Improbabilities Theme: Natural Born Citizens

Given that President Obama released his long form birth certificate today, it seems like a decent time to kick off a series of articles I've been sitting on related to the improbabilities of life that sometimes come to fruition.   Everyone considers EEStor a long shot and an improbability.  But sometimes improbabilities becomes realities.  These articles will offer no new insight to EEStor per se so don't read them if that's what you are seeking.  

Long Form Birth Certificate Released Today Confirms Obama Born in Hawaii

Although born in Hawaii a legal US citizen, President Barack Obama is not legally authorized (by the Constitution) to hold the office of President of the United States.  We know this by way of an astute introduction from a member of a punk rock band in New Jersey who happens to be a formerly retired attorney, accomplished chess & poker player, fledgling screenwriter and blogger and an almost competitor in a British Open, named Leo Donofrio.  This is his improbable story. 

Note: Leo Donofrio contacted me with corrections to the original article which I have bolded in black below.

In the fall of 2008, Donofrio was becoming interested in the "birther" movement which stems from the conspiracy theory that President Obama was not born in the United States. To Donofrio, this was a silly movement centered around a non-issue and obviously very politically motivated. But also on legal grounds, the cases lacked a critical element known as 'standing' which without getting too technical means that a lawsuit can't be brought forward unless an individual can prove they were harmed over and against everyone else.  He was right as many of those cases were dismissed.  But then Donofrio stumbled upon an article in the Michigan Law Review written by Dr. Daniel Tokaji, a law professor at Ohio State which outlined a route around the standing problems via state courts & ballot rules.



What that article revealed to Donofrio was that Presidential candidates John McCain and Barak Obama both appeared to not meet the constitutional requirements for the US Presidency which are detailed in Article 2, Section 1 of the US Constitution:

No person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty-five Years, and been fourteen Years a Resident within the United States.

The ensuing legal oddessy that ultimately resulted in Barak Obama taking office originated from the distinction between a 'natural born Citizen' and one who was 'a Citizen of the United States at the time of the Adoption of this Constitution.'  The framers were saying there are two groups of people who were eligible to be President: anyone alive during the constitution (namely a gaggle of British citizens in the process of rebelling from Great Britain) and anyone not alive during the constitution's inception who was/is a 'natural born citizen.'   The debate about what is the definition of a ' natural born citizen' persists to this day & focuses heavily around a blog created by Donofrio found here.  In a nutshell, Donofrio and others believe (with the support of evidence compelling to me at least) that the phrase means an individual born on US soil to parents who are both US citizens.  Others believe the phrase means less than this and equal to whatever Barak Obama's citizenship is based upon.

What you probably don't know today is that Donofrio almost caused the 2008 election to be stopped in its tracks, divested of all 3 of it's leading candidates & then set on an unparalleled path to election chaos the end result of which no one wants to complemplate.  He did this by suing the Secretary of State in New Jersey, Nina Wells.  Why did he do this?  Because he called up her office and asked an innocent question, "What was done to certify the eligibility of the candidates on the Presidential ballot?" The answer was a shocking admission of truth, "nothing" from a member of Wells' staff.  In New Jersey, a citizen can sue the state for non-delivery of services manifested in the legal code.  Donofrio, through motives which have never become clear unless you believe in his profound reespect for the US constitution, proceeded to sue creating Donofrio v. Wells.  Up to this point, everything had been a rather routine, mechanical series of events leading to a lawsuit which no doubt gets the blood of attorneys flowing but for the rest of us is like a dry turkey sandwich.  But like a gift to conspiracy theorists around the world,  Donofrio's blog with it's intense focus on the details of his mission brought to life a story which I believe will one day be a movie in its own right.  You be the judge.

As you may have already imagined, Donofrio encountered some challenging human behavior in bringing his case before the courts.  In New Jersey, Donofrio had a run in with a law clerk who Donofrio claims instructed him about how to file his case as a motion, a no-no Donofrio later brought before an ethics review board.  Donofrio kept his cool, got the case filed and then....in his own words:

"In the history of dealing with the courts, I've never seen what happens next.  They tell me 5 days later, on the Thursday after the election that the judge has denied my motion. Not only that, I have to take back the $200 I spent to file the case. I said, I ain't taking nothing back.  But they mailed it to me any way and tried to make it look like I never filed a motion for summary judgement.  Even though I got a stamped copy from the chambers which they deny exist.  THEN! They deny my complaint because it was improper because it was filed as a motion. When my case went to the Surpreme Court, the computer docket in New Jersey made it look like I was procedurally in error. And I have no idea to this day if that's why the Supreme Court didn't take it." 

