U.S. Supreme Court Decisions on Berg, Donofrio Cases Could Be Imminent

FEC Waives Right to Respond to Berg Petition, Court to Address Donofrio Action in Conference

According to the Docket No. 08-570 at the United States Supreme Court, the Federal Election Commission yesterday filed a waiver of its right to respond to attorney Philip Berg’s Petition for Writ of Certiorari, filed on October 31 and currently pending before the Court.

Contrary to Internet rumor that Justice Souter had ordered Barack Obama to provide the vault copy of his birth certificate, the Court merely set December 1, 2008 as the date by which the respondents–Obama, the Democratic National Committee and Federal Election Commission–were to respond to Berg’s petition if they chose to do so at all. Yesterday’s filing, which appeared on the docket this afternoon, shows that the respondents have waived their right to respond.

It also suggests that a decision on Berg’s petition could be imminent.

There are a number of reasons why the respondents here would choose not to respond. First, because the Court only grants between 70 and 120 of the 8,000 or so petitions it receives every year, perhaps they just liked their odds of Berg’s petition getting denied. Second, because they have made arguments as to Berg’s lack of standing several times at the district court level and beyond, perhaps they felt as though any arguments had already been made and were available on the record. Or, perhaps the waiver shows that the FEC and other respondents do not take seriously the allegations put forth by Berg, and did not wish to legitimize the claims with a response.

Another thing which is not completely clear is whether the FEC is filing for itself or on behalf of all respondents. On the docket, the FEC’s attorney is noted as being the attorney for all respondents; on yesterday’s docket entry, it states that the waiver was filed by “respondents Federal Election Commission, et al.” As it were, the FEC’s attorney, Gregory Garre, is with the Solicitor General’s office, and does not represent Obama or the DNC. While attorneys acting on behalf of a group of defendants or respondents is not necessarily rare, the difference here is the involvement of the Solicitor General’s office, a federal office.

This distinction is not lost on Philip Berg.

“If it were just the FEC filing the waiver, I must say that I’m surprised,” Berg said. “I’m surprised because I think they should take the position that the Supreme Court should grant standing to us. I think they have a responsibility not only to Phil Berg, but to all citizens of this country, to put forth a sense of balance which otherwise doesn’t seem to exist.”

“However, if this was filed by the FEC on behalf of the DNC and Barack Obama too, it reeks of collusion,” he said, noting that the attorney from the Solicitor General’s office should be representing federal respondents and not the DNC or Obama.

Indeed, neither the DNC nor the president-elect are, for now, federal respondents, though Obama’s status as Illinois senator–a position from which he resigned this past weekend–could place him under the representational umbrella of the Justice Department.

While outright collusion could be a stretch, if indeed the FEC’s attorney is acting on behalf of all respondents and not just the FEC, there certainly is the appearance of coordination. Regardless of the veracity of the allegations put forth against Barack Obama, for the Department of Justice and the Solicitor General of the United States to be facilitating a defense which is calculated to shield from disclosure, rather than compel disclosure, of manifestly relevant and critical information bearing directly upon not just the qualifications but the very constitutional eligibility of Barack Obama — the word “unorthodox” comes to mind. As does “shameful.” And yet, in these post-election times, especially considering the FEC’s decision not to audit Obama’s $600 million take during his campaign (at least $63 million of which was from undisclosed sources), this appears to be the new standard in post-election times.

Either way, Berg says that he is hopeful that the Court will “do the right thing,” and ensure that “the American public is provided with the opportunity to know that the person leading the United States of America is eligible, under our Constitution, to do so.”

As for New Jersey firebrand and attorney Leo Donofrio, his application for an emergency stay was denied by Justice Souter, Donofrio was able to refile and resubmit it to the Justice of his choosing, and properly did so. Today, the docket for his action shows that after being put before Justice Clarence Thomas, the application will be discussed by the Court in a December 5, 2008 conference.

Normally, during their term, the Supreme Court Justices conference on Wednesday (typically, but not always) and review the various petitions and applications before them, deciding which of the many such proceedings should be heard by the Court. I suspect that we could soon see a similar entry on the docket for Berg’s case as well.

Now, this does not mean that the Court has decided to hear either of these matters and, in fact, is fairly typical when it comes to the process. Still, for those hoping to have these cases heard on their merits, for those who feel these issues are more about the United States Constitution than Barack Obama, this is a step in the right direction.

