Berg v. Obama and Common Sense
Andrew McCarthy, former AUSA and current NRO contributor, writes:
What is the deal with Obama’s birth certificate and citizenship status?
… , Philip J. Berg, a former Deputy AG of Pennsylvania and a professed Hillary supporter, filed a lawsuit claiming Obama is not constitutionally eligible to be president; instead of simply clearing up any questions — which you would think would take about five minutes — Obama’s lawyers moved to dismiss the suit and failed to file a timely answer, meaning that, under the applicable rules (according to Berg), Obama is legally deemed to have admitted Berg’s allegations that he is constitutionally ineligible to be president. . . .
Has anyone around here looked into this? Is it a serious issue, and why does Obama seem to be so squirmy about it?
This seemed in my wheelhouse. So I checked out the docket of Berg v. Obama et al., 08-cv-04083-RBS (EDPA).
First up, here’s the complaint, followed in short order by Judge Surrick’s order denying Berg’s TRO, seeking to disqualify Obama. Pretty summary, eh? Maybe it’s because Berg doesn’t have standing, and thus Surrick can’t bring himself to waste time better devoted to actual litigants with real cases-in-controversy.
Next up, here’s Obama’s motion to dismiss, and Berg’s opposition. Not surprisingly, Obama then moved to stay discovery pending resolution of the dispositive motion. Here’s the FEC, joining Obama’s motion to dismiss for lack of jurisdiction.
Those dispositive motions are all pending. Now, I’ve no idea what Berg has been telling McCarthy, but in civil court, filing a motion to dismiss an original complaint tolls the time in which a defendant has to answer a complaint. (FRCP 12(4).)
Obama (and the FEC) have admitted nothing, and no judge in the Country would find to the contrary.
[Just to be clear, I have no informed views about the merits of the Obama citizenship theory, though I’m inclined to think it is silly based on what I’ve read. Nor do I have informed views about whether the standing rule which prohibits Berg’s claims is a normatively desirable one. All I’m saying is this: McCarthy claimed, based on bad information I think, that Obama’s failure to answer was consequential. That’s plainly wrong.]