Bob McCarty Writes

By Paul R. Hollrah, Guest Blogger

On Feb. 3, 2012, Atlanta Judge Michael M. Malihi, Deputy Chief Judge of the Georgia Office of State Administrative Hearings, issued a decision in four cases brought by eight Georgia residents.

The plaintiffs challenged Barack Obama’s eligibility to have his name appear on Georgia’s March 6 Democratic Presidential Preference Primary ballot and on the Nov. 6, 2012, General Election ballot, by reason of the fact that he is not a “natural born citizen” as required by Article II, Section 1 of the U.S. Constitution.

The relevant Georgia statute, O.C.G.A. (Official Code of Georgia Annotated) §21-2-5, provides that, “Every candidate for federal and state office who is certified by the state executive committee of a political party or who files a notice of candidacy shall meet the constitutional and statutory qualifications for holding the office being sought.”  The law further provides that either the Secretary of State of Georgia, or any registered elector in the state, may challenge the qualifications of any candidate, federal or state, who seeks access to the Georgia ballot.

On Jan. 3, 2012, Judge Malihi issued a ruling denying Obama’s motion to dismiss the four cases.  Obama and his attorney, Michael Jablonski, were subpoenaed to appear and a trial date was set for Jan. 26, 2012.

In a letter dated Jan. 25, 2011, addressed to Georgia Secretary of State Brian P. Kemp, Obama’s attorney demanded that the hearing request be withdrawn.  He said, “We await your taking the requested action, and as we do so, we will, of course, suspend further participation in these proceedings, including the hearing scheduled for January 26.”

Undaunted by Obama’s arrogance, the Secretary of State responded, saying, in part, “Anything you and your client place in the record in response to the challenge will be beneficial to my review of the initial decision; however, if you and your client choose to suspend your participation in the OSAH proceedings, please understand that you do so at your own peril.”

In his Feb. 3, 2012, decision, Judge Malihi took note, saying, “Neither defendant nor his counsel, Michael Jablonski, appeared or answered.  Ordinarily, the court would enter a default order against a party that fails to participate in any stage of a proceeding… Nonetheless, despite the defendant’s failure to appear, plaintiffs asked this court to decide the case on the merits of their arguments and evidence… By deciding this matter on the merits, the court in no way condones the conduct or legal scholarship of defendant’s attorney, Mr. Jablonski.”

Addressing the specifics of the allegations brought by plaintiffs, Judge Malihi divided his order into two parts.  The first part addressed concerns of plaintiffs David Farrar, Leah Lax, Cody Judy, Thomas Malaren, and Laurie Roth, represented by California attorney Orly Taitz.  The second part addressed concerns of plaintiff David P. Welden, represented by attorney Van Irion of the Liberty Legal Foundation, and those of plaintiffs Carl Swensson and Kevin Powell, represented by attorney J. Mark Hatfield.

Plaintiffs represented by Taitz brought a wide range of charges relating to Obama’s identity, the validity of his Certificate of Live Birth, and his allegedly fraudulent Social Security number.  During the trial she brought to the stand a number of expert witnesses.  These included Felicito Papa, a forensics expert who has examined Obama’s Certificate of Live Birth and found it to be a not-so-clever forgery; Linda Jordan, who ran Obama’s Social Security number through the Social Security Administration’s E-verify system, only to learn that Obama’s name and Social Security number produced a “mismatch” response; Doug Vogt, an expert with 30 years experience in document imaging scanners who testified to numerous problems with Obama’s birth certificate; an Ohio private investigator who found that the Social Security number that Obama uses was first issued to a resident of Connecticut in the late 19^th century, and three others.

In his written order, Judge Malihi was totally dismissive of the testimony provided by the expert witnesses, saying that he found the testimony, as well as the exhibits offered, “to be of little, if any, probative value, and thus, wholly insufficient to support plaintiffs’ allegations.”

He went on to say that, “The credibility of witnesses is within the sole discretion of the trier of fact.  In non-jury trials that discretion lies with the judge…”  Totally ignoring the impressive credentials of the expert witnesses, he concluded by saying, “None of the testifying witnesses provided persuasive testimony… Given the unsatisfactory evidence presented by the plaintiffs, the court concludes that plaintiffs’ claims are not persuasive.”

