Barnett v. Obama - Report On 10-5 Hearing

BARNETT V OBAMA HEARING
OCTOBER 5, 2009
WAVEYDAVEY REPORT
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1 WAVEYDAVEY REPORT ON BARNETT V OBAMA HEARING
2 OCTOBER 5, 2009
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3 As Related by Tes:
b.
5 They begin letting people into the courtroom at 8:05.
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6 At 8:30 the prior hearing was still going on, and TAITZ
7 arrived. Then there was a recess. At 8:40 the judge
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8 reentered the courtroom and started up the session for
9 this hearing.
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For the defense there were three individuals:
DEJUTE, and also Eric Sauzener (phonetic) from D.C.

WEST,
12 WEST presented his motion. First he said he wanted to

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13 focus on policy issues. He essentially reiterated what
14 was in his motion to dismiss; that is, anybody with a

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15 political agenda and filing fees could contest the

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16 qualifications of presidents if this was allowed to
17 proceed, which affects the balance of power.

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18 He mentioned the other Obama cases and said, the same

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19 issues there. If the president is forced to go through
20 depositions, and so on, for all a these various cases,
21 it would affect his ability to govern.

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22 If even one judge decides that Obama is not qualified,
23 and a second decides that he is qualified, what then?

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24 Chaos. It would affect the ability to conduct foreign
25 policy, nuclear disarmament negotiations, and so on.
Updated 10/5/2009 6:10 PM PDT

OCTOBER 5, 2009
WAVEYDAVEY REPORT
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1 This approach damages the presidency itself, the office,
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2 not just Barack Obama.
3 The president is the only office elected by all of the
b.
4 United States, and the textual commitment in the
5 Constitution makes this issue nonjusticiable. At that
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6 point the judge said, "I could never pronounce that
7 word."
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8 WEST continues that, this is committed to the
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legislative branch, not to the courts. He then talked a
little bit about quo warranto, and said if it were to --
if quo warranto were applicable at all, it would be okay

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12 if it were transferred to D.C. because D.C. is where it
13 should be heard. However, quo warranto does not apply

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14 here.
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15 Then DEJUTE began to address the Court, and he focused
16 on the sur-reply. He said he wanted to make two points.

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17 Number one, the Ninth Amendment argument. He talked
18 about what TAITZ said and said, but in the end only
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19 Congress has the power to remove a president. The Ninth
20 Amendment is not a source of right when the Constitution

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21 explicitly states otherwise. The Constitution granted
22 the right both to seat a president and remove a
23 president to Congress.
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24 The second point related to TAITZ's FOIA claim, that
25 the plaintiff has asked the Court to disregard the fact

OCTOBER 5, 2009
WAVEYDAVEY REPORT
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1 that they did not file the FOIA claims properly. she
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2 can't get around the rules that apply to FOIA in this
3 roundabout way. You have to follow the rules.
b.
4 CARTER interrupted to say, "I would like to hear about
5 the standing issue."
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6 WEST responded that plaintiffs simply cannot establish
7 injury in fact or particularized harm. Because of this
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8 there's no redressability and no justicability.
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CARTER then turned to the political question.
was a lot of discussion back and forth about the

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Political Question Doctrine, and CARTER's focus was on

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12 trying to figure out how that works. Basically, he
13 said, there's two issues: Number one, is this a

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14 political question, and number two, walk me, (the judge)

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15 walk me through the process of how this political
16 question will play out.

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17 If what the DOJ says is true, what would be the
18 process to remove the president determined to be

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19 ineligible? Is it part of the electoral college,
20 legislative process, or what? CARTER posed a

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21 hypothetical. What if Schwarzenegger ran for president
22 and Congress was ruled by the Republicans. Would they
23 help him? Would they ignore the problem? Make that

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24 analogy, CARTER said.
25 WEST said, it's a totally different situation between

OCTOBER 5, 2009
WAVEYDAVEY REPORT
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1 a candidate and a president. There might have been
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2 standing while we were just talking about candidates,
3 but we're past all that now.
b.
4 CARTER said, okay. Well then, walk me through the
5 process.
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6 So WEST focused on a couple of different things.
7 First he talked about the 25th Amendment procedures in
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8 place to determine if a president can serve, or whether
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that would apply here. Po

he's incapacitated or not, and WEST said by extension
The 25th Amendment says what to
do when a president is incapacitated, and failure to

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12 qualify is a type of incapacitation.
13 Secondly, he talked without the impeachment process,

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14 referring to the Nixon impeachment proceedings and what

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15 he said was, from both of these, the courts cannot be
16 involved.
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17 WEST said the sole power is granted to Congress to
18 impeach. In fact, there's only two instances where the

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19 phrase "sole power" is used in the Constitution, both in
20 regards to the Electoral College and Congress removing

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21 the president. The Constitution doesn't use that
22 language anywhere else, but they do use it, he said,
23 with respect to the Electoral College and Congress,

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24 saying they have the sole power to make these kinds of
25 decisions about the president.