To say Donofrio was a bit spooked by this turn of events is putting it mildly. After all, he was challenging an election which everyone everywhere knew was about to be won by Barak Obama.
On the Thursday before the Presidential election, the New Jersey Appellate Division rejected Donofrio's case. The next day, Friday before the election it was denied by the New Jersey Supreme Court.  This allowed Donofrio to file the case the Monday before the election with the United States Supreme Court. On his blog, Donofrio documented traveling to DC and then sneaking through the streets on a tourist bus which he ejected from near the Supreme Court to file his paperwork (thus reducing the risk of accidentally falling off a metro platform or into a busy street of traffic or the Potomac river with a pair of cement shoes).

What happened from that point forward?  More of the same.  Leo Donofrio:

"I went to the Supreme Court on November 3rd.  By the rules, since I was from New Jersey, my case had to go to Justice Souter first. I was asking the court to stop the election. According to the rule, when you are dealing with an emergency stay, the papers are supposed to go right to the judge it is assigned to. I was assured from the law clerk that the Judge would get it right away. The the rule requires that judge to notify me by appropriately speedy means of the disposition of the emergency application. And then I get to choose which judge it goes to next. So I was in Washington DC and I was waiting for their decision before the election and I was going to bring it right to Justice Clarence Thomas. I don't hear anything from the Supreme Court until November 6! When I call up, I'm informed by the law clerk that he never gave it to Judge Souter at all. This is the[SCOTUS] stay clerk Danny Bickell. He informs me that he never gave it to Justice Souter. ...that he ruled that it was improper on his own. He decided he was gonna act like a judge and deny my motion without ever showing it to a judge.   Ok Ok, I played it very calm with him there. I told him you just have to put it on the docket anyway because I have a stamped copy showing November 3rd. So he says, yeah, we're sending you out a letter blah blah blah. And apparently, they made the mistake of putting it on the docket on November 6, three days after the election and Justice Souter signed it denying the application on November 6. The problem was I was able to prove I spoke to that clerk on November 3 and I had a stamped copy of November 3rd, filed before the election. As soon as he finally put it on the docket, I did some radio interviews and showed everybody that it was out there.  And then I went berserk and I called the guy back and asked him what happened here?  You guys had this on November 3rd. How could Justice Souter sign this on November 6 and you have it on the docket for November 6. How is that even possible when you had it on the 3rd? I threatened all kinds of legal ramifications and eventually he changed the docket to November 3rd. We have screenshots of the docket showing both November 6 backdating it to November 3rd.  The point of the matter is they tried to railroad me so I couldnt get it to another justice before the election.  They knew that this was going to be a big problem for Obama and that as soon as people got wind of this lawsuit and that it had nothing to do with the place of birth. There was an instant phenomonon for the issue. And I think what happened is they would rather have it look like it was a political thing that was filed after the election and after the results were known.  And it was very important to me and I actually got the Supreme Court to strike their docket entry and file a correct one to show the case was docketed on November 3rd, the day before the election. "

As Donofrio indicates, the Supreme Court did nothing on November 3, prior to the election. Then the election occurred the next day, November 4 & of course, Barak Obama won.  This fact combined with Donofrio's credible case created an election law armageddon that no Supreme Court Justice wanted to touch for very obvious reasons.  It made Bush v. Gore seem like child's play relatively speaking since at least in that case, the end of the election was never fully reached.  The Supreme Court must have been shaking in its boots.  What sort of outcome could they have directed given that the election had already occurred?  The thought of riots & mass chaos must have crossed a mind or two.  Accordingly, the Supreme Court quietly decided not to hear Donofrio's case.  Was there any fallout from this?

As Donofrio tells it, Justice Souter may not have been playing completely fair with this case. If true, the irony may have lead to Souter's early retirement.  Consider this.  In 2000, author Jeffrey Toobin wrote that Souter was deeply impacted by the apparent political (read non-judicial) actions of his colleagues on the Court in regard to handing the election victory to Bush over Gore. Souter considered retiring on the spot but close friends urged him not to give in to defeat.  Although it's disputed, Toobin says the Bush v Gore case even brought Souter to tears.  It is well known that Souter hated DC and politics in general preferring a quiet life in devotion to the law.  But when Donofrio's case came knocking on his door, what happened on those days between November 3 and November 6 2008?  Did an un-resistable legal temptation seize Souter's soul causing him to go into complete legal and emotional paralysis, the lack of planning of which may be apparent in the docketing date switcharoo Donofrio and his cadre documented?  We may never know. The case was supposed to be considered on November 3rd according to the rules but the answer that came back on November 6 was clumsily delivered.

