An argument in the form of a question
If Obama has nothing to hide, when why has he spent $81 Berjillion1 dollars on legal fees to seal his records?”
This question actually hides two assumptions:
- Obama has spent $81 Berjillion1 dollars on legal fees
- Obama is using lawyers to seal his records
Usually, since the argument is made in the form of a question, no one actually justifies the underlying claims in the question. Let’s look at them.
Obama has spent $81 Berjillion dollars on legal fees
Where does this number come from? I’ve seen two arguments. The first involves the fact that the same legal firm, Perkins Coie, represented both President Obama and his Presidential Campaign. Federal Election Commission filings reveal millions of dollars in legal fees spent by the Campaign. If one had the total of all the legal expenses and subtracted all the other campaign legal expenses, what would be left should be what was spent by the Campaign defending Obama eligibility lawsuits. However, since the “all other” number is not known, the answer is just a wild guess. Another approach is to assume that all other campaign legal expenses ended the moment Obama was elected and that every legal expense since them is for defending Obama eligibility lawsuits. However, one need only glance at the FEC page to see hundreds of campaign filings made since November of 2008 and add that to the cost of FEC post-election audits. To top that off, no one has shown (to my knowledge) that any Campaign dollars went to defend Obama eligibility lawsuits.
The second approach is an appeal to common sense: “with all those lawsuits surely there must be millions in legal fees.” The problem with that is that there are not as many lawsuits as one might think. The best count I have on Obama eligibility lawsuits is 74. That is a lot, until one looks at the specifics of the lawsuits. In only 3 of the cases did Obama defend the suit, just 3. In most of the cases, Barack Obama is not named, and in some where Obama is named, the court dismissed the case sua sponte (on its own accord) with no motions filed by Obama. So let’s look at the three cases that Barack Obama’s lawyers defended.
The first is Berg v. Obama et al. Barack Obama and the Democratic National Committee were both defendants in this case, and filed motions jointly. I don’t know if they share legal fees or one or the other paid them. The Federal Elections Commission, also a defendant, was represented by the Justice Department.. In Berg v. Obama et al, Obama and DNC attorneys filed for dismissal and the court agreed. In the document history for the case, I see these filings from Obama:
- Motion to dismiss, 9/24/2008, 11 pages.
- Motion to stay discovery filed by Obama and DNC, 10/6/2008, 10 pages.
- Motion to dismiss amended complaint, 10/20/2008, 9 pages
The second case Obama defended was that of Keyes v Bowen in California state court. In that case part of Obama’s defense was represented by Frederick Woocher’s firm. Woocher told Politico.com:
“This suit, like all of the others that have been filed challenging Obama’s qualifications for the Presidency, is frivolous,” he said in an email to POLITICO, adding that he is, in fact, working pro bono [for the public good, without fee]. “There is absolutely no truth to the stories about the untold millions supposedly being paid to us,” he said.
Obama’s regular attorney, Robert F. Bauer, also represented him in this case. The case was dismissed and court costs were assessed against the plaintiff. I don’t have a full copies of all documents filed, but there do not appear to have been many beyond some fairly routine things.
The third case Barack Obama defended was the federal lawsuit Hollister v Soetoro. The document list for that lawsuit show the following filings from Obama attorneys:
- Notice of appearance, January 26, 2009, 1 page (1 sentence)
- Motion to dismiss, January 26, 2009, 11 pages
- There were two one-sentence motions substituting the attorney
It’s instructive that the court informed Obama’s attorneys that they need not reply to Hollister’s amended complaint. So there was only one document of any substance filed by Obama’s attorneys in this case.
So we have a total of 44 pages for the two federal lawsuits, and an unknown number of pages in the state suit, some of which were donated by the attorney. No reasonable price per page gets us into the million-dollar range, and some work in California was pro bono.
I have not included an analysis of the cost of appeals in the three cases. Obama filed no documents in the Supreme Court petitions. Lower court appeals would have been in line with earlier filings if any were made.
I assert, and I have never been challenged when I said it, that no Obama record that was public in 2007 became “sealed” or private as the result of any court action. That is, Obama didn’t spend any money to seal records. Did Obama spend money to keep records sealed?
Certainly having these lawsuits dismissed prevented them from moving forward to a discovery phase where documents might have been subpoenaed (and greatly increased legal fees would have resulted!). However, to say that Obama spent money having the cases dismissed for the purpose of keeping documents private implies that he wouldn’t have had to spend the money if he had agreed to turn over the documents, or that he had just spontaneously released them whenever some blogger asked for them on the Internet. That’s not true. Let’s again look at the three cases Obama defended (and this following discussion actually applies to ALL the cases).
In Berg’s First Amended Complaint in Berg v. Obama et al, Berg alleged, among other things:
- Obama lost his citizenship when his mother married an Indonesian
- Obama’s grandmother said he was born in Kenya
- Wayne Madsen located a birth certificate for Obama in Kenya
- Obama must have traveled on a non-US passport because there was a travel ban (there wasn’t) when he want to Pakistan in 1981
None of those would be countered simply by releasing documents. Berg once said that he would drop his lawsuit if Obama would release a birth certificate proving he was a natural born citizen. We can see from the list of allegations that no birth certificate would answer Berg’s criteria for proof.
The issues in Keyes v Bowen also included a number of things that wouldn’t be cleared up by releasing documents such as an alleged dual citizenship in Indonesia, the grandmother recording.
Berg’s case in Hollister v Soetoro follows his complaint in Berg v. Obama et al, and need not be repeated.
In two of the cases, Berg v Obama et al and Keyes v Bowen, Obama (and DNC in the first case) attorneys filed motions to stay discovery or quash a subpoena until the question of dismissal of the suit was decided. Berg asked for a long list of documents, some of which never existed. Keyes was after Obama records at Occidental College in California. These motions could be viewed as keeping records sealed or they could be seen as attempts to avoid unnecessary costs in a case that would be dismissed.
In summary one can say that in all of the instances where Barack Obama defended a lawsuit it was to combat claims that he was not eligible to be President of the United States, using the most cost-effective method at his disposal, a motion to dismiss. In no case would any document available to Barack Obama have settled the suit, and this is true of all the cases, not just the 3 listed here.
Since Barack Obama became President, defense of him in his official capacity falls on the U. S. Department of Justice. Some would try to lump these costs into the “Obama has spent” category. That’s not technically correct and again these lawsuits are not about obtaining documents, but alleging that the President is not the President. The government responds, as it does to all frivolous lawsuits, by moving to dismiss, and the courts have agreed.
We have one anecdote from US Attorney Roger West who said:
“I filed one motion that didn’t take too long, we’ve had two hearings and that’s it,” he says. “It’s not like we’ve devoted some sort of task force to this.”
Army Major Rebecca Ausprung, who defended the Army in two cases involving service personnel challenging the President said:
“The monetary cost to the government in defending these two cases was extremely minimal,”
I would like to present information from FOIA requests that I have heard rumored, but so far I have not been able to find them.
None of the eligibility lawsuits could have been settled with the release of documents. They were dealt with in the most cost-effective way, a motion to dismiss. No records have been sealed as a result of any of these lawsuits. The legal fees spent by Obama defending frivolous lawsuits is not the hugely inflated number rumored on the Internet, nor are there any indication of large expenses on the part of the government.
- What’s Obama’s Birther Legal Bill? – Mother Jones magazine
1 I used this fictional unit of currency because the actual amount posed in the question varies widely from a low of $200,000 to a high of $3 million.