U.S. Supreme Court Decisions on Berg, Donofrio Cases Could Be Imminent

FEC Waives Right to Respond to Berg Petition, Court to Address Donofrio Action in Conference

According to the Docket No. 08-570 at the United States Supreme Court, the Federal Election Commission yesterday filed a waiver of its right to respond to attorney Philip Berg's Petition for Writ of Certiorari, filed on October 31 and currently pending before the Court.

Contrary to Internet rumor that Justice Souter had ordered Barack Obama to provide the vault copy of his birth certificate, the Court merely set December 1, 2008 as the date by which the respondents--Obama, the Democratic National Committee and Federal Election Commission--were to respond to Berg's petition if they chose to do so at all. Yesterday's filing, which appeared on the docket this afternoon, shows that the respondents have waived their right to respond.

It also suggests that a decision on Berg's petition could be imminent.

There are a number of reasons why the respondents here would choose not to respond. First, because the Court only grants between 70 and 120 of the 8,000 or so petitions it receives every year, perhaps they just liked their odds of Berg's petition getting denied. Second, because they have made arguments as to Berg's lack of standing several times at the district court level and beyond, perhaps they felt as though any arguments had already been made and were available on the record. Or, perhaps the waiver shows that the FEC and other respondents do not take seriously the allegations put forth by Berg, and did not wish to legitimize the claims with a response.

Another thing which is not completely clear is whether the FEC is filing for itself or on behalf of all respondents. On the docket, the FEC's attorney is noted as being the attorney for all respondents; on yesterday's docket entry, it states that the waiver was filed by "respondents Federal Election Commission, et al." As it were, the FEC's attorney, Gregory Garre, is with the Solicitor General's office, and does not represent Obama or the DNC. While attorneys acting on behalf of a group of defendants or respondents is not necessarily rare, the difference here is the involvement of the Solicitor General's office, a federal office.

This distinction is not lost on Philip Berg.

"If it were just the FEC filing the waiver, I must say that I'm surprised," Berg said. "I'm surprised because I think they should take the position that the Supreme Court should grant standing to us. I think they have a responsibility not only to Phil Berg, but to all citizens of this country, to put forth a sense of balance which otherwise doesn't seem to exist."

"However, if this was filed by the FEC on behalf of the DNC and Barack Obama too, it reeks of collusion," he said, noting that the attorney from the Solicitor General's office should be representing federal respondents and not the DNC or Obama.

Indeed, neither the DNC nor the president-elect are, for now, federal respondents, though Obama's status as Illinois senator--a position from which he resigned this past weekend--could place him under the representational umbrella of the Justice Department.

While outright collusion could be a stretch, if indeed the FEC's attorney is acting on behalf of all respondents and not just the FEC, there certainly is the appearance of coordination. Regardless of the veracity of the allegations put forth against Barack Obama, for the Department of Justice and the Solicitor General of the United States to be facilitating a defense which is calculated to shield from disclosure, rather than compel disclosure, of manifestly relevant and critical information bearing directly upon not just the qualifications but the very constitutional eligibility of Barack Obama -- the word "unorthodox" comes to mind. As does "shameful." And yet, in these post-election times, especially considering the FEC's decision not to audit Obama's $600 million take during his campaign (at least $63 million of which was from undisclosed sources), this appears to be the new standard in post-election times.

Either way, Berg says that he is hopeful that the Court will "do the right thing," and ensure that "the American public is provided with the opportunity to know that the person leading the United States of America is eligible, under our Constitution, to do so."

As for New Jersey firebrand and attorney Leo Donofrio, his application for an emergency stay was denied by Justice Souter, Donofrio was able to refile and resubmit it to the Justice of his choosing, and properly did so. Today, the docket for his action shows that after being put before Justice Clarence Thomas, the application will be discussed by the Court in a December 5, 2008 conference.

Normally, during their term, the Supreme Court Justices conference on Wednesday (typically, but not always) and review the various petitions and applications before them, deciding which of the many such proceedings should be heard by the Court. I suspect that we could soon see a similar entry on the docket for Berg's case as well.

Now, this does not mean that the Court has decided to hear either of these matters and, in fact, is fairly typical when it comes to the process. Still, for those hoping to have these cases heard on their merits, for those who feel these issues are more about the United States Constitution than Barack Obama, this is a step in the right direction.

Certainly, the proceedings moving along normally is positive with regard to publicity for Donofrio and Berg as well. Just yesterday, news of Alan Keyes' suit in California reached the Drudge Report, so the questions surrounding this aspect of Obama's candidacy are seemingly beginning to see the light of day.



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