Shouldn’t president honor a subpoena?

Maybe rule of law means different things for different people

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There has been considerable evidence in recent months that President Obama, like President Nixon before him, sees himself as above the law.

Take a look, for instance, at the “recess appointments” he made while the Senate was NOT in recess. Of course, this follows the appointment of numerous “czars” to create policy for the administration without even the pretense of Senate consent. Such presidential hubris was not invented by President Obama, but it has been perfected by him. He has appointed more unconfirmed czars than any president in history.

But the president’s response Thursday to the hearings in an obscure Georgia court where his presidential eligibility was being challenged suggests that the imperial Russian title (a derivative of the Roman Caesar) has been bandied about too loosely and now should be reserved exclusively for Barack Obama — “the man who would be czar.”

In short, the president simply did not show up in response to a subpoena to answer questions about whether he is eligible to appear on the ballot in the state of Georgia for re-election to the office he currently holds.

Now I understand the president does not wish to be bothered with having to respond to the questions of citizens about whether or not he meets the constitutional requirements to serve as president. That is his right, and is merely a political consideration.

But when the president says he does not have to answer the questions of a court that is acting in accordance with its legal authority, then we have a problem that goes well beyond politics and enters into the realm of constitutional law. At least, it should. It remains to be seen exactly how this drama will play out, however, and there is always the possibility that the courts will ultimately provide cover to the president and find the challenges “moot,” “stale,” “without standing” or otherwise irrelevant.

In the meantime, the drama played out last week in fine fashion. The so-called “birthers” finally got their day in court, and the president decided he just couldn’t be bothered. Too busy being president, as his attorney argued.

That attorney, Michael Jablonski, responded to the legal challenges of several Georgia voters by just plain refusing to participate in the court proceedings. He announced that he and his client, the president of the United States, would simply “suspend further participation” in the Georgia court case and that President Obama would ignore a subpoena to appear.

When President Nixon threatened to ignore court orders, he was threatened with impeachment. It doesn’t matter what the topic at hand is in the courtroom — when the court summons you, it behooves you to appear. This is not less true in the case of a president, the man who is responsible for enforcing the laws of the nation, but more so — for if the president thumbs his nose at lawful courts hearing lawful pleadings, then his legal authority is undermined and so is the rule of law.

Nor can the president rightfully decide to ignore this particular case because he and his attorneys think it has no merit. That is the judge’s decision, not theirs. Nor is it relevant that the underlying legal matter in this case concerns President Obama’s eligibility. Regardless of the topic at hand, if the president ignores properly formulated judicial proceedings in any jurisdiction, it must raise doubts about his fitness — not eligibility — for office.

The hubris of the president is evident in the filings of his attorney. In their effort to quash the subpoena, it was argued not that the subpoena was illegal but that it was “unreasonable.” Why? Because the president had already answered all the questions that could be asked about his citizenship.

Except he has not — especially not about whether he is a “natural born citizen.” The hearing, in fact, would have been the first opportunity for the president to actually put in evidence the documentation of his citizenship. But as with all evidence, it would be subject to dispute, and dispute is the one thing that the president and his attorneys do not want to allow. The motion to quash also does not address the central issue of who is a “natural-born citizen,” but just assumes that Barack Obama is one without stating why.

Attorney Jablonski also presents the novel argument that states have nothing to do with the eligibility of a presidential candidate. This suggests a lack of historical and constitutional knowledge by the attorney which is appalling. The president is, in effect, elected by the states through their electors in the Electoral College. The states have a vested interest in verifying the eligibility of anyone who seeks to be president, and Georgia specifically has a law to protect that right.

Once Judge Michael Malihi of the Office of State Administrative Hearings ordered the president to appear, the shocked Jablonski went begging to Georgia’s secretary of state to intervene on the grounds that “there is no legitimate issue” to be decided by Georgia.

The secretary of state, Brian Kemp, tried to enlighten Mr. Jablonski about the rule of law. He informed the lawyer about the applicable Georgia laws that were being followed in Thursday’s hearing, and warned Jablonski that “if you and your client choose to suspend your participation in the OSAH proceedings, ... you do so at your own peril.”

In other words, if you don’t show up to present your case, don’t be surprised if the judge rules against you. Those who were present in chambers reported that Judge Malihi intended to do just that when the president’s attorney failed to appear, but was persuaded by attorneys for the plaintiffs to let them put their evidence on the record.

Thus, on Thursday, President Obama’s defense table was empty and Judge Michael Malihi heard evidence only from lawyers for the three sets of plaintiffs.

There were actually three distinct cases presented as well, and though it would be a valuable endeavor to analyze the evidence presented by each, a brief summary will have to suffice.

One of the attorneys, Van Irion of Liberty Legal Counsel, focused his entire case on the constitutional provision that the president must be a “natural born citizen.” He used the 1875 ruling in Minor v. Happersett as the centerpiece of his case, and argued that the Supreme Court had declared a natural-born citizen to be one born on U.S. soil to two U.S. citizen parents. He presented the uncontested evidence that President Obama’s father was a British citizen and native of Kenya at the time of the president’s birth and argued that therefore, the president was not eligible for his office.

Much of Irion’s argument was echoed by J. Mark Hatfield, attorney representing two of the plaintiffs.

The third attorney, Orly Taitz, the eccentric polylingual dentist from California, was able to present evidence of a much less reliable nature, but which was unchallenged since president Obama and his attorneys chose not to participate. In particular, Taitz produced witnesses who claimed that President Obama’s long-form birth certificate is a digital forgery, that he is using a Social Security number that was not properly issued to him, and that he has had multiple citizenships including in Indonesia, where he resided with his mother and stepfather as a child.

What the judge made of such evidence is unknown. He appears to be bending over backwards to be respectful to President Obama, and did not entertain suggestions by the plaintiffs’ attorneys that the president should be held in contempt for failing to participate in the proceeding. He set a deadline of Feb. 5 for the attorneys to file briefs in the case, which would seem to allow the president an opportunity to respond to the evidence presented in court without actually having attended.

But one way or the other, whatever Judge Malihi decides, we have not heard the last of this case.

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