In response to the claims that he was not born in the United States, the White House released an electronic copy of what it claimed was Barrack Obama's Hawaiian birth certificate. In response, "Birther" groups found experts who claim that it is a forgery. Then the President's attorney made a statement in court in New Jersey which some took to be an admission that the document was fake, and on that basis started claiming that he had committed fraud by forgery and ought to be impeached. This series explores the issues in that claim.
None of this examines the evidence; it examines the relevance, whether the question of authenticity of the published birth certificate matters in any legal sense.
This originally appeared in weekly installments in June and July of 2012.
In the early stages of the controversy over whether President Obama is validly a "natural born citizen" of the United States as required by the Constitution (for more, see previous articles), the White House released a copy of a Hawaiian birth certificate bearing his name. Rather than settle the matter, though, this inflamed it, as doubters marshalled evidence that it was a forgery, a photoshopped facimile of an allegedly non-existent certificate. Attackers filed suit in several states, including here in New Jersey, declaring that Barrack Obama was not a legal candidate and should not be listed on the ballot, and were prepared with expert witnesses to demonstrate that the released birth certificate was a phony. Some are calling for impeachment proceedings for fraud.
An attorney named Hill defending the President here in New Jersey made a statement in court which got all the evidence against the birth certificate excluded, which was misunderstood by some non-lawyers to be an admission that the document was a forgery.
This raises several questions. Why is it not relevant whether the birth certificate is fake? Why will the court not hear evidence to that effect? If it is fake, why hasn't Congress begun impeachment proceedings? All of this is very confusing, because most Americans do not understand either the legal system or the electoral system.
Hill's claim is that the document is "neither an original nor a certified copy" of the President's birth certificate, and that she, as the President's attorney, was not entering it into evidence. The plaintiffs want it brought into evidence by the President so they can demonstrate that it is invalid; but its validity is only relevant in court if the President is relying on it to prove something in that court, and he is not. The plaintiff cannot tell the defense what evidence it must present; the defense gets to decide that for itself.
That the electronic copy is "neither an original nor a certified copy" is important; that has meaning under the Rules of Evidence. One of those rules is that the best available evidence must be presented. A carbon, photocopy, or other duplicate of a letter is only admissible if the original cannot be obtained. Birth certificates are legal documents, but only if they are the original document (that is, not a copy) or a "certified copy", one produced by the Registrar of Births in the jurisdiction in question and attested as a true and correct copy, usually by affixing both a signature and an embossed seal. An electronic image does not have an embossed seal, and electronically certified documents have not yet become government standards. Being effectively a photo, the electronic image of a birth certificate would only be admissible in court if it could be demonstrated that it was impossible to get the State of Hawaii to issue a genuine certified certificate. Thus all Hill claimed in court was that the image of the document was not admissible under the Rules of Evidence, and she was not submitting it for any purpose at all, and therefore it was meaningless to attack an electronic document that was not presented as legal proof of anything.
I once had a friend who used his older brother's drivers license to buy beer. Eventually, of course, he was old enough to buy beer himself, and he no longer used the illegitimate identification. Yet one could imagine someone seeing him in the liquor store and claiming that he was underage, asserting that some time back he presented false identification. The fact that my friend had used that false identification does not mean he was not of age, even at the time that he used it--he might have used it because he did not have his own with him. If he presented the fake ID when challenged, then it would be legimate to challenge the ID; but if he presented his own license, the fact that he had presented something else on a different occasion under different circumstances is irrelevant.
That's the situation here: Hill is not claiming that the image of a birth certificate earlier released by the White House proves anything, and therefore the plaintiff has nothing to attack.
That leads, though, to the next, and more difficult question, which is what proof Hill is offering instead--and the answer is, she is claiming that no proof need be offered, because candidates do not have to prove their eligibility to be entered on the ballot in New Jersey. This sounds absurd on its face. If true, it means that anyone could be listed on the ballot for President of the United States, at least in this state, and probably in most others, because election procedure law is not that much different. But why she can make this claim?
We examined the statement made by the President's attorney, Hill, to the effect that the controversial image of a birth certificate was not being introduced as evidence of the President's eligibility to be listed on the ballot. Hopefully that confusion has been resolved. The next confusion, though, is that she claims that no evidence is necessary, because candidates are not required under New Jersey law to prove that they are eligible for the office in order to be listed on the ballot.
The fundamental reason she is right is that we Americans technically do not elect our President. We elect the people who will do so. That is the point of the "Electoral College" and the counting of "Electoral Votes" on Election Day.
The system has its roots in a time when it would not be possible for every reasonable responsible voter to meet and personally assess every Presidential candidate. The candidates could not reasonably travel even to all the major cities of all the states in the few months prior to the election, and the voters could not come to the candidates. Media were known to be biased; it was part of their job to be biased, to espouse opinions concerning which policies were, in the view of the editors, most likely to bring the kinds of benefits the editors believed their readers needed. However, a rational, intelligent voter should not vote for an elected official because of what the local newspaper said about him; he should vote for someone he had personally evaluated, or who had been personally vetted by someone he trusted.
