat Nite Live joked about Obama, incest and *his* daughters?)
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To: goldstategop

Very true gold, it only matters to those of us who want an American President.

I thought that held true for everyone here but it certainly doesn’t.


28 posted on 09/24/2008 10:46:56 PM PDT by JerseyDvl (What do Obama and Osama have in common?-They both have friends who bombed the Pentagon! - Bill Ayers)
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To: All

Damn, it’s too late for me to take this all in right now and I have to still put out a POST outing YouTube as a commie site that propagandizes for Obambi everyday.

I never thought it would be this nasty and in your face but its international and we know who the “outside” wants.

Yup! The guy that will weaken America the most, apologize daily, and neuter our defenses.


29 posted on 09/24/2008 10:52:59 PM PDT by JerseyDvl (What do Obama and Osama have in common?-They both have friends who bombed the Pentagon! - Bill Ayers)
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To: goldstategop
Like I said, what has Obambi got to hide? Either he is a natural born citizen or if not, he is constitutionally ineligible to be President.

If he is removed, I can picture riots in the streets, that makes the sixtieths' pale in comparison!!!

30 posted on 09/24/2008 11:02:56 PM PDT by danamco
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To: solfour

“The law is an ass.”

This garbage about “standing” is just a way for the courts to avoid getting involved in what they’d rather have decided at the ballot box.

And if a person who is actually ineligible does get elected...? The courts seem to be saying that only a defeated candidate has standing to sue in that situation; and so if McCain didn’t sue after the fact, Hussein reigns as an ineleigible President. And who the hell can do anything about it, because felons and illegal aliens put him over the top...


31 posted on 09/24/2008 11:11:04 PM PDT by VigilantAmerican (We will not waver, we will not tire; we will not falter, we will not fail)
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To: danamco
If he is removed, I can picture riots in the streets, that makes the sixtieths' pale in comparison!!!

That might be the plan. Disrupt the nation, cancel the election, force a revolution...

32 posted on 09/24/2008 11:24:48 PM PDT by Swordmaker (Remember, the proper pronunciation of IE is "AAAAIIIIIEEEEEEE!)
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To: solfour

Posters keep asking “why doesn’t Hussein just produce his authentic birth certificate instead of using legal motions and technicalities?”, etc.

One reason is because Berg’s suit is about much more than just where Hussein was born; in fact the complaint says that even if Hussein can prove that he was in fact born in Hawaii, there are a myriad of other disqualifying factors (such as later dual and/or exclusive citizenship in Indonesia due to his adoption/residence there, lying about names used on his Illinois bar application, and so on).

Hussein wants the suit tossed on lack of standing so he doesn’t have to answer all the allegations, and it probably will be thrown out.

The courts seem to say that if a competing candidate doesn’t sue, and if the voters actually elect an ineligible candidate, noone can do anything about it!


33 posted on 09/24/2008 11:42:11 PM PDT by VigilantAmerican (We will not waver, we will not tire; we will not falter, we will not fail)
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To: VigilantAmerican
The courts seem to say that if a competing candidate doesn’t sue, and if the voters actually elect an ineligible candidate, noone can do anything about it!

This raises numerous questions. First he gets into office basically illegally as he would/could be ineligible. Even though people vote for him knowingly or more likely unknowingly of the real truth.

Flash forward 3-4 years. All this stuff comes out and he is removed from office. Potentially Biden and cohorts are accessories and booted too?

Do all the socialist laws, treatise, etc. become null and void? Sort of like when someone gets married and then finds out the officiant wasn't legally able to marry them?

34 posted on 09/25/2008 3:54:39 AM PDT by EBH ( ... the riotousness of the crowd is always very close to madness. --Alculin c.735-804)
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To: goldstategop
You would think he could clear this all up instead of trying to get it dismissed on technical grounds!

It's a nuisance suit. The last thing Obama would want to do is do what its demanding he do.

35 posted on 09/25/2008 4:03:12 AM PDT by Non-Sequitur
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To: goldstategop
It is obvious that Obama was born in Kenya and does not meet the “qualifications” to be President of the United States pursuant to our United States Constitution.

