Keyes v. Bowen – Motion to Quash

Keyes v. Obama

Keyes v. Obama

A motion to quash subpoenas in Keyes v. Obama has been filed by respondent’s legal team. You’ve seen it talked about. You’ve seen it characterized. Now you can see IT.

Here is the Keyes v. Bowen motion to Quash

Memorandum of Points and Authorities


The mention of Monetary Sanctions (not sought) is found in the Declaration.

[Addition: The motion to quash was granted, and the lawsuit dismissed.]

About Dr. Conspiracy

I'm not a real doctor, but I have a master's degree.
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30 Responses to Keyes v. Bowen – Motion to Quash

  1. bogus info says:

    Dr. C.,

    I can’t open it. PDF. Darn!

  2. It’s an image of a fax, so it won’t convert nicely to HTML. High points of motion made on behalf of Obama, Biden and California Electors:

    1. The defendant was not notified in advance of the serving of the subpoena (which is required in the case of a request for personal records). This makes the subpoena invalid.
    2. The student records could have no possible bearing on the case (which dealt with whether the California Secretary of State and the California electors had a duty to verify Obama’s eligibility).
    3. The whole thing is moot, since the Secretary of State already certified the election and the electors already voted.
    4. There is nothing about anybody sanctioning anybody. The part about monetary sanctions (not actually requested) was a “threat” in an email included in the Declaration document.

    [Note: some comments in reply to this comment have been deleted, as they assume the information preceding which has now been corrected.]

  3. Well it’s not in the motion. The sanction was supposedly said by some body to somebody reported by somebody copied by somebody and appearing on somebody’s web site. It doesn’t happen until it happens.

  4. James says:

    Dr. Conspiracy,

    Are you a lawyer?

    You are commenting on legal matters and rules of evidence (certification vs certificate) etc.

  5. Expelliarmus says:

    Some context: Under California procedural rule, lawyers are required to make “good faith” efforts to informally resolve disagreements concerning discovery before bringing formal motions in court. So it is customary for a lawyer to contact opposing counsel and ask for whatever relief they want before making a formal motion. The failure to do so could itself be grounds for the court to impose sanctions or deny a motion.

    My guess: Obama’s lawyer called and asked that the subpena for records be withdrawn,, pointing out the problems later raised in the motion. The details of that call are probably set out in a Declaration accompanying the motion.

  6. A. Kibitzer says:

    I don’t know about Dr. C, but I am a practicing attorney, and Dr. C’s commentary is spot-on.

  7. James, for some reason, reading your question brought to mind an image of the web site where the management has an attitude about who is allowed to say what. On this web site, though, folks can say pretty much what they want.

    I do comment on things related to the law, although what I am saying is more the result of logical conclusion than it is on legal theory. While there are at least 4 lawyers who frequent the discussions here, I am not one of them, and I never offer legal advice except to lawyers (some of them seem like they could use some help about now).

    My full academic qualifications are listed here:

  8. GeorgetownJD says:

    I am an attorney with 24 years of practice, and I agree that Dr. C is spot on.

    He’s commenting on legal issues, not engaging in performing legal services, so a law degree is not required.

  9. Expelliarmus says:

    In fairness, James might have been asking that question not as an attack but simply as a way for a lay person to sort things out. That is, to a lay person, a statement coming from a lawyer about law might have more weight than a statement coming from a blogger without a legal education.

    To James: I’d encourage you to draw your own conclusions by reading the impressive amount of documentation assembled here. I am one of the contributors who happens to have legal training (former lawyer, now retired) – but please don’t take my word for it. I think it is quite common for bloggers to misrepresent their credentials.

    But it isn’t all that difficult to look at documentation provided and draw your own conclusions. Most lawyers rely on the legwork of investigators and paralegals, and I think that is what Dr. Conspiracy has done — he has done an excellent job of chasing down all of the details that lie behind the allegations and accusations that form the basis of blog chatter and the various court filings.

    I’d suggest that you use the presence of lawyers / ex-lawyers / wannabe lawyers on this board simply as an aide to understanding the meaning of any document or pleading that doesn’t make sense to you. That is, you might ask, what does “interpleader” mean and a real lawyer ought to be able to give you a fairly simple explanation.

