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Did the Senate hold hearings on John McCain’s eligibility?

According to attorney Gary Kreep, speaking before the 9th Circuit Court of Appeals, they did. I have seen claims that these hearings happened, and that they didn’t. I present this article, and solicit comment, to arrive at an answer.

An April 2, 2008, exchange between Senate Judiciary Committee Chairman Patrick Leahy and Secretary of Homeland Security Michael Chertoff is claimed to be part of the hearing. S. Res. 511 would not be introduced until April 10, the following week. As one can see from the full context, the exchange was not made during a consideration of Senate Resolution 511, but as part of the oversight of the Department of Homeland Security:

Chairman Leahy: … I would mention  one other thing, if I might, Senator Specter. Let me just ask this:  I believe–”and we have had some question in this Committee to  have a special law passed declaring that Senator McCain, who was  born in the Panama Canal Zone, that he meets the constitutional  requirement to be President. I fully believe he does. I have never  had any question in my mind that he meets our constitutional requirement.  You are a former Federal judge. You are the head of the  agency that executes Federal immigration law. Do you have any  doubt in your mind–”I mean, I have none in mine. Do you have any  doubt in your mind that he is constitutionally eligible to become  President?

When Senator Leahy introduced the bill to the Senate on April 10, he said, referring to the preceding exchange:

I ask unanimous consent that the relevant excerpt from the Judiciary Committee hearing where Secretary Chertoff testified be made a part of the RECORD. [Emphasis added]

Obviously this cannot refer to a hearing on S. Res. 511 because the resolution is only being introduced at this point. According to the Congressional web site, Thomas.gov, S. Res. 511 was then assigned to the Judiciary Committee.

The Judiciary Committee included S. Res. 511 on its busy agenda for April 24, described as a “business meeting” and not a hearing. The Committee reported the resolution favorably.

When the Senate debated S. Res. 511 on April 30, 2008, Senator Leahy included the “Tribe/Olson” report as part of his statement. The Judiciary Committee made no written report.

The following statement appeared on FreeRepublic.com, but I was unable to determine where it was supposed to have come from:

There were hearings. On April 30, 2008, “Senate S.Res.511 – A resolution recognizing that John Sidney McCain, III, is a natural born citizen,” was passed after appropriate hearings on the matter of his eligibility.

After extensive searches at the Government Printing Office, I conclude that that S. Res. 511 was discussed by the Senate Judiciary Committee both before and after the Resolution’s introduction on April 10, but no hearings were specifically held on it.

The actual question of John McCain’s eligibility is beyond the scope of this web site. I mention it here only in the context of birther claims based on this supposed hearing.

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8 Responses to Did the Senate hold hearings on John McCain’s eligibility?

  1. avatar
    UnionJack May 4, 2011 at 4:57 pm #

    Hi Doc – I looked into this myself, and agree whole-heatedly with you that there was no “hearing” on the matter, and there were no documents from the Committee in the 110th Congress ever made part of any public record. See Senate Judiciary Committee, Senate Judiciary Committee documents: 110th Congress, at: http://judiciary.senate.gov/resources/documents/110thCongress.cfm.
    Also, nothing on the Judiciary Committee’s calendar, either from the 110th Congress:
    S. PRT. No. 110-57, United States Senate, Committee on the Judiciary, Legislative and Executive Calendar, 110th Congress, Final Edition (2009).

  2. avatar
    Vince Treacy May 4, 2011 at 5:40 pm #

    Absolutely right, Doc. Good work. This agrees with research I posted on the Turley site way back in April and May 2008, when the matter was pending before the Senate:

    http://jonathanturley.org/2008/03/29/olson-and-tribe-argue-that-mccain-is-natural-born/

    I posted the Tribe-Olson memo at the same time, as soon as it became available. Kreep was confused about the role of Tribe and Olson. They were not McCain’s representatives in any hearing or proceeding: they simply produced a written legal opinion for McCain, the Senate and the general public.

    At that time, there was not even a whisper about Obama’s eligibility because …. wait for it … be patient … it is coming … here it is … he was born in one of the 50 United States, so there was no question about his qualification as a natural born citizen.

    Tribe and Olson expressly noted that Obama was qualified: “And Senator Barack Obama was born in Hawaii on August 4, 1961–not long after its admission to the Union on August 21, 1959. We find it inconceivable that Senator Obama would have been ineligible for the Presidency had he been born two years earlier.”

    That was three years ago. Seems like a long time ago.

    Kreep is entitled to his own opinions, but not to his own history. Like the character in Orwell’s “1984,” he is busily revising and rewriting the history to fit his own fractured arguments.

    Kreep is a revisionist historian.

  3. avatar
    Reality Check May 4, 2011 at 6:30 pm #

    Vince Treacy: Kreep is a revisionist historian.

    Down in my neck of the woods we would call him something else. I think it starts with “L” and rhymes with fryer.

  4. avatar
    jayHG May 4, 2011 at 7:03 pm #

    This is a birther myth, but since when has that ever mattered to a birther?

  5. avatar
    AdrianInEngland May 5, 2011 at 7:17 am #

    Rule one of the Big Book For Birthers is “in the absence of corroborating evidence, make it up and repeat it enough times until it’s believed as fact, see ‘Obama spent millions fighting release of his Birth Certificate’.

  6. avatar
    UnionJack May 5, 2011 at 11:10 am #

    Oh, btw, – in case people give too much weight to the Senate Resolution, remember that a simple, one-house resolution “has no legal effect but is used in dealing with nonlegislative matters” (RIDDICK’S SENATE PROCEDURE, S. Doc. 101-28, at 1202, 1210 (1992)), and that they are used “in dealing with nonlegislative matters such as expressing opinions or facts” (DESCHLER’S PRECEDENTS, Vol. 7, Ch. 24, sec. 6). So, H. Res. 593, 111th Congress, adopted by the House stating that Obama “was born in Hawaii on August 4, 1961,” is of equal legal import to the Senate’s action.

  7. avatar
    Scientist May 5, 2011 at 12:48 pm #

    UnionJack: Oh, btw, – in case people give too much weight to the Senate Resolution, remember that a simple, one-house resolution “has no legal effect but is used in dealing with nonlegislative matters” (RIDDICK’S SENATE PROCEDURE, S. Doc. 101-28, at 1202, 1210 (1992)), and that they are used “in dealing with nonlegislative matters such as expressing opinions or facts” (DESCHLER’S PRECEDENTS, Vol. 7, Ch. 24, sec. 6). So, H. Res. 593, 111th Congress, adopted by the House stating that Obama “was born in Hawaii on August 4, 1961,” is of equal legal import to the Senate’s action.

    The purpose of the resolution was not to be legally binding; rather, it was to tell voters, “If you elect McCain, we in Congress will accept your choice and not support a challenge to his eligibility”. Since a challenge to the Electoral College votes requires the signature of 1 Representative and 1 Senator, the Senate was in effect saying, in advance, that a challenge would go nowhere.

  8. avatar
    UnionJack May 5, 2011 at 1:26 pm #

    Yes, I suppose it was saying something like that, an advance warning. However, the Senators that stated the “sense” of the Senate in that resolution (in the 110th Congress) were not the same Senators who counted the electoral votes (in the 111th Congress), and the previous body could not bind the new one. I was just commenting on its non-binding, opinion-only nature as a counter to the birthers who blather on that the Senate took legal action and passed a law to recognize McCain’s status, which of course is completely specious.

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