An argument in the form of a question
Central to the birther position is a question that is some variation of:
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.
It seems almost as if the birthers are avoiding this post so they can keep parroting the lie unencumbered.
Squawk. Squawk. Pollyanna!
Looks like you’re right— cw has changed the claim.
Why has Obama, since taking the White House, used Justice Department Attorneys, at taxpayer expense,to avoid presenting a legitimate birth certificate and college records?”…Citizen Wells and millions of concerned Americans
Let’s wait and see if trump parrots this new line, then together we can speculate about his researchers in hi.
To be comprehensive I think this post should point out one example where Obama did move to quash a subpoena for records relating to him. I seem to remember it was in the case in Sacramento (California) Superior Court. The main defendant was Debra Bowen (California Secretary of State) and the claim was that Bowen should have “vetted” (a favorite birther term) Obama before allowing him on the Presidential ballot in California. Anyway, I believe that plaintiffs served a subpoena on Occidental College (also in California) to get Obama’s college records. Obama’s attorneys successfully moved to quash the subpoena.
This is from the Keyes v Bowen case mentioned in the article. Kreep was trying to press the subpoena while the motion to dismiss was pending. The motion was filed by pro bono attorney Woocher, so presumably Obama didn’t spend any money on this motion. I never considered this to be about hiding records, but just stopping the case cold and reducing political fallout. You point is well taken, though. That’s what comments are for. I have updated the article.
That motion was discussed in my article:
I sent the following email to Sen Sam Slom R
your comment referring to Obama, “why would anyone spend millions of
dollars in legal fees, particularly someone in public office,
particularly someone in the highest public office, to not make that
information public?” is totally false, as I am from Hawaii
I resent such ignorance, you should be ashamed of yourself. If you don’t
like Obama’s policies then vote and support some one else, to publicize
these false Obama rumors is an insult to all Hawaiians.
(formerly of Manoa Valley)
His reply: to me
Thanks for your email. What is “totally false?” You should be ashamed of yourself for not demanding full disclosure of basic information from ALL public officials. This has nothing to do with “policies.”
Aloha, Sam Slom
I replied to him:
What is “totally false?” you ask, OK, your comment “why would anyone spend millions of dollars in legal fees,” is totally false, you cannot show any proof of your silly statement, that is a false silly birther talking point. Of the 70 some court case, Obama won all, , most had costs awarded, the losers paid. Are you a liar or just fooled by birther crap. If you wish to oppose Obama on policy, fine, I can respect that, but your birther lie reveals more about you than it does about Obama. Be ashamed!
Hating Obama causes brain damage!
The silliness of your “why would anyone spend millions..” comment is parodied by the comment ” “Obama has spent $81 Berjillion dollars on legal fees”
Check some real proof here:
hey fat cowpoke suck my big fat obama
Rich, you left your real surname in the comment – you might want to redact (unless you’ve left it in there purposefully).
His reply completely failed to answer the “millions dollars spent is totally false” question you posed. Is this a bit of a red herring?
left it in there purposefully
Speaking of kreep. Do you recall occidental’s response when faced with this supeona?
Later on April 1 2009, ap reported that oc released info that bs before he was urged to rock barrack by a classmate attended on a Fulbright for foreign students, but it was quickly turned into a fools joke on us birthers and otherwise scrubbed. Darn those ap reporters really got us there.
Ps I favor a paper/straw folder fedora to shield the cro magnon slope of my brow, although it’s difficult to shape without opposable thumbs.
OK, cool. Just concerned 🙂
Roll Call had an article last week on the continuing legal fees paid out by the Obama campaign. Buried late in the article it revealed that the McCain and Clinton campaigns also have had continuing legal expenses. On a separate page, they published a table with numbers. Obama’s spending has been entirely in line with McCain’s when one assumes that increased receipts and expenses would require greater legal fees to ensure compliance. Obama raised a little more than twice what McCain raised, spent a little more than twice what McCain spent and has had a little more than twice the legal fees McCain has had.
In order for Obama’s campaign to have spent “millions” (out of the $3.5 million in legal expenses they’ve spent since 2007) they would have to have had legal geniuses who could ensure legal compliance for a fraction of what McCain’s team needed.
Since there is no way to prove it, this is pure speculation, but I always assumed some of the Perkins Coie money went to keeping Obama out of the Blagojevich trial. Perkins Coie has a rather large office in Chicago. I also ran across a few articles (NY Times) that were using a Perkins Coie partner as a legal consultant for their Blago trial articles. Seems like a smart way to manage the press coverage of one of their most high profile clients.
Occidental’s response was to notify Obama’s attorneys about the subpoena, which was an entirely appropriate response.
When an individual’s personal records are subpoenaed for a lawsuit, California law requires that a copy of the subpoena be served upon the person whose records are being subpoenaed before the subpoena is served upon the custodian of records. Kreep failed to do that, and instead mailed a copy of the subpoena to Obama on the same day it was served upon Occidental.
Occidental was aware of the fact that Obama had not been timely served with a copy of the subpoena, so the college properly alerted Obama’s attorneys about it. Obama’s attorneys then tried to convince Kreep to withdraw the subpoena. Kreep refused to withdraw it, so Obama’s attorneys filed a motion to quash the subpoena.
The subpoena was defective because Kreep failed to comply with California’s rules AND the subpoena was premature because a Motion to Dismiss was pending.
Birther 1: I wonder: How much has Obama spent defending against all the eligibility suits?
Birther 2: Well, there were dozens, so I’d guess a lot, like $100,000.
B1: A hundred thousand? I wouldn’t say that’s really a lot, not at the rates lawyers charge. A lot would be like a million.
B2: You’d say a million? O.K. I was just guessing. Wow, $1,000,000.
B1: Oh, I was guessing too; it might not be that much. On the other hand, for all I know it could even be more, like $2,000,000.
B2: We’re talking about big money. I should start a thread about this on the forum.
B1: Good idea. I might blog about it too. Obama spent up to $2,000,000 to hide his birth certificate. People are going to want to hear about this.
One week later:
B1: So I blogged about Obama’s legal fees, like we were talking, and you wouldn’t believe the response.
B2: I might. I’ve been talking it up in the forum, and yeah, this is real. Some of the guys did some research with Google, and you know what they found? The same $2,000,000 estimate we had calculated. Some of them started blogging about it too.
B1: Comments on my blog say the same thing. Some linked other blogs that report the $2,000,000 figure.
B2: Did you see the article on this in World Net Daily yesterday? According to WND, there are reports that Obama spent an estimated $2,000,000.
B1: On WND? That’s one of the few news outlets I trust.
B2: I know. It sounded like a lot, but now we have confirmation.
B1: It actually doesn’t seem like all that much to me anymore. Did you know that Obama’s trip to India cost an estimated, reported, and confirmed $200,000,000 per day?
Brilliant – truly brilliant.
Reminds me of a story of Robert Heinlien’s I read a long, long time ago. He tells a story about a man who started a rumor that they had struck oil in hell. Pretty soon everybody has left for hell, to get in on the boom. The man who started the rumor watches them all go, then scratches his head and says to himself that there just might be something in it, after all. So he left for hell, too.