In part two of his order, Judge Malihi addressed the claims of plaintiffs Welden, Swensson, and Powell, each of whom alleged that Obama is not eligible to serve as President of the United States by reason of the fact that he is not a “natural born citizen” as required by Article II, Section 1 of the U.S. Constitution.  In their testimony, plaintiffs presented documentary evidence proving that, at the time of Obama’s birth, his father was not a citizen, or even a permanent resident of the United States.  The documents introduced into evidence included Obama’s long-form birth certificate; highlighted pages from his memoir, Dreams from My Father; and documentation from the U.S. Immigration and Naturalization Service, all showing conclusively that at no time was Obama’s father ever a citizen of the United States.

Having presented sufficient documentation to establish the facts of Obama’s father’s nationality, the plaintiffs’ attorneys then proceeded to introduce evidence showing that, in order to qualify as a “natural born citizen” of the United States, it is necessary that both of one’s parents must be U.S. citizens at the time of birth.

In support of this proposition, attorneys Irion and Hatfield cited the precedent contained in the U.S. Supreme Court’s Minor v. Happersett opinion of 1875.  In that opinion, the court said, “At common law, with the nomenclature of which the Framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also.  These were natives, or natural-born citizens, as opposed to aliens or foreigners.”

Nevertheless, in his order, Judge Malihi totally ignored the precedent established in Minor v. Happersett, which must be viewed by all courts, state and federal, as the law of the land.  Instead, he relied on the “tortured” reasoning of a state court, Ankeny v. Governor of the State of Indiana, 916 N.E. 2d 678 (IN Ct. App. 2009).

In his analysis of Judge Malihi’s order, attorney Mario Apuzzo points out that, since Malihi based his order almost entirely on the Ankeny decision, his order “can only be as sound as the Ankeny decision may be.”  He then goes on to show how “the Ankeny court misread Minor v. Happersett, suggesting something that any high school student would reject, which is that the Fourteenth Amendment somehow contradicted Article II, Section 1 of the Constitution.”

Apuzzo goes on to explain that, “(The Ankeny court) also erred when it said that Minor ‘left open the issue of whether a person who is born within the United States of alien parents is considered a ‘natural born citizen.’  The (Minor) court did no such thing… Minor told us that there is no doubt who a ‘natural born citizen’ is, telling us that it is a child born in the country of two U.S. citizen parents.”

Apuzzo reminds us that, “The Naturalization Acts of 1790, 1795, and 1802, prove that only a child born in the United States to U.S. citizen parents can be an Article II ‘natural born citizen.’  These acts treated children born in the United States to alien parents as aliens themselves.  These acts also naturalized children born abroad to U.S. citizen parents to be, in 1790, ‘natural born citizens…’  By analyzing these acts, we can see that the only child over whom Congress did not exercise its naturalization power was a child born in the United States to citizen parents.  Hence, that child was the ‘natural born citizen.’”

Putting the final nail into the coffin of Judge Malihi’s order, and showing conclusively that his order rests on legal quicksand, Apuzzo tells us, “Moreover, as naturalization needs uniformity, so does the citizenship standard needed to be met by those wishing to be eligible to be president.  Hence, any state court decision on the meaning of a ‘natural born citizen’ is not binding on the nation in determining who is eligible to be president.”  Checkmate!  Game over!  Case closed!

Now, in the aftermath of the Malihi order, AG Kemp, apparently fearful of becoming the news story of the year, has declined to take a principled stand.  In a Feb. 7, 2012, news release, he said, “After careful consideration of Administrative Law Judge Michael Malihi’s initial decision and all record evidence based on the criteria set forth in this process, I find that the Respondent, President Barack Obama, meets the State of Georgia’s eligibility requirements.  President Barack Obama’s name shall remain on the Democratic Party’s 2012 Presidential Preference Primary ballot.”

The plaintiffs plan an appeal to the Fulton County Superior Court.  They are men of courage.  Let us remember them in our prayers.

Paul R. Hollrah

Hollrah is a senior fellow at the Lincoln Heritage Institute and a contributing editor for Family Security Matters and a number of online publications.  He resides in northeast Oklahoma.

SEE ALSO:

The Day Justice Died in an Atlanta Courtroom; and

Transcripts of hearings for Farrar’s case, Swensson’s case and Welden’s case.

Be sure to check out Bob McCarty’s new book, Three Days In August: A U.S. Army Special Forces Soldier’s Fight For Military Justice.

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