Certainly, the proceedings moving along normally is positive with regard to publicity for Donofrio and Berg as well. Just yesterday, news of Alan Keyes’ suit in California reached the Drudge Report, so the questions surrounding this aspect of Obama’s candidacy are seemingly beginning to see the light of day.

For a full time-line of materials related to coverage of Berg v. Obama and more at America’s Right, click HERE.



  1. Anonymous says:

    Here is how BO will get out of the Donofrio case if Donofrio is right.

    He will produce an afidavid from his white grandmother, stating that Obama Sr. was not really BO’s biological father. Instead she will claim it was someone else (a U.S. citizen of course) because his mother slept around.

    Then they will put his Grandmother under oath about this (oh, wait!! she’s dead, how convenient).

  2. Anonymous says:

    In regards to the Leo Donofrio case. What would happen if someone was born to an unwed mother, and no father is listed on the birth certificate?

    Are they natural born???

  3. Michael says:

    It’s no big deal that the FEC waived the right to respond.

    It’s unclear why the Solicitor General would use “et al”, but I would think the USDoJ could only represent the FEC, not Obama and the DNC.

    If the SG is filing for Obama and the DNC, then I agree entirely, that reeks of collusion !

    The DNC and Obama filed together for the motion to dismiss Civil Action No. 2:08-cv-04083-RBS v Berg in PA.

    Part of the DNC and Obama’s legal team was at that time Joe Sandler of the Washington law firm Sandler, Reiff, and Young.

    I would imagine that Joe is still on the case.

    Is it just me, or does it seem odd that Obama and the DNC would retain Joe Sandler, an attorney for CAIR, a.k.a. the Council on American-Islamic Relations, the leftist “civil liberties” group that specializes in stifling free speech, for defense in the Berg case ???

    CAIR is an organization with terrorist ties, and is an unindicted co-conspirator in the Holyland Foundation Hamas Funding trial.




    Anyhoo, I’ve posted this before but for those who may have missed this, the Federal Elections Commission, FEC, is only responsible for administration and enforcement of campaign finance regulations, not vetting political candidates. Agreed, while the FEC has failed to investigate fraudulent campaign funding allegations, it is not the responsibility of the FEC to qualify political candidates.

    It is the responsibility of Dianne Feinstein, Chair of the US Senate Committee on Rules and Administration and her committee members:

    Purpose and Jurisdiction
    (Taken from the Standing Rules of the Senate: Rule 25.1.n)

    (1) Committee on Rules and Administration, to which committee shall be referred all proposed legislation, messages, petitions, memorials, and other matters relating to the following subjects:

    (A) Administration of the Senate Office Buildings and the Senate wing of the Capitol, including the assignment of office space.

    (B) Congressional organization relative to rules and procedures, and Senate rules and regulations, including floor and gallery rules.

    (C) Corrupt practices.

    (D) Credentials and qualifications of Members of the Senate, contested elections, and acceptance of incompatible offices.

    (E) Federal elections generally, including the election of the President, Vice President, and Members of the Congress………

    I haven’t heard a peep from Feinstein during this whole election cycle until the other day; it was a sound bite calling for unity and moving the country in a “new” direction.

    Perhaps we should be asking the Senators who are members of this senate committee if they fulfilled their obligation as members of this committee ?

    I’m going to start e-mailing these Senators and ask them if their committee indeed verified the qualifications of the presidential candidates per Article II: be at least 37 years of age, has lived in the USA for 14 years and is a NATURAL BORN citizen.

    Jeff, thank you so much for your unselfish public service !


  4. Tired of being called racist says:

    To Mr. Donofrio,

    I have a question that I hope you’re uniquely able to answer.

    Would the specific wording of the Article II qualification words make Obama eligible?

    ‘at the time of the adoption of this Constitution’.

    In another words, when each state adopts the Constitution in joining United States, each and every citizen of the state becomes eligible. That was the Founding Fathers way of grandfathering themselves to eligibility.

    The fact that Hawaii became a US state AFTER Obama was born, and was a citizen of Hawaii, based on the wording of the Article II, would make him eligible just as G. Washington, J. Adams, etc… were eligible.

    Would this particular interpretation of these words be correct??? What are your thoughts???

    I’m not trying to throw cold water on your case.

    Just asking for clarification as to your opinion.

  5. Tired of being called racist says:

    To Koyaan,

    Man, you have lots of time and the ability to defend the indefensible.

