In the final months of the 2008 presidential race, Sen. John McCain’s (R-Ariz.) campaign learned of a lawsuit filed in Pennsylvania that asked the state to strip Sen. Barack Obama (D-Ill.) of the Democratic nomination on suspicion that he was not an American citizen. The complaint for declaratory and injunctive relief was filed by Phil Berg, a former deputy state attorney general who left government in 1990 for a series of gadfly political campaigns. His last round of notoriety had come when he filed RICO complaints against George W. Bush, Saddam Hussein and multiple members of the Bush administration for “accountability” for the 9/11 attacks. Still, Berg’s complaint had gotten glancing local media attention, and the Democratic National Committee’s counsel had filed a motion to dismiss it. One lawyer who was doing some work for the campaign was tasked with reading Berg’s lawsuit and gauging its chances of success.
“The conversation was along the lines of ‘this is idiotic, but explain to me why,’” said the lawyer, who spoke under condition of anonymity to TWI. “I looked at whether the lawsuit was going to be dismissed. I said yes.”
Berg’s main problem was the one that has bedeviled the the small, but growing, number of lawyers and amateur attorneys who have filed frivolous lawsuits against President Obama on the “question” of his American citizenship. He and they have run up against the doctrine of standing, which requires plaintiffs to prove that they have been or will be harmed by the law that they’re challenging. Like the people who challenged McCain’s citizenship in 2008 and 2000, or the people who challenged Dick Cheney’s right to run for vice president because he, like George W. Bush, resided in Texas, “birther” plaintiffs have failed again and again to get their cases heard because they lack standing.
“We monitored the progress of these lawsuits against the Obama campaign,” said Trevor Potter, a Washington attorney who served as general counsel to the 2008 and 2000 McCain presidential campaigns. “The McCain campaign faced a series of lawsuits like this, too, alleging that he could not be president because he was born in the Panama Canal Zone. Both campaigns took the position that these plaintiffs lacked standing.”
But the flawed conception of the many “birther” lawsuits, coupled with the inexperience and foul-ups of “birther” lawyers, have only fed the frenzy over Obama’s legitimacy to serve as president of the United States. A survey of the lawsuits filed against Obama reveals a reliance on widely debunked rumors, bogus stories sourced back to web sites, affidavits from “experts” who refuse to provide credentials or even their real names, and frequent and blatant misunderstandings of basic constitutional law. The dismissal of “birther” lawsuits has allowed conspiracy theorists to believe that the information in those suits is accurate–a belief that manifests itself in the emails, phone calls, and town hall meeting rants that have pushed the theories into the mainstream media and the halls of Congress.
While they ruled out any chance of the ‘birther’ lawsuits holding up in court, lawyers for the McCain campaign did check into the rumors about Obama’s birth and the assertions made by Berg and others. “To the extent that we could, we looked into the substantive side of these allegations,” said Potter. “We never saw any evidence that then-Senator Obama had been born outside of the United States. We saw rumors, but nothing that could be sourced to evidence. There were no statements and no documents that suggested he was born somewhere. On the other side, there was proof that he was born in Hawaii. There was a certificate issued by the state’s Department of Health, and the responsible official in the state saying that he had personally seen the original certificate. There was a birth announcement in the Honolulu Advertiser, which would be very difficult to invent or plant 47 years in advance.”
“Birther” lawyers and bloggers, who gained an unexpected prominence in the mainstream media, have consistently denied Hawaii’s own records of Obama’s birth. They have also built up a corpus of information which, they argue, would invalidate Obama’s claim on the White House even if he was born in the United States. These rumors, and the inability of “birther” lawyers to test them in court, have proven pervasive enough to fuel the conspiracy theories.
Read the full story at the The Washington Independent, The Colorado Independent’s sister site in D.C.