In a decision that broke with every other judge to consider the issue, including at least one judge who effectively fined birther queen Orly Taiz $20,000 for pressing the absurd claim that President Obama is not a citizen eligible to serve as president, a Georgia administrative law judge sided with Taitz and several of her clients’ in an effort to force President Obama to testify in a birther case:
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 U.S. citizen. [...]
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 [Deputy Chief Judge Michael] 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 arrogance of Malihi’s decision is astounding. If he needs legal authority showing that the president cannot be simply commanded to present himself in court on a very specific date, he might start with the Supreme Court of the United States, which strongly implied in Clinton v. Jones that a court cannot “compel the attendance of the President at any specific time or place.” Likewise, if he needs proof that summoning the president of the United States to testify on a frivolous issue would be “cumulative” of existing evidence, he might consider discovering something called “Google.”
Fortunately, it is unlikely that Malihi’s gross overreach will actually amount to something. As an administrative law judge, Malihi lacks any real authority to enforce this subpoena, and must refer the matter to a trial judge in order to actually try to haul Obama into court. It is unlikely that a state trial judge will share Malihi’s disrespect for the law or his disconnect with commonly known facts about the president’s birth.
Nevertheless, there is an important lesson to be learned from this incident, which is that it is always possible to find a judge who is willing to accept just about any ridiculous legal argument if you are willing to search hard enough. Indeed, the Affordable Care Act’s opponents demonstrated the impact of this strategy when it found a longtime GOP activist and judge who makes explicit shout outs to the Tea Party who were willing to accept the utterly meritless case against the Affordable Care Act. Hopefully, Malihi’s decision will not legitimize the equally ridiculous claim that President Obama is not a natural born citizen.