Thursday’s blog outlined how we shall examine assertions that litigation to challenge the legitimacy of Trump’s Presidency is the same as “birther” litigation challenges to President Obama’s occupancy of the Oval Office.
Are there similarities between Trump removal litigation and “birther” cases?
Yesterday differences between the reasons—actually, one reason—upon which “birther” litigation was based and the reasons—plural—presented by advocates for Trump removal were shown.
Today we shall look at whether the facts supported the “birthers” and whether the facts support the Trump removal effort.
“Birther” litigation claimed Barack Obama’s presidency was illegitimate because President Obama was not born in the U.S. and thus was ineligible to be President.
The “birther” litigation was based upon conjecture. Trump was a “birther” and demanded President Obama produce his birth certificate. Others quoted President Obama’s paternal grandmother as saying her grandson was born in Kenya. The future President was enrolled in elementary school outside the U.S.:Indonesia, home of his stepfather. Finally, some asked if “Obama really transferred into Columbia for undergrad, why doesn’t anyone remember him?”
President Obama produced his long-form birth certificate. Also, his birth was announced in a local newspaper, a difficult matter to falsify unless one embraces quantum physics and the possibility of time travel, so that local newspaper could be altered. His paternal grandmother had been taken out of context: she never claimed he was born in Kenya. Where a child attends a couple of years of elementary school is irrelevant to a claim the child was born someplace else. College classmates: other students remembered him, including his roommate at the time. Barack Obama’s name was in the byline of an article of a campus publication. He was listed in the student directory. Another aspect that people miss is that Columbia’s enrollment was nearly 20,000. Barack Obama transferred from Occidental. First year of undergrad students, students, dumped into a strange place with other strangers, are keen to make friends. A transfer student has to meet people who already have formed an important bond. A transfer student can be distanced from others. That was true at my alma mater, DePauw University, and the student body numbered about 2,200 in a town with a population of fewer than 6K.
As to Trump removal, the facts that the margin of victory in the Electoral College was produced by illegal acts multiply daily.
In Bailey et al v United States, a case docketed by the Supreme Court, number 16-1464, (and dismissed two months ago) named Respondents included Trump, Mike Pence, and Paul Ryan. They were “party opponents,” whose statements are not considered “hearsay.” F.R.Evid. 801(d)(2)(A); United States v. Nixon, 418 U.S. 683, 700-01, 94 S.Ct. 3090, 3104, 41 L.Ed.2d 1039 (1974). Proponents of such evidence need only show by a preponderance of the evidence that the opposing party made the statement. United States v. Brinson, 772 F.3d 1314, 1320 (10th Cir. 2014) (Facebook messages deemed admissible as admissions of a party opponent.) Trump, Pence and Ryan made statements in which they acknowledged Russia interfered in the 2016 elections. Speaker Ryan, when asked in January if Russia interfered in the 2016 elections said “of course they did.” Trump, during one debate with former Secretary of State Clinton invited Russian hackers to hit Democratic National Committee computer servers to obtain former Secretary Clinton’s emails. Trump later acknowledged Russia was behind the hacking of Democrats during the presidential election. Shear, et al., “Trump Says ‘I Think It Was Russia’ That Hacked the Democrats,” The New York Times, Jan. 11, 2017, p. 1.
Wait—there’s more! Seventeen United States intelligence agencies obtained evidence prior to the general election in 2016 that Russia, through cyber intrusions and publication of disinformation, was attempting to influence the outcome of the 2016 general election. (“17 Intelligence Agencies affirm that Russian Government directed Election Interference,” npr.org, Jan. 5, 2017.) Congress noted these findings in the “Countering America’s Adversaries Through Sanctions Act,” 22 U.S.C.A. sec. 9501(6): “On January 6, 2017, an assessment of the United States intelligence community entitled, ‘Assessing Russian Activities and Intentions in Recent U.S. Elections’ stated, ‘Russian President Vladimir Putin ordered an influence campaign in 2016 aimed at the United States presidential election.’ The assessment warns that ‘Moscow will apply lessons learned from its Putin-ordered campaign aimed at the U.S. Presidential election to future influence efforts worldwide, including against U.S. allies and their elections processes.”
Russian cyber intrusions occurred, via the insertion of malware in computer systems utilized in primary elections and general elections conducted by the state governments of “swing” states, as noted in a 12/29/16 report of the F.B.I. and DHS (www.us-cert.gov/sites/default/files/publications/JAR_16-20296A_GRIZ...).
Trump emphatically demanded President Obama produce a birth certificate to establish President Obama was born in the U.S. President Obama did.
On the other hand, Trump has refused to produce income tax returns, the schedules to which would indicate how much Russian banks are into Trump, but the known facts establish collusion. Speculation about the contents of income tax returns would seem too “birther”-esque.
In short—the “birthers” claims were not supported by facts. Claims that Trump’s occupancy of the Oval Office was via illegal means are supported by an ever-increasing body of facts.
The Constitution specifies two ways to remove a sitting President: impeachment (Art. II, sec. 4) and action of the VP and others when the President is unable to perform the duties of office (Amend. XXV, sec. 4). Federal courts have the authority to remove a President whose margin of victory has been obtained by illegal means. (See Donahue v. Board of Elections, 435 F.Supp.957 (E.D.N.Y. 1976)).
Tomorrow we shall look at why courts dismissed “birther” lawsuits.