What's With the Birthers?

First published by BlogCritics on 7 August 2009

Even if President Obama was born in Kenya, it's too late to do much about it.

According to a 2 August "breaking news" item from WorldNetDaily, a purported copy of President Obama's 1961 Kenyan birth certificate, certified by a Kenyan official in February 1964, has been found. The linked article reproduces a copy. As the article properly notes, a few weeks ago a different Kenyan "birth certificate" had been discovered by someone else and attempted to be marketed on e-bay; it was determined to be a fraud. It seems likely that this one may also be a fraud; it has been so claimed, and the some of the claims at first glance make some sense. On 4 August, an article published in Australasia seemed to claim that the Kenyan "birth certificate" was a forgery based on an Australian birth certificate issued to an Australian. Oh well. Maybe the Birthers are just as nuts as the Truthers, an apparently more reputable bunch who believe that 9-11 was a put up job by President Bush. Then there are those who think that President Obama's policies are increasing the national debt. How could seventy-one percent of the voters believe in such heresy? Still, "88% of Republicans blame the president’s policies, compared to 52% of Democrats. But 79% of voters not affiliated with either party agree." Tsk Tsk! And, as all good people know, those who oppose President Obama's magnificent health care reforms are part of a wicked Republican cabal, mendaciously spreading falsehoods. President Obama and his friends have told us so. We're going to get Obamacare, like it or not; we need it! We had better like it.

I have no absolutely no idea where President Obama was born. However, in view of the recurrent discussion about birth certificates, it seems worthwhile to suspend disbelief briefly and to explore what could likely happen were a bona fide Kenyan birth certificate for President Obama to appear. Such an appearance would raise the important constitutional and practical question of --- "So What?"

As most everyone is by now well aware, Article II, Section 1 of the United States Constitution provides:

No person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty-five Years, and been fourteen Years a Resident within the United States.

It seems clear on the face of things that if President Obama was born in Kenya, he is not a "natural born Citizen" of the United States and is therefore constitutionally unqualified to be the President. The practical and legal problems revolve around the fact that he was elected to the office, sworn in as president, and in the intervening more than six months has signed into law several major pieces of legislation.

The only constitutional process for removing a sitting president is impeachment by the House of Representatives and conviction by the Senate under Article II, Section 4 for "Treason, Bribery, or other high Crimes and Misdemeanors." Under Article III, Section 3, treason

against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court. (emphasis added)

Anything may be possible, but it would be a big stretch to characterize presidential lack of constitutional qualification as "treason" as defined in the Constitution. No element of bribery has thus far surfaced, and it seems unlikely that any will. That leaves "high crimes and misdemeanors," the meanings of which are more ambiguous.

If President Obama took office knowing that he was not a natural born citizen of the United States, that might possibly constitute a high crime or misdemeanor. However, this is unclear because there generally must be a law prohibiting specific conduct to make it a crime. There is no federal statute making it a crime to become the president knowing that one does not possess the requisite constitutional qualifications. There probably should be, but there isn't. Until recently, there had been no apparent need for one.

If these hurdles could be got over, there would be others. What is meant by "knowing?" No one actually has personal knowledge as to when or where he was born. I "know" that I was born in Washington, D.C. on 17 June 1941, not only because my parents later told me and I trust them, but also because I have seen the original of my birth certificate which so states. But I have no first hand, personal knowledge. Even had I been fully aware of my immediate surroundings at the moment of birth, a state of awareness which no other infant has ever experienced, there is no way that I could then have differentiated between a maternity hospital room in Washington, D.C. and one in Kenya. Despite my lack of actual personal knowledge, I have many times claimed to have been born on that date and at that place, in official documents executed subject to penalties for perjury.

If Obama falsely and knowingly swore in an official document that he was born in Hawaii, he could perhaps be impeached and convicted on the basis of perjury. There is no evidence of which I am aware of his having taken an oath to that effect; if such evidence exists, and should it be proved that he was not born in Hawaii, perjury would probably be an impeachable offense.

In any event, for impeachment and conviction of "high crimes and misdemeanors," on the basis of perjury or (improbably) without a criminal statute, it would be necessary for President Obama to have had some clear knowledge that he was not a "natural born Citizen" when he assumed office. Where might evidence of such knowledge be found?