    You sound just like the people that were defending Clinton when he said, 'I did not have sexual relations with that woman, Monica Lewinsky.'

    President said it, therefore it must be true, you guys kept on insisting to us.

    I can just imagine how depressed you guys were when the stain on the blue dress showed up.

    Your reality turned out to be a Fantasy.

    Why is it that you sound just like that again?

    FIRST – COLB is NOT proof.
    COLB is just a registration AFTER the birth. NOT proof of where the birth took place. In fact, I understand that even Hawaii, the issuer, won't take a COLB in lieu of an actual Birth Certificate.

    SECOND – 'Natural-Born Citizenship' is not attained by being born in US.

    Any and all amendments confer citizenship, however, they do NOT confer 'Natural-Born Citizenship'.

    You can be 'Born Citizen', be a 'Naturalized Citizen', 'Native Citizen', etc… However, still not be a 'Natural-Born Citizen' as required by Article II.

    Actually, I happen to have a different view with Mr. Donofrio's suit. It is quite possible that Obama can be eligible even though he's not a 'Natural-Born Citizen', due to the fact that Hawaii became a state AFTER Obama was born. Therefore, when Hawaii adopted the Constitution, ALL of it's citizens would qualify, just like G. Washington, etc…

    Based on the wording of the Article II, it says 'at the time of the adoption of this Constitution'. If it said 'at the time of the ORIGINAL adoption of this Constitution', yeah, that would be favorable to Mr. Donofrio's argument.

    However, based on the words used, since different states in the Union adopted the Constitution at different times in US history, it could be argued that ALL citizens of any particular state are eligible when the state adopts the Constitution.

    THIRD – The fact that Obama went to Pakistan in 1981. THAT's where, I believe, Obama lost eligibility.

    US Citizens not being able to go to Pakistan at that time, yet, he went there. The fact that this happened AFTER he became an adult and any & all actions that he partook consciously as an adult.

    THIS is the problem. Anything his mother did in dragging him around from Hawaii, Kenya, Indonesia, all could be argued that as a child he should NOT be penalized for the action of his parents.

    By going to Pakistan, he took action as an adult. Whatever he did to gain entry to Pakistan and return to US, THAT's on HIM in his adult capacity.

    This event that Obama, himself, stated in order to embellish his foreign knowledge, is THE problem.

  6. Koyaan says:

    Tired of being called racist wrote:

    FIRST – COLB is NOT proof.
    COLB is just a registration AFTER the birth. NOT proof of where the birth took place.

    That’s absolutely incorrect.

    You really need to stop swallowing the bullshit that’s posted on the web and passed off as fact.

    A Certification of Live Birth is NOT a registration AFTER the birth. Late registrations are issued a Certificate of Live Birth, same as any other birth.

    A Certification of Live Birth is a CERTIFIED COPY of the ORIGINAL BIRTH CERTIFICATE.

    In fact, I understand that even Hawaii, the issuer, won’t take a COLB in lieu of an actual Birth Certificate.

    Your understanding is completely incorrect.

    By Hawaiian law, a Certification of Live Birth is to be considered for all purposes the same as the original birth certificate.

    Please read what it says at the bottom of every Hawaiian Certification of Live Birth:

    This copy serves as prima facie evidence of the fact of birth in any court proceeding. [HRS 338-13(b), 338-19]

    Now, see that “[HRS 338-13(b), 338-19]” at the end? “HRS” stands for Hawaii Revised Statutes. And the numbers for the relevant sections of the Hawaii Revised Statutes.

    Here is Section 338-13 in its entirety:

    §338-13 Certified copies. (a) Subject to the requirements of sections 338-16, 338-17, and 338-18, the department of health shall, upon request, furnish to any applicant a certified copy of any certificate, or the contents of any certificate, or any part thereof.

    (b) Copies of the contents of any certificate on file in the department, certified by the department shall be considered for all purposes the same as the original, subject to the requirements of sections 338-16, 338-17, and 338-18.