OCTOBER 5, 2009
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1 CARTER went back to the question, but what is the
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2 process? How would Congress proceed? Would Congress
3 proceed by impeachment proceedings or some other
b.
4 process?
5 WEST said, we have the 25th Amendment. This could be
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6 a process of incapacitation, so you could use the 25th
7 Amendment process, and then he explained that process,
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8 two-thirds vote of both houses, et cetera, et cetera.
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DEJUTE said, you know, it's not exactly clear, here,
what plaintiffs are asking for.
for him to be removed or not?

Are plaintiffs asking
They're not really saying

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12 which way it is. If it's removal, then impeachment
13 would be the only means. At this point CARTER nodded

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14 his head in agreement.

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15 DEJUTE said, courts have no jurisdiction if they're
16 saying they want to remove him from office because that

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17 can only be done by impeachment.
18 Then CARTER talked about the problem of plaintiffs

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19 picking a forum and shopping for courts, and said, if it
20 was a quo warranto action shouldn't it be in the D.C.

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21 court. WEST said quo warranto is not applicable, but if
22 it was D.C. is the appropriate place.
23 CARTER then discussed whether Congress has the ability

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24 to direct the courts as to who has jurisdiction (this
25 was in the context of discussing the quo warranto statute.)

OCTOBER 5, 2009
WAVEYDAVEY REPORT
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1 CARTER was questioning whether Congress could say one
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2 court has jurisdiction and another court doesn't.
3 [Time: It's now 9:00.]
b.
4 At 9:00 TAITZ begins to speak, and she said impeachment
5 is not appropriate because impeachment can only be used
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6 for a legitimate president. Since he's not legitimate
7 he does not qualify for impeachment. This is why we
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8 have quo warranto.
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quo warranto?
THE COURT:
Po Shouldn't this be in D.C. for
You have conceded that in your papers.
MS. TAITZ: You (the judge) are mandated to

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12 use quo warranto to decide if the individual is
13 illegitimate for the position.

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14 In other words, TAITZ said not only can CARTER take the quo
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15 warranto case, but he must.
16 She then complained about the government being

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17 involved on behalf of Obama, said they're the
18 government, they should not be an adversary in this

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19 process they should be helping her, but they're not.
20 CARTER interrupted her to say that he wanted her to talk

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21 about standing.
22 TAITZ's response was, before going to standing, I
23 want to go to the jugular of what WEST said, that if the

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24 case proceeds any plaintiff with a political agenda is
25 able to bring an action against a standing president.

OCTOBER 5, 2009
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1 TAITZ contended that WEST has misrepresented the
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2 situation. It's not a political question, it's a legal
3 question. The question is, is Obama legitimate for the
b.
4 presidency. Politics is irrelevant and goes by the
5 wayside.
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6 She then said there's no res judicata from other
7 cases because no other case has been tried on the
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8 merits. Anything that's happened so far doesn't really
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9 matter.
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Then she addressed the Court to say, just as you
have served our country bravely as a marine, we hope you

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12 have bravery to try this case on the merits and not
13 dismiss it on a technicality.
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14 Major Cook, (she pronounced it "Kook") ... in the

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15 Major Cook case, Judge Land dismissed not on the merits,
16 but in that case it was shown to the world the

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17 president's illegitimacy. Why else would they dismiss
18 his orders? The only explanation for dismissing

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19 Major Cook's orders is that the top brass know that
20 Barack Obama is illegitimate. With respect to Rhodes,

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21 the Rhodes case did provide standing.
22
23 (NOTE: As a side note, waveydavey could see the DOJ

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24 marshalling up papers showing that TAITZ said the opposite
25 in papers in Rhodes. But they came back and addressed it.)

OCTOBER 5, 2009
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1 CARTER asked TAITZ whether Rhodes refused to deploy.
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2 TAITZ responded no, but she was under duress and
3 coercion. And TAITZ contended that she, herself, had
b.
4 been threatened with sanctions and she's now withdrawn
5 as counsel.
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6 CARTER then referred to a plaintiff in the current
7 case, Lieutenant Freese and asked whether he had
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8 received any orders to deploy. TAITZ's response was that
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9 she didn't know.
THE COURT:Po This is troubling to any court
for patriotic military members to question the

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12 legitimacy of chain of command when it's all only
13 speculative. He then asked TAITZ, have any orders been

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14 cut for this lieutenant, and if not, what standing does

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15 he have?
16 TAITZ responded, well, there's many layers of

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17 standing, and then she discussed Rodearmel, which is a
18 D.C. case challenging Hillary Rodham Clinton's ability

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19 to be Secretary of State.
20 TAITZ said that in Rodearmel a three-judge panel

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21 has found standing for this gentleman who has taken an
22 oath to serve in the department of state and is
23 challenging her legitimacy.

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25 (Side Note: TAITZ's contention is false. The case Rodearmel

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1 is actually before a three-judge panel in D.C. However,
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2 the court has not ruled on that case yet, so they have
3 not found standing. There was a hearing on the issue
b.
4 but there is no ruling.)
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6 TAITZ then discussed the concept of taking oaths,
7 and that the military has taken oaths and the
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8 representatives have taken oaths, and under those oaths
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the Constitution must be upheld, and that's why they
have standing because they've taken oaths.
She mentioned Allen versus Board of Education and

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12 Clark versus USA, two cases that she cited in her brief.
13 CARTER said had one of the cases in front of him,

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14 [WaveyDavey thinks it was Clark), and said yes, but the

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15 claimants in that case had standing but that's because
16 their injury was not conjectural, hypothetical, or

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17 speculative.
18 THE COURT: Many of your military plaintiffs

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19 are not on active duty. Therefore, their situation is
20 merely speculative and hypothetical.

