Obama, DNC File Motion to Dismiss in Federal Eligibility-Related Lawsuit

At approximately 3:30 p.m. today, Illinois Sen. Barack Obama and the Democratic National Committee filed a Motion to Dismiss the lawsuit filed on August 21, 2008 by lawyer and former Deputy Attorney General for Pennsylvania Philip Berg questioning Obama’s constitutional eligibility to run for and hold the office of president of the United States.

The motion–available for view and download HERE, along with the supporting brief–was filed pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil procedure, arguing, first, that the court lacked subject matter jurisdiction because Berg has no standing to assert his claim and, secondly, that Berg’s complaint failed to state a claim upon which relief could be granted.

Unlike the way in which the defense supported the 12(b)(6) defense, citing the particularities and treatment of the Declaratory Judgment Act by the Third Circuit Court of Appeals, the lack of standing defense did not surprise me in the least. In two recent posts on this matter, the first one eight and the other 12 days ago, I focused on the standing issue–specifically noting the disposition of the New Hampshire case, Hollander v. McCain, quoted in today’s motion–and pressed Berg on the issue.

I told him, just as I explained in these pages, that above everything else he needed to show an INJURY IN FACT. I mentioned that simply being a taxpayer, or a voter for that matter, has not proven to be enough to show injury or prove standing. In today’s motion, the defense stated that Berg failed to allege any “concrete, specific injury in fact to himself,” maintaining that voter disenfranchisement alone is not enough, that “a voter’s loss of the ability to vote for a candidate ‘of their liking’ does not confer standing because the actual injury is not to the voter but to the candidate.”

The Hon. William Alsup in the Northern District of California expressed similar feelings when he granted John McCain’s Motion to Dismiss–filed on similar grounds–on September 16 in Robinson v. Bowen, the citizenship-related action filed against the Arizona senator by the chairman of California’s American Independent Party, stating that even with plaintiff Markham Robinson’s status as party chairman and chances of becoming an elector, he still had “no greater stake in the matter than a taxpayer or voter.”

In that decision, just like in today’s Motion filed by Obama and the DNC, Judge Alsup relied heavily on the New Hampshire court’s decision in Hollander, which could not have been more clear:

This is not to demean the sincerity of Hollander’s challenge to McCain’s eligibility for the presidency; … [w]hat is settled, however, is that an individual voter like Hollander lacks standing to raise that challenge in the federal courts.

I was actually on the telephone this afternoon with Philip Berg, conversing about the possibility and possible ramifications of moving for default judgment on Thursday morning, when I learned that the Motion to Dismiss had been filed. Two hours later, I caught up with him again after he presumably had a chance to look over the other side’s response pleading.

He hadn’t yet, and said he didn’t need to, stating that he was “prepared for them to file the Motion to Dismiss” and that he knows without having yet read it what it contains and contends.

Furthermore, even though filing so close to deadline is a common and accepted practice, Berg was steadfast in his belief that the longer the senator fails and refuses to produce the documentation sought in the Motion for Expedited Discovery filed on September 9, the more it looks like his allegations are correct, and he felt as though the timing of today’s motion was another attempt at obfuscation.

“Note, Jeff, that they waited until just before the deadline to file this, note that they’re just trying to prolong it and not deal with the issue,” he said. “It’s funny that on a day that McCain has stated that he’s suspending his campaign and wants the upcoming debate canceled so America can talk about the economic crisis, Obama says that he can campaign and talk it out at the same time, yet how come he’s not talking about his birth certificate? How come he’s hiding behind technical rules?”

“If you’re not qualified to be there,” Berg said, “get off the stage at this point in the game. Every day that goes by, every step that he takes to avoid showing those documents, which I don’t believe exist, indicates to me that he’s not natural-born.”

Having just been called out for lack of standing, I once again pressed him on the issue. I knew that filing a response to today’s Motion had its disadvantages and therefore assumed that Berg would file an amended complaint better laying the foundation for his standing. Berg maintained the line he’d drawn and walked over the past few weeks, but was careful to make sure I understood his ability to adapt.

“Don’t get me wrong,” he said. “I believe we have established standing with the complaint we filed, but also we’re going to add a few clauses which will clarify our standing to sue.”

At the heart of one of those clauses, he said, is the United States Code, specifically 8 U.S.C. § 1481(b), the use of which appears to be aimed at Berg’s allegation that, if Obama did have U.S. Citizenship, he relinquished it upon moving with his mother to Indonesia and never regained it. 8 U.S.C. § 1481(b) states that whenever the loss of citizenship is at issue with regard to a civil action presumably such as this, the burden of proof is placed on the party bringing the action–in this case, Berg–to establish the claim by preponderance of the evidence.

