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.
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.
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.
Obama had visited 57 states, had one to go and wasn’t going to Alaska or Hawaii-—that would make Kenya the 61st state.
Bookmark
true true I stand corrected.. lol
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?
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.
Berg v. Obumpa
No, it wouldn’t, because the suit goes into a myriad of reasons why Hussein is ineligible even if it can be proved that he was born in Hawaii. His later Indonesian dual or exclusive citizenship, for one. There are a whole bunch of other disqualifying aspects.
And so how is it that someone gets the opportunity to prove that he’s ineligible for the office, if noone but McCain (as the defeated candidate, and he isn’t going to throw stones) has standing to sue, and the media and various “powers that be” are utterly uninterested in exploring the issue?
You’re saying that after he’s elected all of a sudden some party will be able to call the President of the United States onto the carpet about his eligibility, when noone seems to be either able or interested in doing so before he’s elected.
Is Bubba behind Phil Berg ? Berg is a Dem. and he’s surely not doing the party any favors .
Riots because BO is unmasked as a fraud? Riots if he's not elected, because half the country can see that he is an incompetent empty suit? That is a barefaced, racist threat!
What would be the reaction to: "If BO wins, I can see the rise of the KKK and private militia all over the country."
Not pretty coming from either direction. That kind of rhetoric is better suited to 'Rats and "community organizers".
Whether or not the judge allows Phil and the American voter to have their day in court, we should not be waiting around for the judge's ruling.
It is a matter of common knowledge that Barack Obama has not been sufficiently vetted to serve as President, that he has not provided proof of being a "Natural born" citizen of the US, has not provided proof of what is his real age, has not provided proof that he does not have citizenship standing in one or more foreign countries, has not provided proof that he registered for the Selective Service, has not provide proof that he never accepted illegal campaign contributions while running for, and serving, as a Senator and candidate for President, that he has not violated the Logan Act by entering into or seeking to crerate any agreements with a foreign government to influence foreign policy, that he has not provided proof of his position and activities while at Harvard, has not provided transcripts of his time at Columbia College, has not provide proof to counter the evidence that he has been working with known terrorists against the interests of the US, that he has not violated his oath to uphold the Constitution, and many, many more.
If the media won't say it, then we'll take a page from Obama's own playbook: "We'll get in their face and tell them that Obama is a fraud, a liar, a miscreant who should never have been allowed to serve as a Senator, let alone be considered a candidate for President.
While it is true that the burden of proof falls upon on the plaintiff, that plaintiff can consist of a class action suit brought about by voters whose freedom to choose a candidate of their liking has been denied, thereby effectively disenfranchising them. The argument that the losing candidate is the injured party, and not the voter, should be challenged at every level, all the way up to the Supreme Court.
Legally, election fraud can be quantified. Let's say that everyone in a district cast their votes for Candidate A in the primaries, but somehow, Candidate B won. You don't think that a court would deny hearing a motion for injunctive relief filed by Candidate A and the people who would testify, under oath, that they voted for him?
If some of these people also stand to lose their jobs if Candidate B is elected, then they can demand to be made whole again.
Just a thought.
Once the Kenyan Obama is President none of this will matter. Democrat politicians and the MSM will circle the wagons, claim its just a technicality and that will be that.
That's why it's vital that Obama, the Kenyan, be exposed before he becomes President.
It's going to be tough with even Fox News unwilling to discuss the issue.
And what if he's found out after the election, but before he takes office? George Bush could have him arrested, deported, and stripped of his passport. He wouldn't be able to attend his inauguration. The mind boggles. Who the heck would be President?
The prospect of a second civil war in the US is becoming substantially brighter.
Presenting solid evidence supporting your case would be a start. Rumors and wild tales aren't doing the job, you need to show conclusively that he wasn't born in the U.S. How are you going to do that?
You’re saying that after he’s elected all of a sudden some party will be able to call the President of the United States onto the carpet about his eligibility, when noone seems to be either able or interested in doing so before he’s elected.
Again, evidence is the key. He isn't going to do your job for you.
Dunno if the Clintons are at all using Berg as a proxy, but they might as well be—he happens to be a Hildebeest supporter.
But he’s also got quite a record of getting involved in Quixotic cases—a 9/11 “truther” suit, one demanding SCOTUS justices resign over Bush v. Gore 2000, etc.
If not for this worthy cause of Hussein not being loyal to the U.S. and therefore ineligible for POTUS, I’d personally wish the worst on Berg. But as it is, he has my support as far as Hussein’s disqualification.
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