Main Menu

Archive | 2012 Presidential Election

Can Obama be impeached?

There has never been an ineligible President. The gauntlet of press scrutiny, campaign, debate, election, electoral college vote and Congressional objection always works even though one group, the birthers, think it didn’t.

Since early in the birther controversy, the birthers have often said, justifying their quo warranto actions in court, that Obama could not be impeached because he is not really President, and that the Attorney General opinions that a sitting President cannot be arrested or indicted do not apply because Obama is not really the President.

One may not believe that Obama is an eligible President, or one may say that he not the rightful President, but he is the President.  The Constitution sets forth certain eligibility requirements for the President, but the Constitution has been amended since it was ratified in 1789. The 12th Amendment says:

The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted.

The person having the greatest Number of votes for President, shall be the President.

Once a candidate passes the hurdles of the election, and after the Congress counts the votes, and after any objections are resolved, the winner of the election becomes the President-elect, and after he takes the oath of Office on January 20, he is the President, no matter what Article II says about eligibility. Terry Lakin’s expressed concern that his military orders were illegal shows a lack of understanding of the Constitution, as well as the Uniform Code of Military Justice.

There is certainly no distinction in the Constitution between impeaching an eligible or an ineligible President. Obama is now the President, whether he is eligible or not. Who lives at 1600 Pennsylvania Avenue? I do not doubt that Congress, using the power of Impeachment can remove an Article II ineligible President; however, the President is the President until they do. Further, impeachment is not a magic reset button erasing all of the executive orders issued and the legislation signed. Until a President is removed from office, he is the President.

That essential denial that Obama is the President is what has always led me towards a racist interpretation of birtherism. It is the essential denial of what happened that indicates that their is a clash between Obama being President and their world view — not just a disagreement over eligibility, but a clash between the person and the office. Birthers go beyond just saying that a mistake was made; they say that it really didn’t happen. If Obama’s assumption of office were considered just a mistake, then birthers would be satisfied for Congress to correct the mistake through impeachment. Birthers, however, don’t only want Obama out of the White House, they want him never to have been there, and that is impossible.

The Constitution assigns the matter of removing the President to the Legislative Branch of the government. The courts have no role1, and I can not believe that they will ever assert one. As a practical matter, President Obama is eligible and as his own party has a majority in the Senate, and so he will not be impeached and removed from office—but he could be.Chef Justice Rehnquist presiding in the Senate impeachment trial of Bill Clinton

1Excepting that the Chief Justice presides over the impeachment trial in the Senate.

Forever hold your peace

Today is the day on which we suppose that the US Congress will certify the count of the votes of the Electoral College, and Barack Obama will be elected to a second term in office starting 3 hours and 6 minutes from now. You can watch it live on C-SPAN. The US National Archives has an excellent web page detailing the many Constitutional provisions and statutes dealing with the election of the President. Title 3 of the United States Code, Chapter 1, Section 11 contains this:

The Senate and House of Representatives shall meet in the Hall of the House of Representatives at the hour of 1 o’clock in the afternoon on that day, and the President of the Senate shall be their presiding officer. … Upon such reading of any such certificate or paper, the President of the Senate shall call for objections, if any. Every objection shall be made in writing, and shall state clearly and concisely, and without argument, the ground thereof, and shall be signed by at least one Senator and one Member of the House of Representatives before the same shall be received. When all objections so made to any vote or paper from a State shall have been received and read, the Senate shall thereupon withdraw, and such objections shall be submitted to the Senate for its decision; and the Speaker of the House of Representatives shall, in like manner, submit such objections to the House of Representatives for its decision; and no electoral vote or votes from any State which shall have been regularly given by electors whose appointment has been lawfully certified to according to section 6 of this title from which but one return has been received shall be rejected, but the two Houses concurrently may reject the vote or votes when they agree that such vote or votes have not been so regularly given by electors whose appointment has been so certified.