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21 So then CARTER switched back to
22 Lieutenant Freese, who is on active duty, and discussed
23 his situation for a bit, and then addressed retired

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24 plaintiffs. With respect to the retired military
25 plaintiffs Judge CARTER said, "You're losing your

OCTOBER 5, 2009
WAVEYDAVEY REPORT
10
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1 argument unless you can convince me otherwise."
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2 TAITZ responded to Judge CARTER by quoting Brown
3 versus Board of Education. What if Thurgood Marshall was
b.
4 here arguing the case for desegregation. The judge
5 might say, how are those students harmed? They could
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6 still go to school. Judge CARTER interrupted to say
7 well, he's dead. TAITZ continued, trying to make the
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8 analogy between Thurgood Marshall arguing for
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desegregation and her situation.
(At this point she was going full steam, her voice
was rising, she was getting louder, and hammering the

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12 podium as she was making her points.)
13 TAITZ went back to discussing Allen versus Board

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14 of Education and Clark versus USA and said in those

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15 cases the Supreme Court decided that the Constitution
16 was violated, and those plaintiffs had standing. So too

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17 here, her military plaintiffs would be harmed if they
18 were forced to do something that violates her oaths, and

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19 the same would apply for the other oathtakers the state
20 representatives.
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21 CARTER returned back to Lieutenant Freese. He
22 said, you are claiming that active military members have
23 standing. And then he read a section from Allen versus

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24 Board of Education. Then he said, the Allen case isn't
25 binding, and even if it was, subsequent to Allen the

OCTOBER 5, 2009
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1 standing requirements have been tightened.
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2 He also discussed Tahoe Planning case [City of
3 South Lake Tahoe versus Cal. Tahoe Reg. Planning
b.
4 Agency, a Supreme Court case, 1980], to say it's always
5 so clear who has standing and doesn't, and said based on
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6 the Tahoe case, Lieutenant Freese fails to establish
7 standing.
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8 ... [duplicate entry deleted]
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9 ...
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...
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12 ...
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14 ...
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15 TAITZ responded by saying in their reply the DOJ
16 could see that the plaintiffs had standing, and then

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17 referred back to the Allen versus Board of Education
18 case, where she said Allen plaintiffs had standing

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19 because they were being forced to buy books, while here
20 people have been forced to buy the president. Just as

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21 in Allen, they shouldn't have been forced to buy books,
22 you shouldn't force the people here to buy the
23 President.
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24 She then started talking about the Sandra Lines
25 affidavit saying that the COLB was forged, but CARTER

OCTOBER 5, 2009
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12
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1 cut her off and said, I want to talk about
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2 Lieutenant Freese. TAITZ responded by saying all these
3 plaintiffs took oaths.
b.
4 CARTER read from the case again, in part, and
5 then he walked through different categories of
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6 plaintiffs saying retired, then active military members,
7 then representatives, and oathtakers, and then he said,
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8 now let's talk about plaintiffs who are candidates.
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He reiterated the particulars of the Lightfoot v
Bowen case and said as to this group of people the
defense argues that plaintiffs failed to establish

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12 injury due to lack of winning the election because they
13 could not possibly get enough ballots to win, but he

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14 wondered whether that was accurate.

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15 What would have happened if Ross Perot had
16 challenged a candidate during his campaign? How would

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17 Perot have fared during this process?
18 He questioned, does the fact that you don't have

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19 enough votes to win mean that you aren't harmed? He
20 wasn't sure, but he also wasn't sure how you would

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21 establish injury in fact for these candidates.
22 TAITZ responded that the DOJ brought up a good
23 argument in that respect, and anyway Drake and Robinson

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24 were not her plaintiffs anymore.
25 CARTER responded, that doesn't matter. The cases

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1 are not separated.
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2 TAITZ said, well, Keyes can show sizable injury.
3 If Obama couldn't satisfy citizenship then Keyes has a
b.
4 good case.
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6 [AT THIS POINT IT'S 9:30 AND KREEP ARRIVED.]
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8 (KREEP came in the back way, from where the judge
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at counsel table.) Po
enters and exits, and went up and sat down immediately
During this same period, CARTER was posing

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12 questions. So there's the question of jurisdiction. He's
13 concerned about political questions, and then he tells

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14 both sides to write down his questions.

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15 And they are: Whether the political question is
16 justicable or not (saying it's all sort of entwined

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17 together, hard to separate out whether it's a political
18 question or legal question in some cases)? Can this

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19 issue in fact only be decided by the electorate?
20 He then cited to Powell versus McCormick which he said

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21 dismantled the political question for someone who has
22 been elected to Congress, some tainted candidate, and
23 talked about the Bush case having to do with Guantanamo,

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24 dealing with national defense, so, not merely political.
25 Therefore, he has to be careful about this jurisdiction

OCTOBER 5, 2009
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1 issue, he stated. Is there a substantial federal question
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2 and, if so, which court is the right court. He expressed
3 concern about sweeping the case under the jurisdictional
b.
4 rug.
5 He also talked about a case that Justice Kennedy
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6 had ruled on and then referenced McCain and his
7 Panamanian birth and the fact that that was endangering
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8 his candidacy at one point. CARTER then posed the
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hypothetical where he was born in Panama, but what would
have happened if his mother was enroute from Germany
from Panama when she had him.