    (c) Copies may be made by photography, dry copy reproduction, typing, computer printout or other process approved by the director of health. [L 1949, c 327, §17; RL 1955, §57-16; am L Sp 1959 2d, c 1, §19; HRS §338-13; am L 1978, c 49, §1]

    And just for the sake of completeness, here is Section 338-19:

    §338-19 Photostatic or typewritten copies of records. The department of health is authorized to prepare typewritten, photostatic, or microphotographic copies of any records and files in its office, which by reason of age, usage, or otherwise are in such condition that they can no longer be conveniently consulted or used without danger of serious injury or destruction thereof, and to certify to the correctness of such copies. The typewritten, photostatic, or microphotographic copies shall be competent evidence in all courts of the State with like force and effect as the original. [L 1949, c 327, §23; RL 1955, §57-22; am L 1957, c 8, §1; am L Sp 1959 2d, c 1, §19; HRS §338-19]

    So, as is made quite clear by the certificate itself and Hawaiian law, a Certification of Live Birth is NOT a “registration AFTER birth” as you and others falsely claim, but rather it is a CERTIFIED COPY of the ORIGINAL BIRTH CERTIFICATE.

    Again, you need to stop swallowing the bullshit that’s posted on the web and passed off as fact.

    SECOND – ‘Natural-Born Citizenship’ is not attained by being born in US.

    Any and all amendments confer citizenship, however, they do NOT confer ‘Natural-Born Citizenship’.

    You can be ‘Born Citizen’, be a ‘Naturalized Citizen’, ‘Native Citizen’, etc… However, still not be a ‘Natural-Born Citizen’ as required by Article II.

    So tell us, what DOES confer “natural born citizenship,” if not being born within the US.

    THIRD – The fact that Obama went to Pakistan in 1981. THAT's where, I believe, Obama lost eligibility.

    US Citizens not being able to go to Pakistan at that time, yet, he went there. The fact that this happened AFTER he became an adult and any & all actions that he partook consciously as an adult.

    This is complete bullshit.

    US citizens were not prohibited from traveling to Pakistan at the time Obama went there.

    This is yet another myth that won’t die because rubes like you keep swallowing it and regurgitating it all over the web.

    I challenge you to find any State Department document, press release or news article supporting this claim.

    In the meantime, I note that there’s absolutely no mention of any prohibitions on US citizens traveling to Pakistan in this New York Times travel piece written in June of 1981, the same year Obama went to Pakistan:

    Lahore, A Survivor With a Bittersweet History


  7. Koyaan says:

    Tired of being called racist wrote:

    The fact that Hawaii became a US state AFTER Obama was born…

    Excuse me?

    Last I looked, Hawaii became a US state in 1959. Two years BEFORE Obama was born.

    What, are you chronologically dyslexic or something?


  8. Koyaan says:

    Michael wrote:

    Is it just me, or does it seem odd that Obama and the DNC would retain Joe Sandler, an attorney for CAIR, a.k.a. the Council on American-Islamic Relations, the leftist “civil liberties” group that specializes in stifling free speech, for defense in the Berg case ???

    First, Obama didn’t retain Sandler. Second, if you’d done just a modicum of research, you would have discovered that Sandler has been the General Counsel for the DNC for about a decade now.


  9. Anonymous says:

    “Prior to 1983, as a general rule British nationality could only be transmitted from the father through one generation only, and parents were required to be married.” – wikipedia entry on British Act of 1948.

    Provided he was born in Hawaii, Obama is an unnatural born citizen of the US, because the laws of jurisdiction, which the U.S. did not and does not dispute, made Obama a British subject at the moment of birth.

    It all comes down to jurisdiction. Even if Obama was adopted by Obama Sr., he would still be a British subject at birth.

    In order to negate Obama’s British citizenship at the moment of birth, the Supreme Court would have to overturn the UK’s Act of 1948 governing the offspring of male UK citizens who were married.

    I really can’t see the Supreme Court disputing the UK’s claim of jurisdiction. The US Constitution’s so-called grandfather clause explicitly rejects for POTUS all citizens who are outside of US jurisdiction at the moment of birth.

  10. Anonymous says:

    On the Hawaii becoming a State question. Hawaii became a State in Aug. 1959, so nothing to grandfather BHO is there. (who was born in 1961)

  11. Anonymous says:

    Anonymous said…
    “Did produce it, the real question is why it is SOOOO hard for some of you to let it GOOOOOOOOOOOOOOOOOOOOOOOOOO!!!!!!!!!!!!!”

    - Of course you want us to let this GOOOOOOOOO. Your just don’t want anyone to push through till the TRUTH come out.

  12. kilted warrior says:

    I am new to this but I was reading some stuff about Hawaii,seems they claim to be a free nation and Clinton even signed a bill saying so.Could this mess up OB’s chances??