    Keep in mind that in the most important cases in our system of law, we still rely on lay people in juries to decide the outcome — the lawyers job in a trial includes helping to explain the law to the jury, but we still have faith that most people have the critical thinking skills needed to come to appropriate decisions even in complex cases. The only thing that lawyers and judges expect and require of jurors is to come in with an open mind.

  10. “He’s commenting on legal issues, not engaging in performing legal services, so a law degree is not required.”

    Abstract discussion is not the only species of communication which the Constitution protects; the First Amendment also protects vigorous advocacy

    NAACP v. Button, 371 U.S. 415 (1963)

    It’s amazing the stuff I run across doing this blog (and I know this case is not applicable).

  11. I pondered quite a spell over where James was coming from.

  12. Expelliarmus says:

    I understand the dilemma, but I think its best to assume good faith from a poster, given that he made only an objective statement and was not disrespectful. (If not, then we will know from subsequent posts.)

    Also, I’d point out that the generally high quality of your analysis might lead reasonable people to assume that you have a legal background. Certainly you seem far better qualified to render a legal opinion than Taitz, Berg, or Donofrio, who all claim to be or have been lawyers, but who seem hard-pressed to even express themselves coherently in legal pleadings, as well as totally ignorant of basic requirements of legal procedure.

  13. Expelliarmus says:

    I’d point out that for those of us who are lawyers, it would be considered unethical in most states for us to purport to dispense legal advice on a blog — and inappropriate to do so anonymously. However, we also share the same 1st Amendment right to comment, discuss, argue, etc.

  14. Hitandrun says:

    Would you be willing to engage Amb. Keyes in an internet conversation to be published concurrently on both his and your sites?

    On the ‘Decline and Fall’ front here’s a recent essay by Mr Keyes on mobocracy in action, titled “Obama: Civil War Disguised as Politics?”:


  15. If he wants to discuss Barack Obama’s constitutional eligibility to be president, I’m game, but that is the only topic I would agree to.

  16. mimi says:

    Don’t do it doc. He will just muddy the issues, rather than use logic.:

    “When asked to answer charges of carpetbagging in the context of his earlier criticism of Hillary Clinton, he called her campaign “pure and planned selfish ambition”, but stated that in his case he felt a moral obligation to run after being asked to by the state GOP. ”

    This from his blog today:
    “I have an ominous feeling about the years ahead. With Obama, we have crossed the line that separates civil politics from civil war disguised as politics. Occupying the White House is a man known for his support and association with people (like leftist Kenyan politician Raila Amollo Odinga) for whom that line appears never to have existed…”

    “Alan Keyes blamed the media and fellow Republicans on Thursday for his lopsided loss to Democrat Barack Obama in the U.S. Senate race in Illinois. Keyes also said he did not congratulate Obama after the race was called, a tradition among politicians, because doing so would have been a “false gesture” because he believes Obama’s views on issues like abortion are wicked.”

    “What started it all was another post-debate pressroom session, this after the GOP Dartmouth debate on Oct. 28. The fiery Keyes, mad that the members of the press assembled there weren’t asking him any questions, burst into a string of invective at our apparent snub.

    “The people of this country have gotten over their racial sickness — I don’t know that you folks have,” Keyes said. “I think that merit means nothing to you because you can’t look past race. And I think I’m deadly sick of it.” It was a bizarre eruption, odder still because our reticence had nothing to do with his race, and everything to do with the fact that we were all busy writing our stories.

    Even if we hadn’t all been so busy, though, Keyes is at best a fringe candidate — he’s more than $80,000 in debt, an asterisk in the polls and couldn’t even get elected to statewide office in Maryland.”

    He doesn’t deal in reality.

  17. mimi says:

    Doc, please delete my prior comment (too long), as well as this one. Many thanks.

  18. bogus info says:

    They are already making excuses for Berg at OC.

    “Re: Discussion of Hollister v. Soetoro
    by Philadelphia Roof Doctor on Today, 02:01”

    “I have been told that it was, in fact, filed.”

