Main Menu

Tag Archives | Berg v. Obama


I failed to note two important anniversaries yesterday. I was reminded of the first by Bill Bryan via Twitter. It was the 6th anniversary of the first birther Obama eligibility lawsuit, Berg v. Obama, filed August 21, 2008.

The second is the 55th anniversary of statehood for Hawaii, admitted to the union August 21, 1959. I remember the year well because as a child I had a phonograph record titled “59 Anthology” from the Longines-Wittnauer company. Alaska became a state that year too. It was also the year the Russians crashed a rocket on the Moon, and when the Dali Lama fled Tibet.

Pre-game show

I was thinking about Orly Taitz’ case to be decided in Mississippi at a telephonic hearing next Wednesday (January 22, 2014) and the articles I might write leading up to it, and I hope an interview with Scott Tepper (one of the defense attorneys) on RC Radio afterwards. It reminded me of pre-game television coverage of a really important sporting event.

Not being a lawyer, it’s hard for me to judge the legal importance of Taitz v. Democrat Party of Mississippi. I would think that the “big game” was Berg v. Obama in 2008, where we saw the birther conspiracy conspiracies presented in their purest form, and opposition by the federal government and then candidate Barack Obama. It established the precedent for such cases being dismissed for lack of standing; nevertheless, the Taitz case has several elements to make it interesting:

  • The first case defended by a fully-trained Obot
  • Reluctant plaintiffs, one evening requesting sanctions against Taitz for dragging her into it
  • Civil racketeering charges (RICO)
  • A wide range of defendants: a state political party, political defendants, federal defendants and Hawaii defendants (one not deceased)
  • A long paper trail (approaching 100 entries in the docket)
  • A real evidentiary-quality document, a Hawaii verification of the president’s birth certificate in the hands of the Court
  • The threat of defendants demanding sanctions, possibly amounting to 6 figures


I’ve laid in a big supply of popcorn.

The birther contribution to American jurisprudence

Dealing with frivolous litigation, whether filed by a seasoned attorney or a novice pro se litigant, is a bit like wrangling cats.

Robert J. Davis

Where's the Birth Certificate? billboardWhile one doesn’t usually combine “birther” and “contribution” in the same sentence, the birther phenomenon has left its mark on the US justice system through educational examples, black letter law, and a bit of humor to spice up otherwise dull legal briefs. This article details ways in which the birthers in general, and Orly Taitz in particular, have contributed to the law.

A good example of bad behavior

I don’t know whether they teach this at the William Howard Taft online law school, but there are certain standard reference works that attorneys rely on to inform their practice and to find the citations that they need to make legal arguments. One source is the Practicing Law Institute whose mission is:

To enhance the professionalism of attorneys and other qualified persons by providing, in a cost effective manner, the highest quality and most innovative programs, publications and other services to enable them to practice law competently and ethically, and to fulfill pro bono responsibilities.

In 2010, the PLI published a paper by Koral and Price titled: “Trying the Court’s patience instead of the case: common litigation mistakes” to draw the line between “zealous advocacy” and “impermissible or injudicious tactics.” One way of brightening the line is to give examples of what constitutes “impermissible or injudicious tactics” and the birthers, in the person of Orly Taitz, provide a featured example of being on the wrong side of the line. Writing about Rhodes v. MacDonald, where Judge Clay D. Land sanctioned Taitz:

Attorney Orly Taitz provides a notorious recent example of an attorney’s conduct succeeding more at irritating the judge than at advancing the interests of her client. A member of the “birther” movement, which challenges President Obama’s citizenship on the grounds that he had failed to adequately prove that he was born in the United States, Ms. Taitz filed a motion in connection with this litigation on behalf of a Captain in the United States Army to enjoin her deployment to Iraq. District Judge Clay D. Land held that the motion was frivolous, and further found that “Plaintiff’s motion is being presented for the improper purpose of using the federal judiciary as a platform to espouse controversial political beliefs rather than as a legitimate forum for hearing legal claims.”

Taitz was sanctioned for her conduct in the case because, as Judge Land said:

[t]his pattern of conduct reveals that it will be difficult to get counsel’s attention [and so a] significant sanction is necessary to deter such conduct.

The PLI article was written in 2010, before Orly Taitz brought a federal lawsuit against Judge Land. I wonder what the article would say if it were written today!