Thus the Electoral College system was designed so that you, the voter, could vote for someone you trusted--someone with whom you could have had a conversation, who told you what he valued, who he thought represented those values, and exactly what he wanted to see in a President. You would send him to Washington, and he would meet with similar Electors from your state and the other states, and they would discuss and vote and choose a President. Originally you did not vote for George Washington--you voted for John Smith, who had come to your town and held a meeting in which he spoke of how Washington was a good man exemplifying certain traits and policies, and if you voted for Smith, Smith would do what he could to ensure that Washington became President, or in lieu of Washington, someone who had the same values, policies, and traits. He was not even bound by that promise--he could change his mind and vote for John Adams, if between his election and his voting something happened that caused him to believe Adams was the better man. State laws requiring Electors to vote for their promised candidate on the first ballot were a later development, and even later was the removal of Electors' names from the ballots--changing them from "John Smith (Supporter of George Washington)" to "George Washington Elector John Smith" to simply "George Washington". Technically, though, you do not vote for Barrack Obama or Mitt Romney; you vote for local Electors who are legally required to vote for their assigned candidates on the first ballot.
Thus when Barrack Obama asks you to vote for him, he is technically asking for you to elect the Electors who will vote for him. He is not really on the ballot at all; his name is not more than a banner under which hundreds of electors nationwide are running, not more meaningful than if it said "Democratic Party Presidential Candidate", a promise that they will vote for him if you vote for them. Hill is correct: if an Elector wanted to be placed on the ballot with the promise to vote for Mickey Mouse, no proof would be needed that Mickey Mouse was an eligible candidate, only that the Elector was. The elector can name any candidate, or no candidate.
Thus, at least in New Jersey, whether a man is qualified to serve as President of the United States is not at issue in the placement of a candidate's name on the ballot.
That opens the next question: who is responsible to determine whether a candidate is eligible?
We noted that whether a candidate was eligible to serve in the office of President was not relevant to whether his name could appear on the ballot, because voters don't vote for Presidents, we vote for Electors who choose them. That, then, raises the issue as to who determines the eligibility of any candidate.
Although the answer is not specifically stated anywhere, it appears to be that this job falls to the Electors themselves. They are tasked with choosing a President who is the best man for the job and meets the stated qualifications. Remember, originally you voted for the man you thought would choose the best President, not for the man you thought would be the best President, even though Electors campaigned by arguing on behalf of their chosen candidates.
To us it seems ludicrous that these obviously partisan politicians would be given such responsibility; to the Founding Fathers it was the most rational thing in the world--quite literally. Men like Jefferson had what we might term a "religious" belief in something called Reason, to the point that it was generally accepted that any group of rational educated people discussing any issue would eventually agree unanimously on the one most reasonable answer to any problem. Voter qualification laws existed to ensure that only rational educated people voted; the concept of majority rule was less about individual self-determination and more about the notion that eventually everyone would hold the One Rational Viewpoint and thus the majority must already have reached it once the issues have been discussed. Jefferson himself saw no use for Supreme Court oversight of legislation, because he believed that a legislature of rational educated men would never pass an unconstitutional law. Thus in their view, merely to have stated "These are the requirements" would be sufficient; the Electors themselves would never elect anyone they did not know was qualified.
We do not see it that way. Our rational men are filled with self-interest--how to win votes, how to retire comfortably, how to use the system. We don't expect them to do what is best for the country; we don't even want them to do that. We want them to do what is best for us--our state, our city, our gender, our economic class, our race, our religious group, our business. In politics, we are all laissez-faire capitalists, believing that if everyone advocates for his own selfish interest the best possible world will emerge. The system is built on an assumption of altruism and rationality. It works well despite this.
If the responsibility falls to the Electors, to whom are the Electors responsible? That would be you--the voters. If you believe that an Elector candidate would vote for a Presidential candidate whom you believe is not qualified, you should vote for a different Elector. Ultimately the law in the United States is enforced by its people, people who want to follow the law and have it enforced. Those who nominated, supported, and elected Barrack Obama expressed their opinion that he was qualified. They may have been ill-informed, but there does not appear to be an appeal from their decision.
As we noted, it is moot in this case--Barrack Obama does appear to qualify as a "natural born Citizen" under the Constitution, relevant case law, and applicable statutes. There might be other reasons to oppose his Presidency, but this one fails.
Is it possible that one of those reasons might be that he committed criminal fraud by publishing a forged Hawaiian birth certificate?
Granting that Barrack Obama is a natural born citizen as required by the Constitution, and supposing that the birth certificate released by the White House is a forgery (which is not admitted by the President's attorney despite misunderstandings otherwise), the question is raised whether he can be impeached for committing fraud by forgery.
The critical issue is whether he committed an impeachable offense--and while the Constitution's rather vague statement that a President can be impeached for "high crimes and midemeanors" appears to mean, in the words of former House Minority Leader Gerald Ford, whatever the current House of Representatives thinks it means, the fact that a Bill of Impeachment must get a majority vote in the House and a two-thirds supermajority in the Senate is an impediment to any effort to impeach any President. It is serious business, and will only be undertaken if Congress believes there is clear evidence of a serious crime. That leads to our list of problems.