§ 1481. Loss of nationality by native-born or naturalized citizen; voluntary action; burden of proof; presumptions

(b) Whenever the loss of United States nationality is put in issue in any action or proceeding commenced on or after September 26, 1961 under, or by virtue of, the provisions of this chapter or any other Act, the burden shall be upon the person or party claiming that such loss occurred, to establish such claim by a preponderance of the evidence. Any person who commits or performs, or who has committed or performed, any act of expatriation under the provisions of this chapter or any other Act shall be presumed to have done so voluntarily, but such presumption may be rebutted upon a showing, by a preponderance of the evidence, that the act or acts committed or performed were not done voluntarily.

Simply put, to prove something “by a preponderance of the evidence,” the party bearing the burden of proof must simply convince a judge or jury that the facts are more probably one way than the other. Regardless, Berg reads 8 U.S.C. § 1481(b) as providing him with “the right to question anyone’s status as a citizen,” I imagine, so long as he can satisfy the burden of proof.

Berg insists that, rather than wait the full 20 days to respond, he’ll likely file his amended complaint on Monday. Besides containing the aforementioned additional clauses and arguments, Berg mentioned that he will likely withdraw suit against the Federal Election Commission–they’re more concerned about the financial aspect of the election, he says–and add Pennsylvania’s Secretary of the Commonwealth, Pedro Cortes, to the action for his role as overseer of the electoral process in the Keystone State.

“He’s the one that puts a person on the ballot,” Berg said. “In this case, that person’s not a citizen, he doesn’t meet the qualifications, and he doesn’t belong on the ballot.”

In talking about the addition of Cortes, Berg also mentioned that he has been contacted by a number of people who may file similar suits against state-level election officials in several states across the country, saying that “the public outrage should be enough to cause a groundswell” in several locations, that “even one state would be enough,” that “some judge must hear this case before the election.”

All in all, Berg said, today’s Motion to Dismiss was expected, but certainly wasn’t right.

“This filing, this joint filing, was outrageous,” he said. “It was outrageous for the country, it was outrageous for the people who have voted for him, for the 300 to 400 million dollars collected by his campaign under false pretenses. The easy way to do this was to simply accept my challenge and turn over the vault copy of his birth certificate and oath of allegiance, but it is obvious by his waiting and by his hiding behind technicalities that those don’t exist.

“By doing it this way,” he continued, “he is just playing with the public and I think it is an outright disgrace.”

In order to survive this motion to dismiss, Berg will need to amend his complaint or author a responsive pleading which, in some way, shows that he has done enough. According to Bell Atlantic v. Twombly, a case heard by the U.S. Supreme Court last year, Berg would need to allege enough facts to create “plausible grounds to infer” that (1) his claims can in fact be proven and (2) “to raise a reasonable expectation that discovery will reveal evidence” which supports those claims. While Bell Atlantic did not provide specific detail as to exactly what type of factual support is necessary to push a claim, such as Berg’s, “across the line from conceivable” to “plausible,” the Court in that case did make it crystal clear that a “short and plain statement” of the facts will be fine and that detailed factual allegations are not necessary.

Berg assures me that his response will come soon. Keep checking here for updates.



  1. Jet says:

    Perhaps Berg can satisfy his burden of proof requirement by showing the judge an official copy of a Kenyan birth certificate with Obama’s name on it or an official copy of Obama’s adoption papers by his stepfather Lolo Soetoro and change of citizenship to that of Indonesia.

  2. Larry Walker Jr says:

    Unlike McCain whose parents were both US Citizens, Obama’s father was a citizen of Kenya. Under Kenyan law Obama was himself a Kenyan citizen up to the age of 18 (factcheck.org).

    It is still not clear whether or not Obama reaffirmed his Kenyan citizenship before age 18. In 1996 he campaigned for a Presidential candidate in Kenya (Odinga). He also has Muslim relatives residing in Kenya. Obama’s conflicting nationalities could cause harm to each and every American.

    In 1998 our embassies in Kenya and Tanzania were bombed. If the US is forced to go to war against Kenya, would Obama be able to do what’s in the best interests of Philip Berg, and myself?

    After we get nuked by some Islamic fundamentalist friend of Obama’s will Berg then be able to show injury, or does Berg himself have to be nuked first? The idea is to prevent injury to us all.

    If I see a man sneaking a gun by security and onto an airplane, do I have the standing to be able to take action? Or do I need to be shot, or the victim of an airplane crash first?