If Candidate Obama actually believed that he had not been born in the United States, but knowingly claimed falsely that he had been, evidence of that would certainly be relevant to his state of mind. Proving what someone "believes" is never an easy task, unless the believer has written or spoken of his beliefs. President Obama has probably never expressed, publicly at least, a belief that he is not a "natural born" citizen. It has been claimed (probably correctly) that President Obama's Hawaiian birth certificate is not probative of his birth in Hawaii, even though copies of it were posted on his campaign web site. It seems reasonable to presume that Candidate Obama was aware of the posting. Whether he believed that the Hawaiian birth certificate was spurious is a different question, and a big one.

If President Obama, as a youth, travelled on a passport issued by a foreign country, that could be probative that he was then a citizen of another country. There are two possibilities here:

1. Obama was a United States citizen but obtained and used a foreign passport. If he did not thereby intend to renounce United States citizenship, then he did not forfeit it.

2. Obama was not then in fact a United States citizen, and therefore used a foreign passport. This would be very good evidence that he knew that he was not constitutionally qualified as "natural born" when he sought and accepted the presidency.

There are many questions and few answers. In any event, it seems very unlikely that the present House of Representatives would impeach President Obama even if a newly discovered and clearly valid Kenyan birth certificate proved beyond question that he was born in Kenya; it also seems unlikely that the present Senate would convict. In practice, an impeachable offense boils down to what the House and the Senate say is it is. Former President Ford said substantially the same thing. Currently, the Democrats control both houses of the Congress, and President Obama seems to control the Democrats -- if not completely, then still sufficiently to ward off a successful impeachment. The very first impeachment and conviction in United States history of a (Democratic) president seem so unlikely to occur while there is a Democratic Party majority that the subject may not even be worth discussing.

Impeached and convicted or not, the constitutional crisis would be draconian in the extreme. One possible solution would be for President Obama to resign in order to spare the country lots of turmoil. Then, or if President Obama were removed by the impeachment process, Vice President Biden would become the president, making Speaker Pelosi next in line. This might well be even worse than having President Obama remain in office. Alternatively, President Obama might simply remain in office, a much weakened "lame duck" president, quite probably facing an opposition Congress following the 2010 elections. That might well be the best possible outcome.

There is at least one other possibility, although it holds at best modest facial appeal. All of the laws enacted since 20 January might be attacked as invalid because signed by a spurious president. Aside from the fact that these attacks would take a long time to make their tortured ways through the courts, they would if successful cause a big mess. What about appropriations bills? The Government needs funding. We joke that it would be neat if the Government simply stopped, but realistically that would have some pretty undesirable consequences: the military needs to pay troops and even to feed and arm some of them. Could troops remain active in Iraq and elsewhere? Could they even be brought home? Perhaps they could hitchhike. Like it or not, the Government needs to function, and this requires such mundane things as electricity, salaries, aircraft fuel, and lots more, all of which costs money.

No matter what happens, President Obama will most likely remain in office at least until 20 January 2013. There is a useful teaching point in all of this, however. The "forth estate," the press, let the country down very badly during the primaries and general election campaigns. Rather than pursue even tepidly the question of Candidate Obama's constitutional qualifications, the press grossly disparaged anyone who raised such questions and made sick jokes of the whole thing. That spectacle continues. If a valid Kenyan birth certificate were to surface, it might wake up the press; if that were not to do so, then nothing would.

There are a few things which might be done to avoid similar crises in the future. The states could require proof of constitutional qualification before any candidacy is certified. There are constitutional qualifications for all federal elected officials, and the constitutions of many states likely also specify qualifications for office. There is a move afoot to push for a federal law so providing. The political parties could impose requirements that prior to primaries, candidates make reasonable showings, under oath, of their constitutional qualifications. The Congress might some day pass legislation criminalizing the assumption of the presidency knowing that one is not constitutionally qualified. Maybe some day, another president might sign such legislation, making it the law of the land. Until now, these have been pipe dreams. Now, in the probably unlikely event that a valid Kenyan birth surfaces, there may be sufficient impetus.