Wednesday, December 31, 2008
I have had a short glimpse at a long-running email battle between an Orly fan known as "BobJen" and "John", who purports to be a lawyer. John writes long long emails to BobJen, arguing that there is no question that Barack Obama is eligible to assume the Presidency and that this entire controversy about his eligiblity is silly.
I have to wonder why "John" is so frantic that he spends so much time and effort defending Obama. Here is one of the recent emails "John" sent to BobJen:
I performed research to respond to the question: Why doesn't Barack Obama release his "original birth certificate?" The answer is: he doesn't have to. Why? Because the birth record that he obtained and posted on the campaign website, entitled Certification of Live Birth, is competent evidence, admissible in the courts of the United States as a valid public record for the truth of the information contained in the document, which includes the date and place of birth.
The authority for its admissibility is found in the Federal Rules of Evidence and the Hawaiian statutes governing birth records:
1. Federal Rule of Evidence 803(9) provides that "Records or data compilations in any form of births, fetal deaths,, deaths or marriages, if the report there was was made to a public office pursuant to requirements of law," are not hearsay and are therefore admissible in evidence for the proof of the information they contain (Copy attached)
a. Hawaii Revised Statutes section 338-5 provides that it is a requirement of law to report every birth to the Department of Health" "within the time prescribed by the department of health, a certificate of every birth shall be substantially completed and filed with the local agent of the department in the district in which the birth occurred..."(Copy attached)
b. Hawaii Revised Statutes section 338-12 provides that certificates shall be prima facie evidence of the facts stated therein. (Copy attached)
c. Hawaii Revised Statues section 338-13 provides that the Department of Health shall upon request furnish to any applicant a certified copy of any certificate or the contents of any certificate, or any part thereof
2. Federal Rule of Evidence 902 provides that such a record is self-authenticating if it bears the seal of any state or agency of a state and a signature purporting to be an attestation or an execution. The record is also self -authenticating if it has the signature of an officer or employee of a state or agency thereof if the officer certifies that the signer has the official capacity and the signature is genuine.
The copy of the birth record ("Certification of Live Birth") on the Fact Check.org website contains the seal of Hawaii and the attestation of Alvin T. Onaka stating "I certify this is a true copy or abstract of the record on file at the Hawaii State Department of Health." (Copy of FactCheck.org posting is attached; See also PoliticFact.org posting, copy attached: these are non-partisan organizations and not the Obama campaign). This is sufficient to authenticate the document under the Federal Rules of Evidence.
Further, Hawaii Revised Statutes section 338-19 states that the department of health is authorized to prepare typewritten, photostatic or microphotographic copies of any records an fies in its office and such copies shall be competent evidence in all courts of the State with like force and effect as the original.
in the case of Inoue v Inoue, 118 Haw. 86 (Hawaii Intermediate Court of Appeals, 2008), the court concluded that the information regarding who fathered a child in the Certification of Live Birth was admissible and conclusive proof of paternity. (If you want the case, I'll send it, but it's long)
Based upon these legal authorities, the Certification of Live Birth is valid and admissible evidence that Barack Obama was born in Honolulu, Hawaii on August 4, 1961,
There is no competent evidence that the birth record is not true:
1. I have seen references to the requirements of the Hawaiian Homelands Program. The form for applying for that program says that an applicant should use a complete Certificate of Live Birth rather than a Certification of Live Birth. Why? Because to participate in that program you have to prove more than you were born in the State of Hawaii. You have to prove that you are a native Hawaiian defined as "any descendant of not less than one-half part of the blood of the races inhabiting the Hawaiian Islands previous to 1778" This is not a requirement for the Presidency of the United States or to be a natural born citizen. It is a special requirement where one needs to provide his/hergenealogy. (Copy attached).
2. I have seen references to certificates for children born out of state which can be issued under Hawaii Revised Statutes section 338-17.8, But that statute does not say that you can have a certificate issued that states a child was born in Hawaii when the child was not born in Hawaii. I have seen references to the fact an amended birth record or certificate can be issued, but that statute says only if the person was born in Hawaii. Hawaii Revised Statutes section 338-17,7
3. I have seen references claiming that Obama's paternal grandmother says he was born in Kenya. That is pure hearsay. I have seen no statement or testimony from her under oath. Statements of others claiming she made these statements are not competent, admissible evidence,
4. There is no evidence whatsoever that his mother ever even travelled to Africa.
5. When one applies for a birth record, there is no distinction between a Certificate of Live Birth and a Certification of Live Birth (See Instructions and Form for "Request for Certified Copy of Birth Record" attached).
(By the way, you are a friend but if you were a client, this research would cost a lot of money).
On the use of names issue, I saw copies of Obama's drivers license, marriage license and Illinois State Bar registration record (like the one you sent me for Michelle Obama) on a website. In each of them he uses the name, Barack H. Obama or Barack Hussein Obama. Where did he use other names?
The COLB presented purports to be prima facie evidence that Obama was born in Hawaii, but unfortunately, there is contradictory evidence that makes one question the authenticity of this COLB .
John claims that Onaka has signed the presented COLB and affirmed that it is accurate. So if Onaka did this, and Onaka stands by that, why did the press release made by Onaka's organization not confirm this? Seems like an obvious thing to do, since that is what everyone is asking for. Over and over. And not just informally, but in court proceedings. In multiple legal venues.
If Onaka had confirmed that Obama's presented COLB showing that Obama was born in Hawaii was a true likeness and all information on this COLB was consistent with the long form original certificate on file with the Hawaii Health Department, probably 99 percent of this controversy would have evaporated. Instead, this press release raised even more questions because of what it did not state, and what Onaka and others at the Hawaiian Health Department have declined or refused to state.
John does bring up the argument that the COLB is not even good enough to participate in many Hawaiian government programs. If that is correct, which it appears to be, why should the COLB be accepted to show eligibility for the presidency? I certainly know a COLB would not get you a US government clearance, for example.
Obama is being hired to work for us, the citizens of this country. And as his employers, if we want to see that Obama is eligible for the job, then Obama should show us what we need to make sure we are comfortable that he is eligible and meets the requirements. It is that simple.
Several courts have issued subpoenas on the basis that the COLB is inadequate to show that Barack Obama was born in Hawaii. So this "email lawyer" knows more than those judges?
The problem is, Obama can refuse to show his long form copy all he wants. And Obama might even get away with it with Congress and with SCOTUS and other courts. But Obama is losing in the court of public opinion. And that is the most important court for Obama to be concerned about, since Obama is a politician.
At least one state is instituting new rules requiring that all candidates on the ballot be vetted properly and requiring that all candidates show that they are eligible to participate (a little belated but perfectly reasonable for them to request this). If Obama continues to be unwilling to show his documents, then Obama will not get a second 4 year term. Obama might not even make it all the way through his first 4 year term if things turn against him badly enough.
And Obama will have to deal with what has happened to his public image in the meantime. And for a politician, his public image is the most precious resource he has. Already there are signs Obama's public image is badly tarnished . And I predict it will get worse.
On this eligibility issue, if Obama is eligible, Obama is causing himself and the country problems unnecessarily if what Obama and "John" allege is correct. Why would Obama do that?
John, since you seem to not be aware of Obama's use of other names, take a look at these:
Posted by Robert Stevens at 1:47 AM