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12 He seemed to be taking the point of view of the
13 mother, that just because my son was born in Germany

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14 rather than Panama, he can't be president? Similarly he

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15 said if Obama was born in Kenya that's equally an insult
16 to Obama's mother.
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17 TAITZ said, this is not a political question, it's
18 an issue to be satisfied on the merits.

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19 THE COURT: In Congress?
20 MS. TAITZ: (Emphatically) No, by you.

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21 TAITZ then started talking about Bowen again,
22 saying Bowen, Secretary of State of California, did not
23 scrutinize the requirements for Obama's eligibility, and

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24 TAITZ even has an e-mail from Bowen that proves she
25 didn't check. Bowen said she took Obama's word for it.

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1 Was fraud committed?
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2 She was interrupted at this point by someone, and
3 she said, "Can I just finish?"
b.
4 And then she went on to mention the memo that she
5 got from Senator Sessions where he was indicating he
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6 should look into it, but then he didn't.
7 CARTER interrupted her, to move on, and he said,
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8 you've requested discovery, but that's held up due to
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12(b)(6) because that's very much in question at this
point, very much in question.
want to depose Obama?

And anyway, why do you
He has no memory about his birth.

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12 He asked about the FOIA request, and asked why
13 not just examine the Hawaiian birth certificate. Why

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14 are we even concerned about these Kenyan birth

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15 certificates? He mentioned the controversy over the
16 Kenyan birth certificate. But, who cares? What matters

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17 is the Hawaiian birth certificate.
18 TAITZ responded with regards to the Hawaiian birth

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19 certificate, that Hawaii must have Obama's consent before
20 they release it, but so far he has refused to give it.

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21 He just should just consent, but since he hasn't, that
22 shows he has something to hide.
23 THE COURT: My last question:

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24 MS. TAITZ: If I may...
25 THE COURT: No, you may not.

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1 CARTER then said the government has said that the
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2 government should he solve this issue. Once the
3 president has taken office we're in a different
b.
4 situation. Prior to that the Electoral College could
5 have addressed it, and that would have been the time to
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6 file these lawsuits.
7 You (TAITZ) filed on the day of inauguration. Why file
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8 on election day? There was then a long discussion about
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the exact date and time that these papers were filed.
TAITZ said, I filed before he was inaugurated.
THE COURT: Well, according to the time

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12 stamp it was filed at 3:00 p.m. Why wait until 3:00
13 when we already have a duly-sworn president rather

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14 earlier in the day or much prior to that?

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15 TAITZ responded that she had another case in
16 November before he was duly sworn in.

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17 THE COURT: He was already sworn in before
18 this case ever got to my desk. You had a lack of

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19 diligence. Why wait until that last day?
20 I'm going to make a finding that the opportunity

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21 was lost for the Electoral College to address it. Why
22 did you wait until the last day, and until 3:00 p.m. at
23 that?
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24 TAITZ replied, I did file another case, and
25 Justice Roberts agreed that all nine justices would hear

OCTOBER 5, 2009
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17
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1 it, but then it was erased from the docket. And she
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2 continued discussing her conspiracy theory related to
3 the appeal of Lightfoot versus Bowen.
b.
4 CARTER stopped her, saying that he was deeply
5 concerned about whether her plaintiffs had standing, and
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6 he reiterated the different categories of plaintiffs.
7 With respect to retired military and active military he
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8 said it was conjectural and hypothetical. With respect
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to state elected officials and candidates he said
essentially the same thing. It's questionable as to
whether any of these groups have standing.

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12 At that point he gave Gary KREEP the opportunity
13 to speak.
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14 KREEP apologized for being late. CARTER

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15 interrupted.
16 THE COURT: I'm not going to grant your

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17 severance motion.
18 KREEP responded that he plans to amend his

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19 complaint.
20 THE COURT: It won't be granted. Whatever

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21 you have to say you better say it now.
22 KREEP - I represent two plaintiffs only. Then he
23 referred back to the McCain analogy that Judge CARTER

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24 had mentioned earlier, and he said that law was changed
25 anyway, so it's not applicable. With two citizen

OCTOBER 5, 2009
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18
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1 parents he would be a U.S. citizen regardless of where
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2 he was born, but at the time he was born that revision
3 didn't apply. Judge CARTER agreed.
b.
4 KREEP said in the case of Obama the mother was
5 not old enough under current law, and then went into the
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6 discussion that all this issue has to do with is what's
7 in the Constitution.
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8 CARTER responded, no, it's not. Congress passes
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laws to say what it means.
law which affected McCain.
again.
Congress acted to change the
Congress could change it
If so, it becomes a political issue. Therefore,

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12 it's a political issue. He then talked more about if
13 Congress can make a law about who is a citizen and who

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14 is not a citizen, then what that law is or how the

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15 Constitution is interpreted on that issue is a political
16 question because Congress gets to decide.

