BERG FILES MOTION FOR EXPEDITED DISCOVERY, SEEKS DEPOSITION OF BARACK OBAMA AND HOWARD DEAN BY END OF MONTH
At 8:55 this evening, and as promised weeks ago, Philip Berg filed a Motion for Extensive and Expedited Discovery in the Philadelphia federal court where, a little more than two weeks ago, he filed suit contesting Illinois Sen. Barack Obama’s constitutional eligibility for the presidency.
Per this evening’s motion, Berg is seeking results on two fronts: First, that Sen. Obama and DNC Chair Howard Dean sit for depositions at the courthouse in Philadelphia running no less than three hours in length and presided over by a court-appointed Special Master; and second, that the defendants–Obama, the DNC and the Federal Election Commission–turn over documentation connected with the vetting process and the background of the Democratic Party nominee. Upon receiving confirmation that Obama and the DNC have been served with the motion–the U.S. Attorney’s office has entered appearance on behalf of the FEC–Berg plans to petition the Hon. R. Barclay Surrick for an immediate telephone conference on the need for the discovery process to begin and move along as quickly as possible.
“In the interest of expediency,” Berg said over the telephone as he drove to a air freight depot near Philadelphia International Airport to ensure that the materials were sent to Obama and the DNC as soon as possible, “back when we had the hearing for the temporary restraining order, I asked Judge Surrick if we could have a conference call for expedited discovery, and he said yes. This needs to be handled quickly. Listen, more and more I believe we’re correct on this, and if we are then Obama cannot be president, and the United States of America will be headed toward a constitutional crisis.”
Berg is asking for a court order that Barack Obama and Howard Dean each submit to a deposition at the Federal Courthouse in Philadelphia, a “neutral location,” and that the depositions (1) must be no less than three hours in length, (2) must be presided over by a court-appointed Special Master, and (3) must be undertaken by September 31, 2008.
When I pointed out to Berg that there are only 30 days in September, he chuckled–he sounded embarrassed–and responded by saying that “mistakes happen” and that “well, I guess I’ve created an extra day in September just like Obama created an extra seven states in our country.” While the gaffe is certainly unfortunate for someone looking to overcome credibility questions like Berg, as far as I know the worst thing for his case which could come of it would be a defendant’s filing of a Rule 12(e) Motion for More Definite Statement pointing out any defects or ambiguous parts in Berg’s motion. Theoretically, if Berg did not respond within 10 days with a corrected motion, the court could technically strike today’s pleading altogether. Still, it’s doubtful.
To me, the most interesting aspect of the deposition portion of Berg’s pleading is the request for a Special Master. If Berg’s motivation is truly one of time, he made his point here. Should the court grant the motion and depositions go forth, the Special Master, appointed by the court to preside over the proceedings, could avoid the endless need to go straight to the judge with every objection, question and procedural hiccup raised and manifested by overzealous attorneys on both sides of the table. As an added bonus, the appointment of a Special Master could provide needed perceived distance for the Hon. R. Barclay Surrick, himself appointed to the federal bench by President Bill Clinton, from this delicate part of the process.
If Berg’s Motion for Extensive and Expedited Discovery, filed today, were granted, Barack Obama would be ordered to turn over the following items within ten days of the order:
- A “Genuine Certified Copy” of his “vault version” of his Birth Certificate.
- Any and all certificates or other registrations of birth from Canada, Kenya, the British Isles and the United States in the name of Barack Hussein Obama, Barry Soetoro, and others.
- A “Certified Copy” of the U.S. Oath of Allegiance required to be taken in order to regain any U.S. Citizenship status.
- Any and all passport records including applications and travel logs connected with passports issued to Obama–or any previously used names–in Indonesia, Kenya, the United States and more.
- Any and all adoption records, including records detailing the adoption of Obama by his presumed Indonesian stepfather, Lolo Soetoro, as well as his grandparents, the Dunhams.
- A copy of his FBI background check used in the vetting process.
- A copy of the “vault” version of his Birth Certificate from Kenya.
- Any and all applications for a social security number and replacement social security cards.
- Any and all applications and court documents detailing a name change.
Within 20 days of the court order, should the motion be granted, Berg is also seeking other records which would provide a window into Barack Obama’s past, including but not limited to college applications and records from Occidental College, Harvard and Harvard Law School, Columbia University, the University of Chicago and any other schools to which Obama applied, as well as any applications for college grants and loans, copies of any college thesis papers or other essays written which could shed light on his life, background, heritage and childhood.
The request for these items, as well as requests for Obama’s baptismal records, listings of memberships to all clubs and organizations, copies of his Selective Service Registration and any Harvard Law Review articles he penned, made me wonder if Berg was seizing an opportunity to use discovery–should the civil action go so far–to really fill in some gaps in Obama’s background. Surely, I wasn’t the only one who questioned why no long-term acquaintances other than his wife, Michelle, has ever come forth to talk about Barack, tell stories about Barack, praise Barack or even criticize Barack like we see with so many other political candidates.
“We’ve decided that there is more to this individual than meets the eye,” said Berg. “From passports to essays to transcripts to financial aid, we’re going for all records because this is the presidency we are talking about and this man is still a total mystery.”
As far as I am concerned, I am still leery of many of the allegations put forth in Philip Berg’s suit. Surely, Barack Obama could not have gotten this far without having to present more certain identification than a Hawaiian Certificate of Live Birth which looks as though it was printed on a laser printer and fails to show such basic information as the name of the hospital in which he was born and maybe even how much he weighed on that day in early August of 1961. While the recent iteration of the certificate may have been fine for a passport application or something along those lines, certainly he must have shown more definitive documentation during his rise toward the status of political legend.
Regardless, I cannot help but wonder why Obama and his campaign officials have remained so silent on the issue or, at the very least, haven’t moved to dismiss the case altogether. Even if he didn’t want the court to look at any evidence, as required under a Rule 12(b)(6) defense for instance, why hasn’t he challenged Berg’s standing or just moved for summary judgment? Certainly his political machine, with a budget of more than $12 million each month, could have squashed this little insurrection without breaking a sweat. Perhaps, indeed, Obama’s camp is waiting for the approaching deadline.
Personally, the silence makes me curious. For Philip Berg, however, the silence inspires confidence.
“We want a vault copy of his Birth Certificate certified by the Vital Statistics Bureau in Hawaii, and I don’t know that he has it,” Berg said. “If I’m off base here, if we’re so wrong on this, he would have had his spokesperson come up with some statement maybe not mentioning me by name, but referencing an attorney filing suit and threatening that attorney with a defamation suit if the case wasn’t withdrawn within 24 hours. They have this well-oiled machine but there’s been nothing from it.”
Keep checking America’s Right for updates on the lawsuit as it proceeds. Links to all related materials–including the useful commentary Is This For Real, and Why Hasn’t the Mainstream Media Covered it Yet?–can be found on the right side of the page under the heading “Berg v. Obama @ America’s Right.”
NOTE: I have no means of hosting the 38-page PDF file, so I have made two pages available as a JPEG image. The document was electronically-filed with the court this evening, and will likely be made available on Berg’s Web site tomorrow. As soon as it is, I will provide a link. Update: Find it HERE.