  13. Anonymous says:

    Compilation summary of the Obama Birth Certificate issue:


  14. Anonymous says:

    BO was born in 1961….Hawaii became a state in 1959.

  15. Tired of being called racist says:

    My bad. This is what happens when trying to get out of work and don’t check the facts BEFORE putting up my comments.

    Thanks to everybody for correcting me.

    So, I guess Obama can’t be grandfathered. Too bad.

    TO Koyaan,

    ‘Natural-Born Citizen’ is attained when a child is born in US to 2 US Citizens as far as I understand.

    Now, you may just tell me I’m wrong, however, SCOTUS is going to review the matter on Dec. 5.

    So, you figure out WHY SCOTUS is reviewing Mr. Donofrio’s case and THEN let me know.

    As for the COLB, let’s see, based on your post, a certificate issued by the government can be copied and accepted. Fine. However, you didn’t address the COLB being accepted IN LIEU of an Actual Birth Certificate.

    Nice re-direction. Not good enough.

    As for Obama’s trip to Pakistan, you can say and state anything you want, however, it’s amazing when you give links and quotations for everything EXCEPT this. Why is that?

    Your reply is hogwash, you know it.

    Bottom line, Obama is going to have a hard time getting officially elected. Drink some more Kool-Aid and chill.

  16. dcomus says:
  17. Nat says:

    You are ranting about the “Constitutionality” of Obama as POTUS due to a fabricated Internet rumor about Obama’s place of birth, yet you ignore Bush’s behavior over the last 8 years. Isn’t this ironic? Bush has posed the greatest threat to democracy and the Constitution of any president in the last 50 years, yet you people are bound and determined to find some way, no matter how absurd, to prevent our first fairly elected president since Clinton to take office. What a bunch of nutjobs. Seriously.

  18. jeleasure says:

    Hi Jeff,
    Concerned citizen, here. I am curious if you can get some very interesting information to Donofrio.
    A friend of mine at Talk Wisdom received some information in her comments section that Donofrio should definately consider. The link to the actual blog comments section in reference is here .
    In the comments section, Christine, from Talk Wisdom references this information and a link to it, saying, “I certainly hope that Mr. Donofrio has Mr. Polarik’s research in his possession when his lawsuit case against Obama is reviewed!”

    Here is the material she would like Donofrio to have, Conspiracy, forged image .
    If you can get it to Donofrio, I think it should be passed on.

  19. anamericanidiot says:

    I know it hurts to lose. I’m a conservative too. What just blows me away is that now we’re so desperate we’ll grasp at anything. This is all based on a rumor of a comment by an old woman in Kenya. If there was anything substantial to this Hillary Clinton would have been all over this. I have more complete response here: http://anamericanidiot.wordpress.com/2008/11/25/too-little-too-late/ Not spam just a full response. I hate defending Obama but sometimes we’re just idiots.

  20. Matt says:

    We are not idiots, maybe you haven’t looked into all of the facts. From day one Obama has refused to make his college transcripts, donor info, and birth certificate public. This and all of the other shady lies about his associations and actions cause me, and other well educated people to be quite alarmed. I am not a conspiracy theorist at all, I am a well educated, business owner, husband, father of three, and proud US citizen who doesn’t his country to elect someone who is not straight up about who he really is. I feel as though his lawyer training and eloquent speech has hypnotized a lot of reasonable people into believing his untruths and I need to be a part of the team of people who will stand up and expose it, and stand up for the constitution. So, please categorize only yourself as an idiot as you see fit, not the rest of the inquisitive folk here.

  21. jeleasure says:

    Way to take a stand!

    I am very pleased to not feel as if I am the only one with a passion to bring this problem to some resolve.


  22. Richard says:

    This is hilarious, all this angst and consternation from the same people that looked the other way when George W. Bush SUED his way to POTUS. The lawsuit brought an illegal end to the legal and required recount of votes in Florida (isn’t that what the election process is supposed to be?)

    Citizenship is a RIGHT to all those born unto US citizens, NOT a privilege.

  23. jerbear1 says:

    So, maybe the Messiah will have to prove he was born in the US…If he is a Fraud we need him away from us…Jerry

  24. Anonymous says:

    At the present time I’m watching a re-run of “JFK” with Kevin Costner, and am wondering how deep this Obama conspiracy actually goes. Having grown up in Dallas, and having been a 7th grader there in November of 1963, things that smack of a political coverup don’t sit well with me. I am praying for this all to be brought to the light of day.

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