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17 Then he went back to the opinion that
18 Justice Kennedy wrote, and commented that he thinks it's

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19 absurd if a mother's location at birth renders her child
20 ineligible to run for president. Regardless of what

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21 specific laws are there, it's ridiculous, CARTER said.
22 KREEP said, I want to focus issues here relevant
23 to the extraneous defendants.

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24 CARTER said, yes, you've been very focused. I
25 appreciate it.

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19
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1 KREEP then also said there's no need to take
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2 Obama's deposition. All you have to do is subpoena the
3 document from Hawaii. Then he complained about false
b.
4 statements made by TAITZ relevant to the prior case, the
5 Keyes versus Bowen or Lightfoot versus Bowen case.
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6 (Earlier in the hearing she'd been criticizing KREEP for
7 how he ruined her case.)
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8 Then he went back to the arguments made in his
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opposition to the motion to dismiss, that is, he made the
argument about how the original intent was for the
Electoral College to decide on the Presidency, because they were

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12 the most informed voters and the average citizen was not
13 informed. Therefore, they put the responsibility on the

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14 Electoral College, but now the people themselves are the

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15 most informed voters and that original intent is no
16 longer applicable.
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17 CARTER then dismantled that argument. He said
18 the Electoral College could challenge it. Did they?

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19 You (KREEP) are saying that 26 states have laws
20 requiring electors to vote for the winning candidate,

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21 but what about the other states? Any one of them could
22 raise the issue, and nobody did.
23 Was there a conscious decision made not to raise

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24 the issue on the part of the Electoral College that are
25 not part of that group that can't change their vote? So

OCTOBER 5, 2009
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20
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1 what about those? They could have challenged it. What
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2 happened? Of course, CARTER said, it's a totally
3 different situation before and after the inauguration.
b.
4 KREEP responded, well, any individual should be
5 able to raise this question.
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6 CARTER said, well, why was it not raised by any
7 state?
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8 KREEP said he didn't know. He said it could have
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9 happened but it didn't.
Po KREEP then said Cheney did not
ask if there was any challenge, as he should have, in
Congress, referring to the counting of the Electoral

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12 College vote.
13 However, KREEP said, regardless of that, the

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14 citizens have the right to know if their president is

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15 legitimate.
16 CARTER asked, well, what is the process if he's

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17 not legitimate?
18 KREEP said if he's not legitimate then Biden

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19 becomes president and all the orders that have been
20 signed by Obama are not valid.

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21 CARTER asked, so you believe the federal courts
22 should be involved?
23 KREEP responded yes.

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24 CARTER said, but some courts might be more
25 liberal than others, and there's a danger the plaintiffs

OCTOBER 5, 2009
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21
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1 will just search for a friendly forum. CARTER expressed
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2 concern about forum shopping to find a friendly judge to
3 rule on these issues.
b.
4 He turned to TAITZ and said, why did you bring
5 this case here instead of Illinois?
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6 (At this point it's about 10:15 a.m.)
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8 TAITZ responded, I live here, and I'm licensed
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9 here, not in Illinois.
PoAnd I tried D.C., which has quo
warranto, but it didn't go anywhere.
At that point CARTER said, he was ready to call a

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12 recess, but he gave questions to each side. He said
13 he's concerned about jurisdiction, standing, and

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14 process, and under process if there's going to be a

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15 removal what is the process. Is it impeachment?
16 Something else? 25th amendment?

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17 Nobody, CARTER said, has been able to explain to
18 him what would be the process for removal of a president

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19 in this situation. He also said he was concerned with
20 forum shopping.
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21 He turned to Taitz and said, you must address
22 standing. You're in danger of failing to do that.
23 He then said that he really does like to have courts

Fr
24 open and for people to have a chance to be heard, and
25 stated, "My mind is not made up."

OCTOBER 5, 2009
WAVEYDAVEY REPORT
22
m
1 There was a recess just a little after 10:15.
co
2 The hearing went back in session at 10:40.
3 WEST was up first for the defense.
b.
4
5 WEST said, I'm going to address the question of
ija
6 jurisdiction, political question, and then the process
7 walkthrough.
lit
8 With respect to jurisdiction, if you are talking
10
11
9
Po
about removal of a president the clear power is
committed for Congress textually from the Constitution
which grants Congress "sole power." It could not be

at
12 more clear.
13 With respect to the Political Question Doctrine

s
14 WEST said, if an issue is textually committed for a

nd
15 branch of government by the Constitution, then it's a
16 political question. So whereas here the issue is

ie
17 textually committed to Congress, it is a political
18 question and not justicable by the courts.

Fr
19 CARTER asked, then the courts would never have
20 jurisdiction to enter into this area?

om
21 MR. WEST: Yes.
22 THE COURT: Courts have no role?
23 MR. WEST: Yes. The only role would be when

Fr
24 the Supreme Court chief justice presides over
25 impeachment.