    “Furthermore, just to set things straight, Berg’s amended complaint did, in fact, supply new information and, by the court rules, should have counted as Berg’s response to the motion to dismiss. Either the Judge (or his clerk) did not actually read the amended complaint before stating it was moot or, the Judge was simply abusing his judicial powers.”

    “Rather than argue that point (or using it as the basis for an appeal) Berg decided to file another (unnecessary) response.”

  19. bogus info says:

    Here is a interesting article/opinion on Alan Keyes:
    Alan Keyes Brings the Crazy Again
    Posted on: January 23, 2009 9:16 AM, by Ed Brayton

  20. bogus info says:

    This is a comment on OC. This type of mentality just blows my mind:

    “Ya know, this is almost slap-stick ridiculous. WHY would these attorneys FAIL to comply with SIMPLE procedural rules that most likely they ALREADY KNOW (like the back-of-their-hand) b/c of all the other cases they’ve tried that require following these same rules? Answer: The lawyers are, IMO, INTENTIONALLY failing to obey these rules BECAUSE their objective is NOT to get the case to court NOR is it to GET those records from Oxcidental. Why? IMO, the FED ALREADY HAS ALL of BHO’s records and has probably had them for MANY years.”

    “So, some of these lawsuits are intended, instead, to build the case that OBAMA HAS BEEN ASKED numerous times to PRODUCE simple, relevant records that can prove he’s ELIGIBLE to BE the POTUS and he now is developing a PATTERN of obstruction. OBVIOUSLY, Obama did NOT need to FILE SUIT to stop enforcement of the subpoena. He CHOSE to do that. He COULD have just let them get the records. IF the records PROVE Obama attended Occidental as BHO, US citizen — and not Soeotoro, Indonesian citizne — then it’s in OBAMA’S BEST interest to just LET the truth come out. THEN that will end these cases, or at least go a long way toward ending them.”

  21. Expelliarmus, you are exactly right.

    Additional court documents (including the Declaration) have been added to the links in the main article.

  22. The comment correctly observes the inconsistency of what is filed and when with actually getting the case heard. It just draws the wrong conclusion. If Barack Obama is not eligible and the FED (who ever that is) knows it, why would they try to tack on an inconsequential “obstruction” charge?

  23. Expelliarmus says:

    Legal comment here:

    Federal Rules of Civil Procedure:

    Rule 15. Amended and Supplemental Pleadings

    (a) Amendments Before Trial.

    (1) Amending as a Matter of Course.

    A party may amend its pleading once as a matter of course:

    (A) before being served with a responsive pleading; or

    (B) within 20 days after serving the pleading if a responsive pleading is not allowed and the action is not yet on the trial calendar.

    (2) Other Amendments.

    In all other cases, a party may amend its pleading only with the opposing party’s written consent or the court’s leave. The court should freely give leave when justice so requires.

    Source: (bold face in original; italics added here for emphasis)

    What does this mean? It means that Berg was way past the time when he was entitled to file an amended pleading — and his first amended pleading required either the other side’s written consent or leave of court.

    So despite the whining, Berg filed an improper document when his response to the Rule 12(b) Motion to Dismiss was due. The Judge could properly have simply ordered the entire case dismissed, rather than graciously extending Berg’s deadline by several days.

  24. bogus info says:

    I think the commentor means the FBI. This commentor states that the FBI has seen all of Obama’s records and has had them for years. Does this commentor really think that if Obama wasn’t born in Hawaii and a NBC that Obama would be President today?????

  25. Expelliarmus says:

    I’d add that under the local rules for the DC Circuit, an amended complaint is deemed to be filed “on the date on which the order granting the motion is entered.” So basically, Berg’s submission of the amended complaint without first obtaining a court order is treated by the local rules as if it had never happened (at least not yet).

    See LCvR 7 (i) and 15.1
    Rules can be downloaded here: (warning: this is a PDF file with 215 pages)

    Obviously, if Berg had filed a motion for leave to amend his complaint, then that motion would have had to state how and why his amended complaint was different than the first.

