U.S. ATTORNEY GENERAL IGNORES LEGAL CONTEXT OF CASE
by John Charlton
(Sept. 25, 2009) — With an amazingly brash exuberance acting Attorney General George S. Cardona has replied to Attorney Gary Kreep’s Opposition Briefing to his own Motion to Dismiss, in the Case Captain Pamela Barnett et al. vs. Obama et al..
While the response of the lead counsel for the Defense is brief, it is notable for its presumption that the legal facts of the case are other than they are.
First, Cardona begins by pointing out rightly that Attorney Kreep did not oppose his Motion to Dismiss on several points, such as quo warrento, and the presence of Clinton and Mrs. Obama as targeted plaintiffs.
But second, Cardona opens his argument against Kreep’s brief, explaining his own view of the legal context of the case:
Finally, the arguments made by these Plaintiffs, in large measure, completely ignore the fact that Barack Obama is the President of the United States and seek to treat him as simply a candidate for the Office. Try as they might, Plaintiffs cannot conceal the fact that what they are really seeking in this case is nothing less than a determination by this United States District Court that President Obama should be removed from Office. The preposterous nature of this assertion is readily apparent.
Cardona gives no citation of such an assertion in Kreep’s brief. Indeed no where in any filing by Kreep or Dr. Orly Taitz is mention made of such a claim.
The Plaintiffs’ assertion from the beginning was that Obama did not qualify for the office for which he ran: thus the allegation is that of election fraud, on which basis there is a substantial legal precedent to declare usurpers in office, those who hold them de facto, but through fraud gained entrance; a power of the Article III judiciary well established in law.
What Cardona is claiming implicitly, then, is that the office of the President is immune to charges of election fraud; so if it were gained by fraud, the Courts could not adjudicate the crime; only the Congress by means of impeachment. Cardona cites no basis for explaining why one would impeach a usurper, since impeachment in law presupposes lawful entrance into the office. This assertion of a different legal context is the fundamental thesis of Cardona’s arguments throughout the rest of his brief.
Cardona exposes the weakness of this argument, as he continues, saying:
As set forth in Defendants’ Reply Memorandum To The Opposition Filed By All Plaintiffs, Except Drake And Robinson (simultaneously being filed herewith) if this Court were to hold that it had the power to try the question of whether a sitting President of the United States is fit or qualified to remain in Office, or whether he should be removed from Office, the political life of this country would be exposed to chaos.
Since the Question is rather that of whether a de facto holder of the office has usurped it and never entered into it lawfully, not whether he is fit or qualified to remain, or be removed therefrom.
Then Cardona addresses the question of subject matter standing:
In their Opposition, Plaintiffs cite the case of Hollander v. McCain, 566 F.Supp.2d 63 (D.N.H. 2008) for the proposition that a candidate has standing to challenge the inclusion of an allegedly ineligible rival on the ballot. Hollander is inapposite to the instant case for several reasons. In the first place, the language quoted by Plaintiffs from a case is not a holding, but rather, is dictum. The holding in Hollander was that the plaintiff, a voter, lacked standing. Secondly, the stated premise of the district court’s dictum that a candidate has standing to challenge the inclusion of an allegedly ineligible rival on the ballot before the election is that such inclusion “hurts the candidate’s . . .chances of prevailing in the election.” Hollander v. McCain,supra, 566 F.Supp.2d at 68. In the instant case, as noted above, neither Plaintiff Drake nor the American Independent Party which Plaintiff Robinson heads had any chance at all, mathematically, of prevailing in the 2008 Presidential election. Consequently, they could not have been harmed by the alleged ineligibility of Barack Obama.
Cardona gives no citation to support the oft quoted “theory” of the mathematical chance of winning in an election, which on its face is an argument regarding hypotheticals used against claims of fact; since statistical probabilities only regard the election as held; not what would have happened if there were different candidates. Nor are statistical projections before an election statements of fact.
Then Cardona argues on the lack of the addressability of the claims made by the Plaintiffs’, thus:
As outlined previously in Defendants’ Motion, it appears that, in order to redress Plaintiffs’ alleged injuries herein, the Court would need to issue an injunction against President Obama that, inter alia, would require him to prove his eligibility and qualifications to be President of the Untied States. This Court cannot, consistent with the doctrine of Separation of Powers, preside over a trial regarding the President’s eligibility and qualifications, nor could it issue any injunction related thereto. See, e.g., Newdow v. Bush, 355 F.Supp.2d 265, 280-283 (D.D.C. 2005), and cases cited therein.
Cardona, in closing, notes that Attorney Kreep did not address the political question doctrine, and that therefore requests that the case be dismissed in its entirety.
It seems very likely, on account of the error of Cardona’s above mentioned assertion that the legal context of the case regards removal from office of the president, rather than usurpation thereof, that his arguments will be rejected by the Court.