OCTOBER 5, 2009
WAVEYDAVEY REPORT
23
m
1 WEST then reiterated the issue that he talked
co
2 about before, about the political chaos that would come
3 on if individual plaintiffs could sue in courts around
b.
4 the United States challenging the presidency.
5 Then WEST addressed the process walkthrough, and
ija
6 he contended that Congress has the ability to decide the
7 process. He mentioned that this happened in the Nixon
lit
8 impeachment. Congress set up a committee that sat down
10
11
9
impeachment hearings. Po
and hammered out the process for proceeding on the
Hypothetically, he said, that's
what would happen here if it were to occur. There is,

at
12 in fact, nothing stated explicitly in the Constitution
13 about exactly how the process works, but the Constitution gives
s
14 Congress the power to decide how. Again, this is what Congress

nd
15 did with respect to Nixon.
16 THE COURT: Can any individual senator raise

ie
17 the issue?
18 MR. WEST: Yes.

Fr
19 THE COURT: Is that the proper forum?
20 MR. WEST: Yes.

om
21 CARTER then turned to TAITZ and said, has any
22 individual senator raised the issue? TAITZ responded
23 that she doesn't know.

Fr
24 WEST then continued to describe the process,
25 saying that if the president was unable to discharge his

OCTOBER 5, 2009
WAVEYDAVEY REPORT
24
m
1 powers of office under the 25th Amendment, the 25th
co
2 Amendment procedures, two-thirds vote, et cetera, would
3 be in place.
b.
4 He said it's a very clear textual commitment to
5 Congress to manage that process and, therefore, the
ija
6 issue is not justicable.
7 CARTER said, yeah. Congress can create the
lit
8 process, right? And at this point DEJUTE said yes.
10
11
9
the place to do it. Po

Well, in any case, it can be clear that the court is not
TAITZ then began speaking, saying this is an

at
12 absolutely ridiculous argument. TAITZ talked again about
13 how she wrote to Bowen, and Bowen said she didn't check,
s
14 and she didn't need to because she took Obama's word.

nd
15 She talked about various other events in the history of
16 her case, and said if the system can't bring justice

ie
17 then we have a dictatorship, tyranny, no rule of law.
18 Somebody like Bin Laden could come to the country with a

Fr
19 bunch of money and buy the election.
20 CARTER interrupted her to say, back to my

om
21 question. If it's impeachment or another process why
22 has no one in Congress raised it? TAITZ responded by
23 talking about Senator Sessions, saying that senate

Fr
24 ethics precluded him from getting involved in something
25 having to do with pending legislation. She contended

OCTOBER 5, 2009
WAVEYDAVEY REPORT
25
m
1 maybe that's why they have abstained, so that you,
co
2 (Judge CARTER), could rule on it.
3 At this point she went off on another tangent,
b.
4 her voice raising, and pounding on the podium. She
5 started talking about the alleged multiple Social
ija
6 Security numbers of Obama, including the one that
7 involved to a 121-year-old man, the massive fraud,
lit
8 corrupt government, he refuses to decide the issues.
10
11
9
Po
TAITZ contended, even if she showed a video of
Obama's birth taking place in Kenya they're not willing
to listen. The government is too corrupt. They've

at
12 taken away our constitutional rights and, therefore, the
13 judiciary has the right to intervene. She repeated,

s
14 because Congress is so corrupt the judicial branch can

nd
15 intervene.
16 She then referenced another case, D.C. versus

ie
17 Heller, (Second Amendment case decided decide by the
18 Supreme Court) and, according to Taitz, D.C. versus Heller

Fr
19 overrides all previous cases, and under D.C. versus
20 Heller ordinary citizens have the right to enforce

om
21 provisions of the Constitution.
22 Then she went back to arguments stated in her
23 opposition about under the Ninth Amendment, Fifth and

Fr
24 Fourth Amendment they all give any citizen the right to
25 uphold the Constitution. Whether the rights are

OCTOBER 5, 2009
WAVEYDAVEY REPORT
26
m
1 enumerated or not enumerated she said the individual
co
2 citizen has the right to uphold the Constitution.
b.
4 (At this point it's 1)1:00.
ija
6 TAITZ, in terms of standing, referenced Rodearmel,
7 where she (incorrectly) said a three-judge panel has found
lit
8 standing. She also referenced Clark versus U.S. and
10
11
9
Po
Allen versus Board of Education.
She said if a person takes an oath and is forced
to violate it, it's a de facto taking of his employment.

at
12 Therefore, we do have standing, at least with respect to
13 those who took an oath, but indeed all citizens have

s
14 standing, due to the fact that we're taxpayers. We pay

nd
15 his salary. If he got there by fraud (she then
16 mentioned all the Social Security numbers and alleged

ie
17 forged COLB, et cetera.
18 It affects us as taxpayers. And it's not just the

Fr
19 salary, but all the other expenses he's incurring. She
20 referenced the AIG rescue bill where AIG got money, a

om
21 substantial portion of which went to foreign companies.
22 She said we have a right to know who is this man.
23 At this point she's wound up again pounding on the

Fr
24 podium, her voice raising. In Lightfoot versus Bowen,
25 she said, the only answer they got in this case was that