This is the statutory provision that some birthers are invoking in their attempts to forestall Barack Obama’s second term as President. Faxes and letters reportedly have been sent to members of Congress urging them to make such an objection. While the statute seems to be directed at resolving controversies over the electoral votes from individual states, the 20th Amendment makes it clear that Congress has a role in determining whether the president elect may take office:

Section 3. If, at the time fixed for the beginning of the term of the President, the President elect shall have died, the Vice President elect shall become President. If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President elect nor a Vice President elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified.

It would seem to this writer that objections to qualifications apply to the
“President elect” which refers to the person selected by the Electoral College and certified by the Congress. That is, the objection by one House member and one Senator is not the appropriate time to determine qualifications, but that it should come immediately after the vote has been certified.

I do not know precisely how such a decision would be carried out, but this provision has been cited by the courts in support of the proposition that it is the Congress who makes the call as to whether the person elected as President may assume office.

Now is the time; today is the day. If there be any objections speak now, or forever hold your peace. (My comment is a facetious one. Birthers never admit defeat and will never hold their peace. They will keep on beating that dead horse until the Death Panel shuts off their oxygen.)


The certification of the vote has completed. The President of the Senate did not ask for objections. No one raised any point of order. The House chamber was largely empty.

Are you being served?

A curious notice appeared on the Docket of the Grinols v. Electoral College lawsuit in the Eastern District of California. It is the statement of a process server in Hawaii who attempted to serve a subpoena on state vital records chief Dr. Alvin Onaka. As I pointed out in another article, Orly Taitz sues Dr. Onaka a lot. This time it’s just a subpoena, but she’s trying to get the same records, to which she is not entitled, as always.

In this case the server, one Lawrence B. Fenton, executed service by putting papers on a desk and uttering the magic incantation “You are served” in front of a security guard and a secretary, both of whom said they were not authorized to accept service.

Dorothy from the Wizard of OzAnybody remotely familiar with The Federal Rules of Magical Civil Procedure should know that when serving a defendant by magic incantation, the spell must be repeated three times, not two, as for example in the The Wizard of Oz where Dorothy had to say “there’s no place like home” three times before the Oz Wizengamot granted the motion to remand her case to Kansas.

EDCA ECF 28 – Grinols v Electoral College – Second and Third Attempt at Personal Service of Subpoena on Ona…

Taitz will lose the Grinols case

Orly Taitz is going to lose the Grinols v. Electoral College case. Is this because “the fix is in?” No, it is because “the broken is in.” Taitz’ case is obviously and fatally flawed.

One might be tempted to rail against the case, saying that it is doomed because of the monumental incompetence of Orly Taitz as a lawyer. She waited over a month after the election to file the case, making significant parts of it moot before the court could hear it. She bungled service of the complaint. She failed to follow court rules in multiple instances. She basically didn’t do anything right (here are the details); however, most of that could in theory be fixed.

What cannot be fixed with Grinols, as has been the story with most of the birther eligibility lawsuits, is that Grinols, Noonan, Judd and the other guy lack standing. The first question the court will ask is not whether Barack Obama is eligible to be president, but whether Grinols is eligible to bring suit, and he is not. One can go all the way back to Berg v. Obama in 2008 for precedent. A person not directly and individually harmed has no case. The voter in general doesn’t have a right to litigate in federal court anything that he doesn’t like unless directly and individually involved. The Plaintiffs in Grinols were presidential candidates who weren’t on the ballot and presidential electors who didn’t get elected. This issue of standing is not a fiat of the court, but is based in Article III of the US Constitution that defines the jurisdiction of the federal courts.

The second issue with Grinols is that the Constitution gives absolute independence to the Congress in the execution of its legislative function. Taitz is asking the Court to enjoin the Congress from certifying the election, something the Constitution says they cannot do.

This is why Taitz’ subpoenas to half a dozen federal agencies are nonsense; they go to the complaint Taitz presented, and not the the more fundamental problem that the Court cannot hear the case. If the Court cannot hear the case, it cannot hear the evidence.