Then prove it.

36 posted on 09/25/2008 4:04:36 AM PDT by Non-Sequitur
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To: skr
How can a citizen of the United States not have standing to question a presidential candidate’s qualifications as per the Constitution?

In order to prove standing he has to show how he is injured by Obama's actions.

37 posted on 09/25/2008 4:07:03 AM PDT by Non-Sequitur
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To: goldstategop
FWIW, Berg does NOT believe Obama is a natural born citizen.

Berg also doesn't believe that the 9/11 attack was caused by al Qaida.

38 posted on 09/25/2008 4:13:46 AM PDT by Non-Sequitur
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To: goldstategop
If its a ridiculous conspiracy theory, why can't Obama just tell the court the truth?

Because he doesn't have to.

39 posted on 09/25/2008 4:14:28 AM PDT by Non-Sequitur
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To: solfour
All this bull$h!+ would go away in an instant if Barama would produce a legitimate birth certificate . Berg must be on to something profound .
40 posted on 09/25/2008 4:34:39 AM PDT by lionheart 247365 ((Socialism . . . the catalyst of mediocrity))
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To: JerseyDvl
Kenya may become the 58th State!
41 posted on 09/25/2008 5:06:53 AM PDT by Ancient Drive
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To: Non-Sequitur

If elected and proofs show he had Indonesian citizenship (not dual citizenship) can he be impeached???


42 posted on 09/25/2008 5:15:41 AM PDT by danamco
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To: danamco
If elected and proofs show he had Indonesian citizenship (not dual citizenship) can he be impeached???

I would assume so. In fact I'd go so far as to suggest that impeachment wouldn't even be necessary since it isn't a question of a crime being committed but simple unqualification for the office. His authority would end the day it was proved he was ineligible to hold the office in the first place. And it'd make an interesting legal question as to the legality of whatever actions he took while president.

43 posted on 09/25/2008 5:33:46 AM PDT by Non-Sequitur
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To: jmc813
Your issue? It only increases curiosity as to whether he can produce a birth certificate. Why would Obama and the DNC waste time and money at this point to fight if they could just produce it? It interests me.
44 posted on 09/25/2008 6:20:06 AM PDT by nclaurel (I think therefore I vote Republican.)
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To: danamco

If he is not a natural citizen, what would we be getting if he won. I think the media would bulk more than many blacks. Most blacks I know are so anxious to have a black President, but would be very upset at what the DNC put on them. They love America too. And if Obama lied and tricked his way to the race many would be appauled.


45 posted on 09/25/2008 6:26:28 AM PDT by nclaurel (I think therefore I vote Republican.)
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To: Ancient Drive

Obama had visited 57 states, had one to go and wasn’t going to Alaska or Hawaii-—that would make Kenya the 61st state.


46 posted on 09/25/2008 6:31:51 AM PDT by nclaurel (I think therefore I vote Republican.)
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To: goldstategop

Bookmark


47 posted on 09/25/2008 7:05:30 AM PDT by antisocial (Texas SCV - Deo Vindice)
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To: nclaurel

true true I stand corrected.. lol


48 posted on 09/25/2008 9:36:35 AM PDT by Ancient Drive
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To: Non-Sequitur
In order to prove standing he has to show how he is injured by Obama's actions.

Logically, everyone in America is injured by a fraudulent candidate, since he deprived the citizenry of a legal choice. Donations made to an illegal candidate would constitute larceny. Instead of stalling motions, why not a birth certificate?

49 posted on 09/25/2008 12:33:39 PM PDT by skr (I serve a risen Savior!)
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To: skr
Logically, everyone in America is injured by a fraudulent candidate, since he deprived the citizenry of a legal choice.

Legally, how would you quantify that? That's like saying everyone in the country is damaged by an airplane crash because it shakes their faith in airline travel.

Donations made to an illegal candidate would constitute larceny.

No they wouldn't. Fraud, maybe.

Instead of stalling motions, why not a birth certificate?

Because he isn't required to. The burden of proof is on the plaintiff.

50 posted on 09/25/2008 12:42:00 PM PDT by Non-Sequitur
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