  3. PatGund@gmail.com says:

    Typo. It’s 8 U.S.C. § 1481(b), not 18 U.S.C. § 1481(b)


  4. Jeff Schreiber says:

    Pat –


    With the recent violence in Philadelphia (another officer down with an illegal gun), I’ve had 924(c) on the mind … specifically **18** USC 924(c).

    Great catch!


  5. Ian Thorpe says:

    It was predictable Obama would respond by trying to tie this up in the legal process.

    Barry first made me suspicious of him when he reascribed the tactic of passive resistance to MLK when it was in fact first used by Mohandas K Gandhi. I’m a big fan of Gandhi and being British I love irony.

    So it is with a sense of irony I now suggest bloggers of the right, joined perhaps by disaffected Hillary Clinton supporters start a campaign of civil disobedience to disrupt government business until this case is heard.

    Query official forms in nit picking detail, ask for photographic evidence or collaborative witness statements to support speeding or parking tickets, that kind of thing.

    On trick that worked here was truckers driving at walking pace on arterial roads to bring city centres to a standstill.

    But Americans are imaginative, I’m sure you can think of many locally appropriate ways to disrupt things.

    Often obeying the law to the letter is more effective than disobeying it.

  6. willem says:

    Perhaps Berg should have someone who has given money to the DNC or the Obama campaign join his complaint, if Berg indeed has not given them money himself. It seems to me, if one has given money to Obama and/or the Democratic Party in support of his election, and then later discovered they may have willfully and perhaps with premeditation broken the law and/or their own rules, or otherwise engaged in behaviors which preserved concealment of the deceptions, or, withheld actions that would have led to the discovery of same, then, particularly in the matter of the fraud claim, there may be demonstrable actual injury as well as added momentum for shifting the burden of proof to the Defendants on the matter of citizenship and eligibility.

    I don’t know the election laws in PA or the consumer protection statutes. But I wonder: Can a candidate or a state political party engage in knowingly false representations or willful deceit in the raising of money for elections or candidates? Do they have immunity? It may be a national election, but the presidential election in Pennsylvania is for PA electoral delegates to The Electoral College. The materiality of Obama’s eligibility is particularly interesting, as this is a record fundraising year for Democrats and Obama’s personal wealth has been rumored to have jumped to over $7 million since moving to gain his party’s nomination.

    How does the DNC escape a duty to produce the evidence of its due diligence on the question of Obama’s citizenship and eligibility. Should it be found lacking, what then? This matter of due diligence is a sleeper.

  7. Anonymous says:

    The Constitution would be in crisis if in fact Obama is elected and not a Natural Born Citizen.

    Why wasn’t the Constitutional issue raised?

  8. PatGund@gmail.com says:

    Jeff –

    Not a problem! I may not agree with you politically, but I find your site very useful for the Berg updates – and your legal comments on them.

    I suspect you’re right, and the case will be dismissed due to lack of standing. Not to mention there’s flaws in the case you could drive a truck though. However, I could see one positive outcome from this and the Robinson vs McCain case.

    It’s obvious there’s no real vetting system to confirm if a candidate could hold an office legally. Right now it seems to depend on the Secretaries for each State getting confirmation from the parties about it. What might be an idea for future elections is that, as part of the filing process with the FEC, the candidate has to provide the appropriate proof, and sign releases for the FEC to check with the issuing agencies and confirm the candidate’s legal ability to hold the office in question.

    The appropriate documents and confirmation could either then be held for public review with the FEC, or the FEC could issue a “certificate of eligibility” to confirm that the candidate meets the legal qualifications to hold that office.

    Berg’s lawsuit is a bad patchwork of posts from anomyous bloggers, questionable “experts”, and past wikipedia entries. Even if he was granted standing, I doubt it would hold up in court. However, maybe some good will come out of Berg vs Obama and Robinson vs. McCain – a way to put these types of claims to rest once and for all.

  9. Anonymous says:

    Correct me if I’m wrong.
    8 U.S.C. § 1481(b) basically provides an end-run around the whole law suit.

    Berg will no longer need for the judge to actually hear the case in order to be successful.

    That is, the code states that in order to prove standing in a case regarding a persons citizenship, in addition to injury of fact and that relief can be granted, Berg must also provide evidence and PROVE Obama is not a citizen.

    That means Berg will have the ability to present evidence and have the judge evaluate Obama’s citizenship before he can rule on the motion to dismiss.

    Even if the case is thrown out at this point, the judge would be forced to comment on the Obama’s citizenship.

    I think it would be just as much a win if Judge Surrick says Berg has proven by a preponderance of evidence that Obama is not a citizen, but he still does not have standing as an individual voter to proceed with the suit.