  26. A. Kibitzer says:

    I wouldn’t get so hung up on form. If the Amended complaint were amended in such a way that the defects asserted in the motion to dismiss were no longer present, or otherwise alleged facts sufficient to overcome the motion to dismiss, then the title of the paper filed is not as important as the substance of it. That’s Berg’s position. In the abstract, it’s not a procedurally wrong position.

    In this reality, and as the judge pointed out, his Amended Complaint cannot be understood as responsive to the motion to dismiss.

    I feel sorry for the clerk who actually figured out what, if anything, substantially differed from the original complaint, and how such differences could credibly be believed to address the motion to dismiss.

  27. mimi says:

    The changes are shown over at the polijab.

    It’s much too long for this comment block. Look for this comment:

    Re: Hollister – Smackdown #2
    by Tes Mon Feb 16, 2009 10:20 am

    (page 7 of comments)

    They are also blaming the judge again.

    “Linda Starr wrote:
    It was filed electronically Friday night before midnight. ”

    Interesting – it’s not yet showing up on the docket ….

    “….The judge failed to notify them and thanks to some trolls Lisa found out in time to act. Apparently the judge sent them notification by snail mail, which they wouldn’t have received until Tuesday when mail delivery resumes. This judge is playing fast and loose with the rules and really deserves some form of punishment. …”

    “Blatently false.The judge posted the 2/11 order on the Hollister docket on 2/11. DC cases are managed via the electronic docket (See DC Local Rule LCvR 5.4). Thus, the Judge’s posting of his order was sufficient to provide Berg with notice. Attorneys in cases using PACER/ECF are obligated to check the docket.”


    So… Berg trolls the polijab to see what he has to do?

  28. bogus info says:

    GARY G. KREEP (SBN 066482)
    932 “D” Street, Suite 2
    Ramona, California 92065

    Attorneys for Petitioners


    I, GARY G. KREEP, hereby declare as follows:

    1. That I am the attorney for Ambassador Dr. Alan Keyes; Dr. Wiley S. Drake, ST., and
    Markham Robinson, herein (hereinafter collectively referred to as “PETITIONERS”), that I am admitted
    to practice before all Courts of this State, and that, if called upon to do so, I could, and would,
    competently testify as follows:

    2. That, on January 15,2009, PETITIONERS served a deposition subpoena for the
    production of business records on both Mr. Obama’s attorneys and on Occidental College; that
    this service was made in error as it was not served first on Mr. Obama’s attorneys at least five
    days prior to the custodian of record, as required by California Code of Civil Procedure
    (hereinafter referred to as “CCP”) § 1985.3(b)(3); that this error occurred because the volunteer
    process server did not serve the deposition subpoena as intended, but, instead, personally served
    the subpoena on the custodian of record on that date; that, otherwise, PETITIONERS would
    have been in compliance with CCP § 1985.3(b)(3); that PETITIONERS acted in good faith,
    however, by providing Occidental College and MR. OBAMA more notice than the twenty days
    statutorily required by CCP § 2020.410(c) to produce the documents requested; and that, even
    though PETITIONERS erred in the serving of the deposition subpoena, there was no injury to
    MR. OBAMA, as additional time was given on the “back end” that more then covered the error.

    3. That MR. OBAMA failed to give written notice in a timely manner, as required,
    of the claimed error, in that CCP § 2025.410(a) provides:

    “Any party served with a deposition notice that does not comply with Article 2
    (commencing with Section 2025.210) waives any error or irregularity unless that
    party promptly serves a written objection specifying that error or irregularity at
    least three calendar days prior to the date for which the deposition is scheduled,
    on the party seeking to take the deposition and any other attorney or party on
    whom the deposition notice was served.”

    4. That MR. OBAMA did not “promptly” serve PETITIONERS with written notice
    of the alleged error and, instead, waited 27 days before giving written notice, only four days
    prior to the date for the production of the documents specified in PETITIONERS’ deposition
    subpoena; and that, although this Motion to Quash was served within the time limits permitted
    to object to an improperly served deposition notice, MR. OBAMA did not give prompt written
    notice of the error as required by CCP § 2025.410(a) and, thus, did not give PETITIONERS a
    meaningful opportunity to correct the error.

