A California judge today tentatively scheduled a trial for Jan. 26, 2010, for a case that challenges Barack Obama's eligibility to be president based on questions over his qualifications under the requirements of the U.S. Constitution.
If the case actually goes to arguments before U.S. District Judge David Carter, it will be the first time the merits of the dispute have been argued in open court, according to one of the attorneys working on the issue.
In a highly anticipated hearing today before Carter, several motions were heard, including a resolution to long-standing questions about whether attorney Orly Taitz properly served notice on the defendants, which she had.
In a second ruling, Carter ordered that attorney Gary Kreep of the United States Justice Foundation can be added to the case to represent plaintiffs Wiley Drake and Markham Robinson, who had been removed by an earlier court order. Drake, the vice presidential candidate for the American Independent Party, and Robinson, the party's chairman, also were restored to the case.
But the judge did not immediately rule on Taitz' motion to be granted discovery – that is the right to see the president's still-concealed records. Nor did Carter rule immediately on a motion to dismiss the case, submitted by the U.S. government, following discussion over Taitz' challenge to the work of a magistrate in the case.
The judge did comment that if there are legitimate constitutional questions regarding Obama's eligibility, they need to be addressed and resolved.
Carter ordered a hearing Oct. 5 on the motion to dismiss and ordered arguments submitted on the issue of discovery.
If the case survives that challenge, a pretrial hearing has been scheduled for Jan. 11 and the trial for two weeks later.
The case would be the first time, according to Kreep, that the actual merits of the dispute will have been heard in open court. A multitude of such disputes have been rejected out of hand by various state and federal courts. Even the U.S. Supreme Court repeatedly has rejected urgent appeals to hear the evidence.
The suit alleges Obama is actually a citizen of Indonesia and "possibly still citizen of Kenya, usurping the position of the president of the United States of America and the commander-in-chief."
has reported on dozens of legal challenges to Obama's status as a "natural born citizen." The Constitution, Article 2, Section 1, states, "No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President."
Some of the lawsuits question whether he was actually born in Hawaii, as he insists. If he was born out of the country, Obama's American mother, the suits contend, was too young at the time of his birth to confer American citizenship to her son under the law at the time.
Other challenges have focused on Obama's citizenship through his father, a Kenyan subject to the jurisdiction of the United Kingdom at the time of his birth, thus making him a dual citizen. The cases contend the framers of the Constitution excluded dual citizens from qualifying as natural born.
Complicating the situation is Obama's decision to spend sums estimated over $1 million to avoid releasing a state birth certificate that would put to rest the questions.
WND has reported that among the documentation not yet available for Obama includes his kindergarten records, Punahou school records, Occidental College records, Columbia University records, Columbia thesis, Harvard Law School records, Harvard Law Review articles, scholarly articles from the University of Chicago, passport, medical records, files from his years as an Illinois state senator, his Illinois State Bar Association records, any baptism records, and his adoption records.
In the U.S. Justice Department's motion to dismiss, attorneys didn't address the concerns directly, but instead focused their efforts on technical procedures, suggesting the matter can't be decided in court and that the dozens of plaintiffs cannot demonstrate they have been injured by having Obama in the Oval Office.
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"It is clear, from the text of the Constitution, and the relevant statutory law implementing the Constitution's textual commitments, that challenges to the qualifications of a candidate for president can, in the first instance, be presented to the voting public before the election, and, once the election is over, can be raised as objections as the electoral votes are counted in the Congress," wrote Assistant U.S. Attorneys Roger West and David DeJute. "Therefore, challenges such as those purportedly raised in this case are committed, under the Constitution, to the electors, and to the Legislative branch."
President Obama's defenders also said they would file a motion seeking to block any discovery of evidence at this point.
Kreep said said his addition to the case probably will mean additional arguments over the president's eligibility.
Among the long list of plaintiffs are former ambassador and presidential candidate Alan Keyes and longshot vice-presidential candidate Gail Lightfoot, both of whom ran in 2008.
Justice officials say because neither had a mathematical chance at winning, they were not directly harmed by the election of Obama.
But among the issues that appear to be looming is a claim that Obama's actual birth certificate from Kenya has emerged.
As WND reported over the holiday weekend, Lucas Smith, the man who tried to sell an alleged Barack Obama Kenyan birth certificate on eBay, filed court papers insisting – under threat of perjury – that the Obama birth certificate in his possession is the genuine article.
The document is alleged by Lucas Smith to be Barack Obama's original, authentic birth certificate from Kenya.
Taitz posted on her blog Smith's declaration, which claims he obtained the alleged birth certificate from Coast General Hospital in Mombasa, Kenya, and insists it's real.
"The true and correct photocopy of the birth certificate obtained is attached to this affidavit as Exhibit A," the declaration reads. "I declare, certify, verify, state and affirm under penalty of perjury under the laws of the United States of America that the foregoing statements of fact and descriptions of circumstances and events are true and correct."
Smith's affidavit, which includes a copy of the certificate, has been filed with Carter, who works in the Central District of California.
In his filing, Smith declares that he traveled to Kenya in February and paid off a military officer in order to obtain a copy of the birth certificate from Coast General Hospital in Mombasa. The declaration also states that the hospital administrator signed and sealed the copy, which indicates Obama's birth in Africa on Aug. 4, 1961, at 7:24 p.m.
As WND reported, Smith released a video of the document he claims is a copy of Obama's hospital birth record, though WND's own investigation failed to substantiate the document's authenticity..
WND first reported earlier this year when Lucas Smith, a former resident of Cedar Rapids, Iowa, and known by the eBay handle "colmado_naranja," claimed to have a document proving Obama's birth in Mombasa, Kenya.
After promising to reveal the document to WND, Smith then dropped communications with a team of people offering to help him verify the document, only fueling the belief the sale – and therefore the alleged document – was a scam.
WND followed Smith's ongoing saga as "colmado_naranja" as he attempted several times to sell the document, or photos and stories surrounding it, on eBay, only to have the auctions repeatedly removed by site administrators.
WND also launched an investigation into "colmado_naranja," which led through several online aliases and reported collaborators, including Dawnella Wilson, "InspectorSmith" and, eventually, Lucas Smith.
Smith, whose background includes a lengthy criminal record and a reported attempt to sell his kidney to a man in need of organ transplant, nonetheless insists that his motives are above board, even if his past looks dubious.
"I do have a background. I've made mistakes in my life," Smith told WND in an e-mail. "It took a guy like me to go and get tangible proof about Obama. I don't mind breaking a few laws or policies here and there. I don't mind paying the military in foreign countries to look the other way ... The military [in Africa] will grant you access to anything for just a few dollars. People are starving. So yes, it takes a guy like me to get things done once in a while."