  10. Anonymous says:

    RE: 8 U.S.C. § 1481(b)

    Anonymous said…
    “Even if the case is thrown out at this point, the judge would be forced to comment on the Obama’s citizenship.”

    I would think the judge’s OWN CURIOSITY should be enough. He could require that the defendants produce the birth certificate, in order to put and end to the controversy, and then dismiss the case. The refusal by the defense to provide the documents should then allow the case to go forward. For the judge to do otherwise, would make him part of the conspiracy.

    McCain’s eligibility WAS resolved according to law, without the lawsuit; so the judge in that case was right in dismissing it. That case challenged the law in question; this one does not.

    The real question that everyone should be asking is, why there has not been a single major media discussion about this case? Someone even asked me was this a REAL LAWSUIT, as they cannot understand why they have not heard about it.

    I’m going to start sending the link to foreign media…like in UK, Russia, or maybe Al Jazeera!

    Listen to what Lybia’s Muammar el Qaddafi has to say about Kenyan-born Obama:

  11. Anonymous says:

    From a comment at No Quarter Blog:

    What’s going on w/the Berg lawsuit….someone posted what follows at another blog:
    From Barack Obama’s Fight the Smears page, this new language has been added:

    “When Barack Obama Jr. was born on Aug. 4,1961, in Honolulu, Kenya was a British colony, still part of the United Kingdom’s dwindling empire. As a Kenyan native, Barack Obama Sr. was a British subject whose citizenship status was governed by The British Nationality Act of 1948. That same act governed the status of Obama Sr.‘s children.

    Since Sen. Obama has neither renounced his U.S. citizenship nor sworn an oath of allegiance to Kenya, his Kenyan citizenship automatically expired on Aug. 4,1982.”

  12. vrajavala says:

    Thank you jeffrey for following the case.
    I believe that Obama is hiding the truth. i also believe that Obama is a pathological liar and has psychiatric issues stemming from a very obvious disfunctional childhood.
    Stanley Dunham worked for the Ford foundation and the USIA so she had connections to get documents, etc.
    There is absolutely no reason for Obama to hire a couple of lawyers when all he had to do was to produce a birth certificate and oath of allegiance.
    so, I believe we are right in having suspicions that he is , in fact, a Trojan Horse.
    And the truth will be revealed.

  13. Jet says:

    Interesting article from texasdarlin.wordpress.com:

    Dual Citizenship Makes Obama Ineligible Under Article II
    By Judah Benjamin, Guest Author
    So, at long last, Senator Obama admits that he was born with Dual Citizenship:

    From “Fight the Smears”

    “When Barack Obama Jr. was born on Aug. 4,1961, in Honolulu, Kenya was a British colony, still part of the United Kingdom’s dwindling empire. As a Kenyan native, Barack Obama Sr. was a British subject whose citizenship status was governed by The British Nationality Act of 1948. That same act governed the status of Obama Sr.‘s children.

    Since Sen. Obama has neither renounced his U.S. citizenship nor sworn an oath of allegiance to Kenya, his Kenyan citizenship automatically expired on Aug. 4,1982.”

    Now nice Anti-Pumas, please admit that the Senator has been selling snake oil and you have been buying it. I said he was probably born with Dual Citizenship under the 1948 Act at the outset, and I wasn’t wrong. Likewise, I wasn’t wrong about the Kenyan Constitution and his Kenyan Citizenship. Don’t take any bets that I’m wrong about Indonesia. Or the US Constitution and what it means.

    Please note that I, once again, state that I, personally, believe Obama was born in Hawaii and that it doesn’t affect my opinion on his Eligibility for the Office of POTUS at all. In my understanding Article II Requires that one be a “Natural Born Citizen”, and in terms of the Law as understood by the Framers, anyone with Dual Citizenship could not be “Natural Born”. It does not matter that they no longer hold that Citizenship, they fall into the same bracket as a “Naturalized Citizen” because they have/had Divided Allegiance. That is my view and I haven’t moved an inch on it.

    However, the Kenyan Citizenship Issue may not be the main point here, WAS HE, OR WAS HE NOT, an INDONESIAN CITIZEN? The Senator isn’t saying, isn’t mentioning it, is trying to avoid producing any Paperwork at all. Why? If he is/was an Indonesian Citizen, too, the Senator’s entire narrative is a fiction and he should be ashamed of himself.