Black letter law

The Wikipedia article on Precedent says:

gavelIn common law legal systems, a precedent or authority is a principle or rule established in a previous legal case that is either binding on or persuasive for a court or other tribunal when deciding subsequent cases with similar issues or facts.

Black letter law is the body of cases that attorneys and courts look to for established precedent. If you have ever read a birther legal decision that involves dismissal for lack of standing, you will almost invariably see Lujan v. Defenders of Wildlife cited. Once the body of birther lawsuits built, one began to see citations on standing to decided birther cases, notably Hollander v. McCain and Berg v. Obama. More recently we see extensive citations to Ankeny v. Governor of Indiana alongside US v. Wong on the question of whether Obama is a natural born citizen and Robinson v. Bowen on ripeness of election challenges.

The precedential value of birther lawsuits now extends beyond the backwaters of birtherism; they have become mainstream precedent in several areas of the law and now appear in the standard reference resources used by attorneys.

Continue Reading →


Donald Trump told the NBC Today Show’s Meridith Vieira this morning that  he has people on the ground in Hawaii looking into Obama’s origins and that we wouldn’t believe what they are finding out. Apparently his team has been digging deeply into old birther blogs because that was what Trump was repeating today.

I wrote an article in 2010 titled “We all came out of Berg’s suit” about how much of the birther story comes from the old Berg lawsuit from 2008, which itself came largely from Internet blogs. Berg’s theories still form the backbone of the birther story. Of course Berg, being the the instigator of the first lawsuit Barack Obama had to defend, couldn’t make the $2 million dollar legal fee claim (that had to wait until the number of birther lawsuits mounted, even though Obama wasn’t even named in most of them, and Obama actually defended himself in only 3, and none of those even came to trial).

Let’s look at what Trump said this morning (see NBC closed caption transcript).

  1. Obama doesn’t have a birth certificate (“he doesn’t have one”). Trump later softened this to a growing doubt that he has one and then “I hope he does.”
  2. “He has what’s called certificate of live birth [sic] that’s something that’s easy to get…It’s not the equivalent of a birth certificate, not even close.”
  3. “I read it [Obama’s Certification of Live Birth] very carefully. It doesn’t have a serial number , doesn’t have a signature. There’s not even a signature.”
  4. Obama’s grandmother says she was there when Barack Obama was born in Kenya.
  5. Obama has spent $2 million in legal fees “trying to get away from this issue.”

I think most of this is covered pretty thoroughly on this blog. I am considering an update on Obama’s legal fees since this seems to be so central to just about every birther narrative, and the rumored expense keeps going up.

Read more:



A question for Phil Berg

Philip Berg

I left this question over at Phil Berg’s web site,, in November of 2009. I don’t know whether I didn’t see the answer at the time, or what. In any case an answer of sorts did appear. Here’s the question:

A particular point of interest to me regarding the Berg v. Obama lawsuit is the difference between the original complaint and the first amended complaint and how that came to happen.

After the original filing of the suit, quite a bit of media attention was focused on Phil Berg and his lawsuit, but I don’t think it caught hold in the minds of many folk until the amended complaint and the introduction of the affidavit by “Kweli Shuhubia” [not his real name] and the abbreviated version of the “grandmother tape”. Continue Reading →

We all came out of Berg’s suit

There is a very influential work in Russian literature by Nikolai Gogol titled (in translation) The Overcoat. The importance of this work and its effect on subsequent writers was memorialized by a famous quotation from Fyodor Dostoyevsky: “We all come out from Gogol’s ‘Overcoat’.”

Philip Berg

In the same vein, virtually all of the present birther mythology is found in the original Berg v Obama lawsuit from 2008 and all the birther lawsuits are little more than warmed over Philip J. Berg. (Berg also believed that the US Government was responsible for blowing up the Twin Towers on 9/11. Berg appears to be a credulous person with a conspiracy theory mindset.) Berg’s lawsuit in some small way legitimized the conspiracy theories in the popular mind.

Here are some of the ideas that came from Berg v. Obama in his Original C0mplaint:

  1. The threat of civil disobedience should an ineligible person become the Democratic nominee for President.
  2. The claim that Obama has “refused to prove” his eligibility. (Note: this is after Obama had published his birth certificate online).
  3. Berg had a copy of the Obama divorce papers back in August of 2008 while others claimed to have “first discovered it” later. Continue Reading →