OCTOBER 5, 2009
WAVEYDAVEY REPORT
27
m
1 it was denied, but the court refused to give them an
co
2 explanation.
3 What harm? You want to know what harm? There has
b.
4 to be harm? God knows we've experienced plenty of harm.
5 She then started listing all the horrible things she
ija
6 said Obama is doing with the legislation. She said this
7 is not an issue of politics, it's an issue of quo
lit
8 warranto. At which point the peanut gallery broke into
10
11
9 clapping and cheering.
to D.C.?
Po
CARTER said, if it's quo warranto why not take it
TAITZ said, I submitted to Eric Holder in March.

at
12 He's had plenty of time, but he didn't respond. She
13 also said that she'd submitted it to Taylor.

s
14 CARTER said, well why does my court have

nd
15 jurisdiction? And TAITZ tried to explain, (but our
16 intrepid reporter had difficulty following her logic.

ie
17 The best he understood is you have power to remove a
18 usurper. Because he's a usurper you have power. You

Fr
19 have the poser to remove the usurper).
20 TAITZ said that WEST said earlier in the hearing

om
21 that there would be a disaster for citizens to assert
22 their rights in any court. I was born in a country
23 without such rights.

Fr
24 She then discussed all the other dictators, which,
25 she said Obama was like all these other dictators, and

OCTOBER 5, 2009
WAVEYDAVEY REPORT
28
m
1 she gave her personal example of how her uncle was sent
co
2 to Siberia, the judges were puppets of the regime. Her
3 aunt tried to kill herself, even with two children, but
b.
4 she was saved, but her uncle was broken and eventually
5 died. This she said this is what happens when citizens
ija
6 have no rights.
7 She then brought it back to Obama and said, when I
lit
8 first heard him speak I knew the direction we were going
10
11
9 in, and I was horrified.
Po
gallery broke into clapping).
(At which point the peanut
TAITZ continued, I know that you (Judge CARTER), have

at
12 served in the military and have taken an oath. I hope
13 you will not take their rights away from the plaintiffs
s
14 and all other citizens. I hope you will enforce the

nd
15 statute.
16 CARTER then addressed the audience saying, I can

ie
17 assure you that I've experienced no pressure on making a
18 decision.
Fr
19 Addressing TAITZ, he said, apparently on your blog
20 you've encouraged people to contact this court. We have

om
21 had 40 to 100 calls a day. If there's any pressure,
22 it's from you.
23 ...[duplicate entry deleted]

Fr
24 ...
25 CARTER continued, what you are saying is that other

OCTOBER 5, 2009
WAVEYDAVEY REPORT
29
m
1 country that you grew up in, that's not this country. I
co
2 do not believe that our country is as corrupt as you
3 believe, and your personal experience would not be the
b.
4 same in this country. Most people are ethical and
5 honest. This is where we part company. My starting
ija
6 point is trusting.
lit
8 (At this point it's about 11:15.)
10
11
9
Po
KREEP gets to talk again, making the same case that he
made before, and then he also argues that in order to

at
12 impeach a president he must have been valid in the first
13 place, but because Obama didn't qualify, he can't be

s
14 impeached, because he's not really in office. Because

nd
15 he can't be in office because he's ineligible, therefore
16 everything the defense said about impeachment doesn't

ie
17 apply because Obama is not really president.
18 It's not a political question, KREEP said, it's a

Fr
19 legal question. The big question is, is he eligible.
20 If he's not, then he's not there in office. And if he's

om
21 not there in office then he can't be removed by
22 impeachment, because he's not there, because he's not
23 eligible.
Fr
24 CARTER said, so which plaintiffs have standing?
25 KREEP said, I only represent two, but under [Hollander]

OCTOBER 5, 2009
WAVEYDAVEY REPORT
30
m
1 Drake and Robinson have standing. All candidates for
co
2 office are damaged if there's any other candidate who is
3 not eligible.
b.
4 CARTER said, what is the injury in fact?
5 KREEP responded, the injury in fact is that there
ija
6 was not a fair election.
7 CARTER then discussed the two-party system and
lit
8 viability of third-party candidates, and expressed that
10
11
9
Po
he thinks having the ability for third-party candidates
is important, and then he said he still wants to know
why no one has raised this issue.

at
12 KREEP said some senators and representatives have
13 raised the issue, but not impeachment.

s
14 CARTER asked, well, did Congress avoid all this

nd
15 because of all these cases, all these 40 cases, or do
16 they avoid it because it's a case of first impression,

ie
17 or what?
18 KREEP responded that up until now all the cases

Fr
19 have been procedural and there's been no ruling on the
20 merits.
om
21 CARTER said, well, I'm most concerned with
22 standing, very concerned about standing.
23 KREEP then began to talk about the issue of the

Fr
24 Electoral College and Congress and what and how they can
25 address it.

OCTOBER 5, 2009
WAVEYDAVEY REPORT
31
m
1 CARTER interrupted him saying, I'm troubled I can
co
2 never get to that point in court. Tell me about
3 standing.
b.
4 KREEP said, well look this whole issue has been
5 going on for over a year, it's on people's minds, its
ija
6 festering.
7 Therefore, CARTER said, my issues are about
lit
8 standing justicability, jurisdiction. If I rule on
10
11
9
effect? Po
standing but not on other issues, what would be the
KREEP said, I think you should make rulings on as

at
12 many issues as possible, because if you deny the motion
13 to dismiss they'll appeal on that one issue and then

s
14 we'll be back here to address another issue and another

nd
15 issue, and it will go on and on.
16 KREEP then went back to the issue about citizens

ie
17 must be able to enforce requirements. We can't rely on
18 Congress, who only has the Electoral College.