The first problem is whether it is indeed a forgery; that's a question of fact, but judges have ruled that there is a prima facie case for that conclusion. That, though, only leads to the second problem, which is a considerably bigger one: who forged the document, and who knew it was a forgery? It is entirely possible that someone at the White House called Hawaii and asked for a copy of the birth certificate, and that someone in Hawaii could not find it--and who is going to tell the President of the United States that his birth certificate is missing? It is possible that the document was lost somehow, not properly handled decades ago. It is even possible that he was not born in Hawaii but his family always told him that he was--after all, how do you know where you were born, but by what you are told? It may be that the birth certificate was forged before it reached the White House, and no one at the White House realized it. For the President to have committed a crime, he would have had to use the document knowing it to be forged.
There is an even bigger obstacle, though, to the notion of convicting him of criminal forgery: for what official use did he present the document? As far as it appears, the document was never presented in court, never presented to any official government agency, never used in any law context whatsoever. Rather, it was published on a web site for people to view. That is, it appears to have been used in a political ad to counter a political attack. If a politician used a falsified image in a political ad to make a claim about himself, that should not surprise us; it might be unethical and offensive, but it is not illegal. Some would say that lying about yourself to get elected is standard procedure.
So we do not know that the birth certificate released to the public is a forgery, and even if it is we do not know if the President or any of his top aides were aware of that before it was released, but even if we assume all the worst possible interpretations, we have a President who lied to the voters but did not commit a crime in doing so.
Just as we resolved the issues concerning what President Obama's lawyer said in court in New Jersey and why that was not an "admission" that the online birth certificate was a forgery, his detractors have misinterpreted another statement made by another Democratic Party attorney in another case in another state, Tennessee. The claim is that
...the Democrat Party has finally admitted Barack Obama is not qualified to be president of the United States....(in a web page entitled Dems Admit Obama's Not Eligible).
Perhaps everyone, and certainly everyone who attempts to be a journalist or interviewer or commentator on current events, should at some point print these words in a prominent place and look at them every day until they are both ingrained in the mind and fully comprehended: "I know that you believe that you understand what you think I said, but I am not certain that you realize that what you heard was not what I meant." The quote from the case on which this conclusion was based, contained in the article to prove this supposed admission, reads:
…Defendants [the Tennessee Democrat Party and the Democrat National Committee] assert that the Tennessee Democrat Party has the right to nominate whoever it chooses to run as a candidate, including someone who is not qualified for the office.These authors seriously need either to learn to understand what lawyers mean when they speak or find someone who is a native student of the English language who can translate for them. The quote from the case says nothing at all similar to what is asserted from it, and either the author is stupidly misunderstanding the words or he is intentionally obfuscating their meaning. Charity prefers to believe in stupidity over deception; it is easier to excuse, as it it unavoidable.
Consider the quote from the case, what the defendants actually asserted, remembering that they are defending themselves against a claim that they do not have the right to place President Obama's name on the ballot. That point is important. It means that they are not trying to prove they have that right; they are assuming the right. The plaintiffs in this case are trying to prove that they do not have the right to do this. There is a presumption that the defendants have the right to place the name on the ballot, and the plaintiffs are attempting to prove otherwise. The plaintiffs claim that no candidate may be placed on the ballot who is not eligible to serve in the office; that is an essential element in their case, because if that is not true then it does not matter whether Obama is ineligible to serve. If plaintiffs can win on that point, they still have to prove that Obama is not eligible; but if they lose on that point the question of his elibility never arises.
Thus what the defendants are asserting is a simple line in the sand, that the plaintiffs are wrong on this first element: anyone can be placed on the ballot, whether or not eligible; it is not up to regulators in Tennessee to determine the eligibility of Presidential candidates, thus not an issue.
This is exactly the same point already covered concerning New Jersey--that voters do not vote for Presidents but for members of the Electoral College, who in turn are charged with the responsibility to select a President from among those they believe are eligible. Mickey Mouse can be listed on the ballot; so could Saddam Hussein, or Julius Caesar. The defendants are only asserting what we already recognized, that the name on the ballot is not more than a banner to get people elected who in another time would have been the ones you actually knew and trusted but in our time are nearly anonymous party appointees who have promised to support a man who has by media manipulation created the illusion that you know and can trust him. Obama's name can appear on the ballot because his name is barely relevant; the ballot could read, "The as yet unspecified selection of the Democratic National Committee" and have exactly the same meaning. The defendants are asserting that they could have done that, could have placed no name on the ballot at all, or any name of their choosing.
Perhaps, given more recent laws requiring Electors to support their promised candidate on the first ballot, laws need to be passed creating ballot requirements for the promised candidates; but those laws do not exist, because that is not how the system was designed to work. Meanwhile, any argument that Obama is not eligible (the bulk of which we have already dismissed) must be made to the Electors who support him, as it is their decision whether he is eligible.