    He’s lied about Kenya, at least by omission, for months/years, so why should I assume he isn’t lying about Indonesia? Note Kenyan Citizenship automatically lapses if it isn’t renewed at age 21, Indonesian Citizenship doesn’t. If he was an Indonesian Citizen he would have to actively repudiate that Citizenship. Did he? Has he? Because if he hasn’t, Senator Obama is Dual National Indonesian at this moment, subject to the Laws of BOTH Countries, equally.

    That is true under US Law, Indonesian Law and International Law and until LAST YEAR Indonesia DID NOT Recognize Dual Citizenship and the USA did not Recognize that one could be a Dual US/Indonesian Citizen. It does not matter that the Senator was not Responsible for the change of Citizenship because he was a child when it happened. Governor Schwarzenegger was not Responsible for the fact that he was born in Austria, or that under Austrian Law he is not a US Citizen, or under the US Law and Rules he is not a Citizen of Austria.

    Senator Obama needs to produce his Paperwork, all of it, not just a Certification of Live Birth from the State of Hawaii, but all his other Paperwork too.

    So, the Senator WAS a Dual National. That is now an admitted fact, admitted by his own Campaign and by Annenberg. The Senator is a Constitutional Lawyer which means that he knows, and has always known, that he is probably Ineligible to Hold the Office of POTUS, or that, at the very least, there is a strong Legal Argument that that is the case. In turn, that means that as he lied about his Kenyan and British Citizenships he is probably lying about his Indonesian Citizenship.

    I do not suppose that it was ever his intention to give up his US Citizenship and it does not matter to me one bit. It doesn’t matter to Indonesia either. If Lolo Soetoro adopted him he ceased to be a US Citizen in the mid 1960s, BY INDONESIAN LAW. He also ceased to be a Kenyan Citizen, BY INDONESIAN LAW. By Kenyan and US Law he retained his Original Citizenships, until his 21st Birthday. By Indonesian Law he could have given up Indonesian Citizenship at age 18, but did he? If he didn’t he was, albeit accidentally, displaying a Legal Intention to void his US Citizenship, since he knew he could not Legally hold both Citizenships.

    Please don’t tell me that the US doesn’t have to concern itself with the Laws of Indonesia because, in this case, the US does have to do so. By the way, under US Law of another time the Senator would not have been a US Citizen at all, and he knows that.

    If a Naturalized Citizen cannot hold the Office of POTUS because they previously held another Citizenship it is egregious, so far as I am concerned, that a Dual Citizen/Former Dual Citizen should claim to have a Legal Right to do so. I refer the reader to my Articles on Dual Citizenship and ask you to read the quotes from Blackstone. [TD NOTE: I will be re-posting all of Judah's work shortly].

    This new material at “Fight the Smears” displays arrogance, hubris and bad faith, in my opinion. It is the Senator’s reaction to Phillip Berg’s Law Suit, and, basically, it amounts to an open admission of mens rea. He is flaunting his bad faith and in so doing destroys his own case.

  14. Anonymous says:

    If it’s okay for Palin and McCain to hide behind deceit, then you all found like hypocrites. As a Christian, I am disappointed on how God’s people can sink so low, just to win an election.

    I’m still waiting on Palin to surrender to the truth about her impending case. I’m eagerly awaiting for McCain to surrender the transcripts of his POW records, which are perpetually confidential (on McCain’s request).

    I want to know if he indeed sell out to the VietCom. There are vets who’d swear that he did. Not only that, but he blocked the POW/MIA activists and Vietnam vets the right to give the federal government the ability to obtain any records of the where-a-bouts of their loved ones. Counselor, heal thyself (McCain’s oops!)before you dig into Obama’s past.

  15. Harrah says:

    I am not a lawyer, so as a layperson, I have a question for you, Jeff about Berg v. Obama:

    If Obama is not a U.S. citizen, why is the issue of his citizenship status and eligibility to run for President being heard in a U.S. federal court?

    Aren't foreigners not supposed to be allowed to present testimony nor be entitled to their day in our courts of law?

    Shouldn't this matter be heard in a different type of tribunal–more of an immigration & naturalization type?

  16. Me says:

    vrajavala, you make very good points. I just checked out from the library “The Obama Nation: Leftist Politics and the Cult of Personality” by Jerome R. Corsi. I’m only on page 120 right now, but very early on I was wondering what is going on in Obama’s mind and heart. I don’t really know exactly what his issues might be, but I do think he has some serious issues that many people are choosing to overlook. Is this guy really someone we want to hold the highest office in the land (if he can even prove he is eligible to do so)? I had major concerns about Obama before starting the book and reading thus far hasn’t alleviated those fears, but only added to and exacerbated them. This lawsuit has done the same.

  17. Anonymous says:

    This proves that Obama is a ture fake.

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