Are there any clues about what may have happened during this time?  If video recorded congressional testimony of a Supreme Court Justice can be believed, some evasion of duty may have occurred.
In a dialogue between Justice Clarence Thomas and Rep. Jose Serrano in the Spring of 2010, the topic of whether Puerto Ricans can be President emerged as a sidebar to the question of whether persons who were not previously judges can be Supreme Court Judges, a topic important at the time in relation to   Supreme Court nominee Elena Kagan. In the quick exchange, Justice Thomas appears to indicate that the Supreme Court "has been evading" the question of Presidential eligibility.   What question is he talking about?

As it turns out, in December 2008, Justice Thomas actually resurrected Donofrio's case meaning that he passed it out to the entire Supreme Court for consideration. The court dismissed the case without comment in all likelihood for the very reasons I laid out above--it created an unprecedented legal hot potato not even our Supreme Court wanted to touch.  It is fair to conclude that this is the question of eligibility Thomas is referring to.  The same question was raised in a similar case a few days later and was dismissed in a similar fashion.  To date, the issue of whether or not Obama was born in Hawaii aka the "birther" argument has been blocked in the lower courts.  You can't evade what has never been on the table.

At this point, hopefully, you are wondering what is the difference between Donofrio's case and that of the crazies, including now Donald Trump, who allege Obama was not born in Hawaii?  Donofrio believes the birthers are wrong & that Obama was born in Hawaii.  Donofrio contends that Obama, because he was born to a father with British Citizenship also received said British citizenship at birth.  So even though he was born in the US, his dual citizenship prevents him from being a natural born citizen.  In the case of John McCain, his ineligibility stems from his birth having taken place in Panama in a hospital outside of a US Military base....which resulted in McCain winning Panamanian citizenship, ie, dual citizenship similar to Obama...and thus equally ineligible.  The third candidate that year was Roger Colero, born in Nicaragua. In all of this, no one has claimed each of these 3 aren't US Citizens. All that is being claimed is that they aren't 'natural born citizens' as distinguished in the passage from the constitution above.   I've been purposely trying to avoid explaining the details surround the issue because I hope you turn to Donofrio's blog to explore the issue further.

You may wonder what does President Barak Obama think about Donofrio's case.  Curiously, although the media has tracked the birther cause meticulously, not a single US reporter has ever asked the President or a spokesperson the dual citizenship based ineligibility question.  For some, that would relegate this issue to the status of too crazy to even bring up. If that is true, then we have to wonder what Barak Obama was up in April 2008 when he co-sponsored a congressional resolution declaring...drum roll please....John McCain a "natural born citizen."

That's right. At a time when McCain must have appeared to be one hell of a second place Presidential candidate, Democratic Senators Leahy, McCaskill, Clinton and then Senator Barack Obama introduced the resolution 'to express the common sense of everyone here that Senator McCain is a 'natural born Citizen.'  The declaration doesn't even scratch the surface of the actual legal foundation for whether or not McCain is legally eligible or ineligible.  Such things are passed as non-binding resolutions because the full debate required for actual laws would have blown it out of the water.  In my opinion, what is required here is an amendment to the constitution ie, something that will never happen because it would basically be an admission that everyone got robbed in 2008.

Depending on the balance between your political allegiances and respect for American legal institutions, you may or may not be hopeful for the issue Donofrio continues to champion to this day.  Let me help you with that.  Donofrio is absolutely correct on this point.  But this issue will never go anywhere practical due to the price everyone must pay to make it happen.  We as an entire country have ignored a very plain, clearly stated component of our legal system. Our media was completely asleep at the wheel and three people slipped through the cracks to become candidates on an ultimately invalid election ballot.
Something tells me it will go down in history as one of the greatest legal loopholes of all time.  Unlike the birther issue, this one must certainly bring a smile to President Obama's face.  He had to know about this issue years ago.  Keep in mind, our President wasn't simply an attorney but also a Professor at the University of Chicago Law school teaching constitutional law.  If you think that's too broad to become an expert on this very topic, consider then that one of the classes Obama taught year after year was called "Voting Rights & Election Law." ;-)