Judge's order in ‘birther' case unlikely to draw Obama

By Bill Rankin

The Atlanta Journal-Constitution

Even though President Barack Obama has been summoned to a court hearing here Thursday, don’t expect the Commander in Chief to come.

Obama will embark on a three-day trip following his State of the Union address Tuesday evening, White House press secretary Jay Carney said during a press briefing Monday. The White House has said that Obama will be in Las Vegas, Denver and Detroit this Thursday.

In a surprising ruling Friday, a Georgia state administrative judge declined to quash a subpoena directing Obama to attend a hearing Thursday at the Fulton County courthouse on a challenge to strike him from the Georgia ballot this fall on claims he is not a natural born U.S. citizen.

Deputy Chief Judge Michael Malihi issued the decision after previously declining to dismiss the case, one of dozens around the country brought by so-called “birthers.” Malihi, appointed in 1995 by Gov. Zell Miller, presides at the Georgia Office of State Administrative Hearings, which hears complaints against state agencies.

Last year, eight people filed challenges to Obama’s citizenship with the Georgia Secretary of State’s office, which administers elections. The agency referred the dispute to the administrative hearing office as required by law, an office spokesman said Monday.

Lawyers for those pursuing the challenges recently issued a subpoena for Obama to attend the upcoming hearing. Obama’s legal team filed a motion to quash the subpoena, but Malihi declined. In his order, Malihi noted that Obama’s legal team had argued that no president should be compelled to attend a court hearing.

“This may be correct,” Malihi wrote. “But [Obama] has failed to enlighten the court with any legal authority.”

Obama’s court filings fail to show why his attendance would be “unreasonable or oppressive” or why his testimony would be “irrelevant, immaterial or cumulative,” the judge wrote.

The White House on Monday referred questions to Obama’s reelection campaign, which had no public comment.

“It’s a major victory,” said Orly Taitz, a California lawyer who represents five of the people who filed challenges.

Taitz, who is also a dentist, is a leading proponent of challenges to Obama’s citizenship. Last year Obama released a long-form birth certificate showing he was born in Hawaii. Taitz said Monday she considers it a “cheap, computer-generated forgery.”

In court filings, Obama’s legal team has called the “birther” allegations baseless and the criticisms of his birth records “patently unfounded.” The filings also noted 68 similar challenges filed have been dismissed and, during a 2009 challenge, a federal judge in Columbus fined Taitz $20,000 for “frivolous” litigation.

Marietta lawyer Melvin Goldstein, who is not involved in the case, said if the hearing goes on as scheduled without Obama, Malihi could refer the matter to a Fulton County Superior Court judge. It would be up to that judge to decide whether to enforce the subpoena and, if necessary, hold the president in contempt, Goldstein said.

Eric Segall, a Georgia State University law professor, predicted that won’t happen.

“There have been many, many lawsuits trying to litigate the issue of the president’s nationality,” Segall said. “They have all been dismissed and this one should be too. In light of the frivolousness of the case, the judge has no valid authority to require the president to appear in court.”