Fr
19 KREEP then presented a quote "slippery slope"
20 argument saying if you are going to say that people

om
21 can't have standing to address this issue then what
22 other right will you say that on tomorrow?
23 KREEP acknowledged that this was a slippery slope,

Fr
24 but he said it's applicable here because then people
25 will start picking and choosing what rights to take away

OCTOBER 5, 2009
WAVEYDAVEY REPORT
32
m
1 next.
co
2 KREEP then said, because of this point, a
3 president's questioned place of birth, we have a
b.
4 constitutional issue that cannot be decided solely by
5 Congress.
ija
6 CARTER then essentially cut off further argument
7 saying that he needs more time. He did not make a
lit
8 tentative ruling today. He wants to consider the
10
11
9
and during the hearing. Po

arguments that have been made both in the written papers
He turned to plaintiffs and said, I'm most

at
12 concerned about standing.
13 To the defendants he said, I'm most concerned

s
14 about justicability, correct venue, political question,

nd
15 and how far do the courts go.
16 He turned back to plaintiffs and said, if I rule

ie
17 against you on standing, I would suggest ways to address
18 that issue in the future.

Fr
19 To the audience he said, your applause has not
20 influenced me at all, one way or the other.

om
21 To TAITZ he said, apparently you've encouraged
22 people to call me on your blog. Please discourage the
23 phone calls. They don't help. It was inappropriate for

Fr
24 you to do that. However, it won't bear on my decision.
25 He then stated, obviously you've had no scheduling

OCTOBER 5, 2009
WAVEYDAVEY REPORT
33
m
1 conference, but we'll stick by the dates previously set
co
2 for now.
3 He thanked everybody and the hearing ended.
b.
4
ija
6
lit
8
10
11
9
Po
at
12
13
s
14
nd
15
16
ie
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25

Barnett v. Obama - Report On 10-5 Hearing

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Barnett v. Obama - Report On 10-5 Hearing

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BARNETT V OBAMA HEARING

7 arrived. Then there was a recess. At 8:40 the judge

DEJUTE, and also Eric Sauzener (phonetic) from D.C.

12 WEST presented his motion. First he said he wanted to

14 was in his motion to dismiss; that is, anybody with a

15 political agenda and filing fees could contest the

16 qualifications of presidents if this was allowed to

17 proceed, which affects the balance of power.

18 He mentioned the other Obama cases and said, the same

19 issues there. If the president is forced to go through

20 depositions, and so on, for all a these various cases,

21 it would affect his ability to govern.

22 If even one judge decides that Obama is not qualified,

23 and a second decides that he is qualified, what then?

24 Chaos. It would affect the ability to conduct foreign

25 policy, nuclear disarmament negotiations, and so on.

Updated 10/5/2009 6:10 PM PDT

3 The president is the only office elected by all of the

5 Constitution makes this issue nonjusticiable. At that

little bit about quo warranto, and said if it were to --

if quo warranto were applicable at all, it would be okay

13 should be heard. However, quo warranto does not apply

15 Then DEJUTE began to address the Court, and he focused

16 on the sur-reply. He said he wanted to make two points.

17 Number one, the Ninth Amendment argument. He talked

19 Congress has the power to remove a president. The Ninth

20 Amendment is not a source of right when the Constitution

21 explicitly states otherwise. The Constitution granted

22 the right both to seat a president and remove a

24 The second point related to TAITZ's FOIA claim, that

25 the plaintiff has asked the Court to disregard the fact

Updated 10/5/2009 6:10 PM PDT

3 roundabout way. You have to follow the rules.

5 the standing issue."

7 injury in fact or particularized harm. Because of this

was a lot of discussion back and forth about the

Political Question Doctrine, and CARTER's focus was on

13 said, there's two issues: Number one, is this a

14 political question, and number two, walk me, (the judge)

15 walk me through the process of how this political

16 question will play out.

17 If what the DOJ says is true, what would be the

18 process to remove the president determined to be

19 ineligible? Is it part of the electoral college,

20 legislative process, or what? CARTER posed a

21 hypothetical. What if Schwarzenegger ran for president

22 and Congress was ruled by the Republicans. Would they

23 help him? Would they ignore the problem? Make that

24 analogy, CARTER said.

25 WEST said, it's a totally different situation between

Updated 10/5/2009 6:10 PM PDT

3 but we're past all that now.

7 First he talked about the 25th Amendment procedures in

that would apply here. Po

The 25th Amendment says what to

do when a president is incapacitated, and failure to

13 Secondly, he talked without the impeachment process,

14 referring to the Nixon impeachment proceedings and what

15 he said was, from both of these, the courts cannot be

17 WEST said the sole power is granted to Congress to

18 impeach. In fact, there's only two instances where the

19 phrase "sole power" is used in the Constitution, both in