    5. That MR. OBAMA’s attorney, Mr. Woocher, was aware of PETITIONERS’
    noncompliance with CCP § 1985.3(b)(3) on January 16,2009, because, on that day Occidental College
    alerted Mr Woocher’s office, informing him that the College had received PETITIONERS’ deposition
    subpoena (Declaration of Frederic D. Woocher in Support of Motion to Quash (“Woocher Decl.”), ^ 2);
    that same day, January 16, 2009, Mr. Woocher received a copy of PETITIONERS’ subpoena by mail
    (Woocher Decl. ^ 3); that, at that time, Mr. Woocher contacted PETITIONERS’ counsel by e-mail and
    requested that PETITIONERS withdraw their subpoena duces tecum until after the hearing scheduled
    for March 13, 2009, because he wanted to “avoid the expense of filing a motion to quash” (Woocher
    Decl. U 3); that Mr. Woocher did not, however, inform PETITIONERS of any error in the procedures
    in any of his correspondence or in any other conversation with the attorneys for PETITIONERS; that
    PETITIONERS did not receive notice of the alleged error until they received MR. OBAMA’s Motion
    to Quash on February 12, 2009; and that, based on my communications, oral and written, with
    Mr. Woocher, I believe that the reason for the requested withdrawal of the subpoena until after the
    March 13, 2009, hearing, was that he was hoping that the matter would be dismissed at said hearing.

    6. That, even though PETITIONERS acknowledge the procedural error in serving the
    deposition subpoena, because of MR. OBAMA’s 27-day delay in giving PETITIONERS the required
    prompt written objection, specifying the error or irregularity, the Court should find that MR. OBAMA
    waived his objection to the error according to CCP § 2025.410(a); and that, therefore, the Court should
    deny MR. OBAMA’s Motion to Quash and order production of the documents requested.

    7. That MR. OBAMA’s objection to PETITIONERS’ discovery request is without merit.

    8. That MR. OBAMA argues that the descriptions of documents sought by PETITIONERS
    are vague and overbroad; that PETITIONERS’ request states that the documents sought consist of
    “Academic and housing records of Barack Hussein Obama, including but not limited to, approximately
    two years from September 1979 to June 1981” (PETITIONERS’ DEPOSITION SUBPOENA FOR
    PRODUCTION OF BUSINESS RECORDS, issued on 1/15/09); and that this request is narrowly
    tailored and seeks documents that are directly relevant to this case.

    9. That this request is not overbroad, as the documents sought are the records of only one
    student in a period of only two years, and not the records of all students who attended Occidental
    College for an undefined period of time; that, in addition, if PETITIONERS’ discovery request was
    made too specific, MR. OBAMA could avoid the production of the relevant documents due to
    PETITIONERS missing the name of a particular document; that, since PETITIONERS do not know the
    exact documents regarding MR. OBAMA that are kept by Occidental College, this discovery request
    is as narrowly limited as possible, so that it is not burdensome for the College to produce.

    10. That, furthermore, MR. OBAMA did not give specific objections to the discovery
    request, and that the CCP § 2031.240(b) requires that:

    “(b) If the responding party objects to the demand for inspection of an item or category
    of item, the response snail do both of the following:

    (1) Identify with particularity any document, tangible thing, or land falling within any
    category of item in the demand to which an objection is being made.
    (2) Set forth clearly the extent of, and the specific ground for, the objection. If an
    objection is based on a claim of privilege, the particular privilege invoked shall be stated.
    If an objection is based on a claim that the information sought is protected work product
    under Chapter 4 (commencing with Section 2018.010), mat claim shall be expressly

    11. That MR. OBAMA neither invoked any claim of privilege in his objection to
    PETITIONERS’ discovery request nor set forth clearly the specific grounds of any objection other than
    to claim that it is vague, overbroad and not reasonably calculated to lead to the discovery of relevant
    evidence; that the objections to PETITIONERS’ discovery request are insufficient according to CCP
    § 2031.240(b) and, therefore, MR. OBAMA’s Motion to Quash discovery should be denied.

