No Obama in court, no ‘birther' ruling

By Bill Rankin

The Atlanta Journal-Constitution

A hearing on whether President Obama should be removed from the November ballot in Georgia ended Thursday without a ruling -- and also without Obama.

The president’s lawyer boycotted the proceeding -- triggered by citizenship challenges brought by a group of so-called “birthers” -- calling it “baseless, costly and unproductive.” Lawyers for the challengers said the president should be held in contempt for not complying with a subpoena.

“This court has authority to take appropriate steps to punish him in contempt,” said state Rep. Mark Hatfield, a Waycross Republican who represents two men from Duluth and Morrow who filed challenges.

Judge Michael Malihi, who recently refused to quash the subpoena summoning Obama, never addressed the request. He cut off another lawyer when he began to complain that Obama’s no-show amounted to “contempt for the judicial branch.”

“I’m not interested in commentary on that, counselor,” Malihi quickly interjected during the hearing, which drew about 80 spectators and members of the media.

Obama’s name is on the November ballot, put there by the Democratic Party under standard practice. The challenges were filed last year with the Secretary of State’s office, which referred them to the State Office of Administrative Hearings. Malihi will now make a recommendation to Secretary of State Brian Kemp. Kemp’s decision can be appealed to a Fulton County judge.

On Thursday, lawyers raised two arguments for why Obama should not be on the ballot. One contended an 1875 Supreme Court opinion says only a “natural born citizen” -- someone born in the U.S. and whose parents were U.S. citizens -- can be president. (Obama’s father, who was from Kenya, was not a U.S. citizen.) The other alleged Obama’s birth, social security and passport records are forgeries.

California lawyer Orly Taitz, a leading proponent of challenges to Obama’s candidacy, made the latter argument. She turned and faced the gallery -- and the TV cameras -- during her opening statement, prompting Malihi to tell her: “Counsel, please address the court.”

During closing arguments, as Taitz began referring to documents that were not in evidence, Malihi pointedly asked, “Counsel, are you testifying?”

Taitz abruptly halted her arguments, took the witness stand and began testifying. Malihi soon cut her off.

The claims raised Thursday have been brought in courts across the country in dozens of cases, all of them dismissed. Obama released his long-form Hawaii birth certificate last year, quieting but not extinguishing the challenges. Malihi’s ruling earlier this month that Obama should appear gave renewed hope to undeterred “birthers” and made Georgia the latest battleground.

Marietta lawyer Melvin Goldstein, who has practiced extensively before the court, called Malihi a “very fair and very reasonable” judge. “But this issue has been adjudicated and then dismissed so many times, I can’t imagine his decision would be contrary to decisions in the other cases.”

On Wednesday, Obama’s lawyer, Michael Jablonski, told Kemp he could end the case by withdrawing his referral of the matter to Malihi, adding he would not participate in the hearing. “It is well established that there is no legitimate issue here,” he wrote.

Kemp, a Republican, said law required him to refer the challenges. “If you and your client choose to suspend your participation ... please understand that you do so at your own peril,” the secretary wrote.

During the hearing, Obama was in Las Vegas giving a speech to UPS employees. Inside the courtroom in Atlanta, almost every available seat was taken -- except for those at the defendant’s table facing the judge.