Birthers have lost 190 straight cases in court. Someone would have to be crazy to think Grinols will come out any different.

Grinols: responses due today

Defense responses are due today in the case of Grinols v. Electoral College, Orly Taitz’ attempt on behalf of some losers in the last election to stop Obama’s second term as President of the United States.

Are you being served?

Chief Judge Morrison C. England of the Federal District Court for Eastern California ordered that responses to Taitz’ motion for an emergency temporary restraining order against California state officials, California Electors, the Congress, the President of the Senate and Barack Obama, that would halt certification of the California vote (too late, already happened), and stay the Congress certifying from the election, and Barack Obama from taking the oath of office, be filed by today, December 26, 2012.

As in any Taitz case, one always has a question of whether defendants have actually been served with complains and subpoenas in accordance with court rules. Observers have noted that some of Taitz’ documents of service in this case have the wrong dates on them, further adding doubts about the process. Apparently Taitz again (I’ve lost track of how many times this has happened), filed a document with President Obama’s unredacted social-security number on it in violation of the rules. We can probably tell by the end of today who has not been properly served by lack of response; however, responses do not necessarily indicate who has been served. No defendant has yet to appear in the case.

Photo of Darrell IssaIn anticipation of the hearing scheduled one week from tomorrow (January 3, 2012), Taitz fired off a flurry of subpoenas to various folks including: Barack Obama (to appear with lots of documents), Social Security Administration Commissioner Michael Astrue, House Oversight Committee Chairman Darrell Issa (pictured right), the Postmaster General, and Selected Service System Director Lawrence Romo.

While irrational optimism (or perhaps Obot troll hyperbole) appears in comments at the Taitz web site (e.g. “With all the legitimate evidence Orly has on her side and no compelling defense on their side, you would think the judge would rule in Orly’s favor by the simple fact that obamma’s (sic) ‘guilty by omission’”), these motions are an exercise in futility. Judge Alsup, writing for the Northern District Court of California in the case of Robinson v. Bowen, said:

Arguments concerning qualifications or lack thereof can be laid before the voting public before the election and, once the election is over, can be raised as objections as the electoral votes are counted in Congress. The members of the Senate and the House of Representatives are well qualified to adjudicate any objections to ballots for allegedly unqualified candidates. Therefore, this order holds that the challenge presented by plaintiff is
committed under the Constitution to the electors and the legislative branch, at least in the first instance. Judicial review — if any — should occur only after the electoral and Congressional processes have run their course.

A previous E.D. Cal. case, Dawson v. Obama, was dismissed for lack of standing in 2009.

The Grinols did not steal Christmas.


Opposition filed

Papers were filed late today in opposition to the Taitz temporary restraining order and subpoenas:

Shutting that whole Sibley thing down

Since we last visited the Sibley v. Alexander case a lot of legal stuff has happened. As you may recall, Sibley filed his lawsuit in the District of Columbia Superior Court against its three members of the Electoral College. He asked for an injunction against their voting for Obama, and he fired off a number of subpoenas to colleges for Obama’s education records and others. The Defense removed the case to federal court where motions have been filed by the Attorney General of the District of Columbia to:

  1. Dismiss the case as moot, and for lack of standing, and for being in error as a matter of law
  2. Deny Sibley’s motion for remand (return the case to Superior Court)
  3. Stay Sibley’s subpoenas and all discovery as irrelevant
  4. Deny Sibley’s other motions (shut that whole Sibley thing down)
  5. Sanction Sibley for filing a frivolous lawsuit
  6. Enjoin Sibley from pursuing any Obama eligibility litigation in the District without leave of the Court

It is interesting to read the Defense brief in that it recites so many of the birther cases, from Ankeny to Taitz, as precedent for dismissing this one. The Defense describes Sibley’s quest as obsessive:

But none of the discovery sought is remotely relevant to these claims, and is concerned solely with plaintiff’s obsession with the President’s “eligibility” for office.

Here the Defense motion:

Continue Reading →