    12. That, contrary to the claims of Mr. Woocher in his pleadings, counsel for
    PETITIONERS did attempt lo resolve the underlying issue in a timely manner, that counsel for
    PETITIONERS attempted to obtain a hearing date from the Court prior to the December 15,
    2008, vote of the Presidential Electors in the Electoral College, however, counsel for
    PETITIONERS was informed by the Clerk of Department 31 of the Sacramento County Superior
    Court that the Judge, himself, personally, had set the hearing Ibr March 13, 2009, that no ex
    parte attempts to hold any sort of hearing on the matter prior to December 13,2008, would be
    allowed, and that a fully noticed motion to advance the hearing date would have to be filed,
    according to statutory procedures and local court rules, thereby rendering it impossible for
    PETITIONERS to have a hearing prior to the December 15,2008, date.

    13. That the delays in seeking the Court hearing were necessitated by the fact that
    volunteer and professional process servers had great difficulty serving the Electors due to
    incorrect addresses being provided for a number of them by the Democratic Party of the State
    of California, one of the Presidential Electors being misnamed, and the hostility, threats of
    having process servers arrested, and admitted attempts to avoid service by several of the
    Presidential Electors.

    14. That I am informed and believe and thereon allege, that, for example, one of the
    Presidential Electors told the process server that she “owned” the public street in front of her
    house and was going to have the process server arrested for trespassing on it.

    15. That counsel for PETITIONERS attempted to “meet and confer” with
    Mr. Strumwasser, one of the attorneys for MR. OBAMA, concerning this motion to quash, and
    that he was told in a telephone conversation with Mr. Strumwasser that there would be no
    negotiations on the subject.

    16. That, since the original and the Amended Writ deal with the subject of ascertaining
    whether a candidate for President of the United States is eligible to serve in that office, pursuant
    to the United States Constitution, the information in the College records is relevant, and that,
    from those records, statements as to whether MR. OBAMA is, indeed, a “natural born citizen”
    may be found.

    17. That, even with the Amended Writ, this issue is relevant, as the Amended Writ
    seeks to obtain Orders from this Court requiring the Secretary of State to ascertain said eligibility
    prior to placing a presidential candidate on the ballot in the future.

    18. That, as stated in our previous pleadings herein, former California Secretaries of
    State have taken legal action to remove individuals from the ballot for failure to comply with the
    eligibility requirements to serve as President of the United States, although, in those cases, the
    issue had to do with the “age” requirement, not the “natural bom citizen” requirement.

    19. That, if MR. OBAMA is not constitutionally eligible to serve as President of the
    United Slates, then no act that he takes is, arguably, valid, the laws that he signs would not be
    valid, the protective orders that he signs would be null and void, and every act that he takes
    would be subject to legal challenge, both in Courts of the United States of America, and in
    International Courts, and that, therefore, it is important for the voters to know whether he, or any
    candidate for President in the future, is eligible to serve in that office.

    20. That MR. OBAMA’s actions to block any attempt to inquire into his status as a
    “natural born citizen” raises questions which must be answered in order to avoid a situation
    where, perhaps several years in the future, it is discovered that he was not eligible to serve as
    President of the United States, and, therefore, all of his acts would be null and void, and that the
    resulting chaos could lead to a constitutional crisis, immobilizing the United States.
    I declare under penalty of perjury under the laws of the State of California that the foregoing is
    true and correct. Executed this 25th day of February, 2009, at Ramona, California.

    Gary G. Kreep, Esq.
    Attorneys for Petitioners

    Somebody who is an attorney explain this Declaration.

  29. I can’t speak to all the rules of procedure being bandied about, but the bottom line is that whether Barack Obama is or is not eligible to be president has no bearing on what the duty of the Electors and the California secretary of state are.

    Say a box either has an apple or an orange in it. You say I should have looked in the box and I say that I don’t have to look in the box. Our disagreement can’t be resolved by knowing what’s in the box.

  30. Hitandrun says:


    Your first sentence has it precisely backwards. Care to rephrase?


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