Summary of Hearing in Barnett V Obama September 8, 2009, Before Judge Carter.

(As Reported to Me by Tes via waveydavey)

It was a packed courthouse.

When they saw how many

people showed up, they moved to a new courtroom that would seat more people. people there. Even with the new courtroom they did overflow, into the original courtroom, that was able to show audio/video of the hearing. They did not even get into the courtroom because of so many people, and because of the backup from -- supposedly Monday there's a motions call -- as reported by waveydavey -and while it wasn't exactly clear, it appears that Monday is a motions call, and all the motions that would have been heard Monday were pushed to today because of Labor Day. Therefore, By waveydavey's estimate, there were about 120

they didn't even get into the courtroom until about 10:30. Orly seemed not to have learned her lesson from the last time. When she came into the courtroom there was another

hearing still going on and -- either still going on or they were waiting for it to go on -- and other counsel were at the counsel table, and she went up to the counsel table, as if she was going to sit down, and had to be told again "No, wait your


So she had to go sit back down. Her case came up at 11:00 a.m., and the judge started

the hearing by itemizing the three issues to be discussed.


ordered them as service of process, Drake/Robinson plaintiffs, and then the motion for recusal of Judge Nakazato. With respect to service he asked whether service had been effected. there. For the U.S. Mr. West spoke -- DeJute was also

West is DeJute's boss -- West said yes, service had Then the judge went on a soliloquy recounting

been completed.

the whole service fiasco with the mail clerk, and all of that. Waveydavey said the judge was shaking his head over that. He thanked all the parties for resolving this issue and he's very glad that the issue of service was finally over. He continued throughout the hearing, actually praising the U.S. attorneys for "nurturing" the process along, and he thanked them repeatedly for helping Orly serve properly. statement several times throughout the hearing. Next he moved to the Drake/Robinson motion. talked about the Rule 16(b) issue. He He made that

Drake and Robinson were The

both present at the hearing, sitting in the audience.

judge was trying to get Orly and Kreep to resolve this thing between them, but they clearly, visually, had issues with each other. They had to sit at the same table, but they were

sitting as far apart from each other as possible, and the dislike was palpable.

The judge referred, at this point, to the fact that he understood at the July hearing that she was filing a motion -- an amended complaint to narrow the issues, but he now sees that the new amended complaint is actually much broader. Orly tried to talk, but she couldn't figure out how to get the mic to work at this point. After she struggled with

it a while the judge got up off the bench, went around to her mic and helped her turn it on, because she could not figure it out herself, so the judge did it for her. Orly and Kreep were apparently arguing against each other about how they can't work together. Orly kept wanting to talk about other issues, but the judge kept pulling her back saying, "This part of the hear is about Robinson and Drake." The judge told her, "You are about to cause a huge delay, and cause a procedural quagmire because of your refusal to work with each other. Because of this dispute between you

and Kreep, you are going to delay everything. "Is this about you representing your clients or is this about you, personally? Orly interrupted him, and he said,

"I know you always have the answers, but you'll get a chance to talk later." At 11:20 he called a recess and told Taitz and Kreep to work it out. "If you don't resolve this we're going to be This

talking about this three or four months down the line.

whole dispute undercuts your argument that it's urgent, because you refuse to get along together, even though it's urgent. are saying things are going downhill, but you are the one causing delays by not resolving this issue." Then the judge said when he gets two different cases filed in his court that are covering the same issues he joins them together anyway, "but you, Orly, are asking me to separate them, but the ultimate outcome, if we continue down that road, would be to join them anyway. to just deal with it." Orly didn't like his statement at all, "just deal with it," and she kept making the point that her theories are very different than Kreep's. His only concern is with the That's the practice, so you need You

place of birth, whether or not Obama is born in Hawaii, while her argument is two citizen parents, that it takes two natural-born citizen parents to be a natural-born citizen. She did not want to be concerned with him, because her arguments would be watered down or she would lose half of what she considers to be her case. The judge said, "No, you The recess was

guys have to work it out," and called a recess. called at 11:20.

At 11:30 they came back and Kreep said, "Taitz will in no circumstances work with me." Taitz said, "I tried in good conscious to work with him," and then she began recounting the Keyes v Bowen state


She complained with how he handled the case, in that he

left the country when it was going on, and there was some hearing, I guess, while he was out of the country, and the problem, she said, was that they weren't able to get a hearing because there was improper service which led to delays. Kreep responded that the Court should review the state court file in the case, which would prove that Orly was wrong. The judge responding to this saying, "Because of your

refusal to agree, the merits will be substantially delayed, which is not a good result." The judge said, "The difficulty

with the delay is that if Obama is legitimate to be president this delay undermines his credibility, which is not good for our country. "On the other hand, there's an equal problem if Obama does not meet the requirements. In that case this delay will

cause that issue to be heard further and further out, until someone can deal with that. How does anyone benefit from a Then he said, "I Drake and

six- to 12-month delay," he asked. think I'm going to force you to be together. Robinson are to remain in the lawsuit."

He then directed Kreep

and Orly to move their chairs closer together and said, "You need to work together." They moved the chairs together, and he

said, "I now see the two of you as one." He then assured Orly about her concerns by saying that he would not preclude her from presenting different or

contradictory theories. say."

He said, "You'll each get to have your

At that point West brought up the Motion to Dismiss. The judge said he had not yet seen that motion. He was in over

the weekend but that motion had not gotten to him yet, so he couldn't talk about it because he'd not yet seen it. He then started talking about having a scheduling conference with all counsel. He referenced the 12(b)6 rule, He said, "I haven't yet seen In the meantime He then

which is the motion to dismiss. the motion.

I will look at it right away.

let's proceed to talk about a scheduling conference."

set October 5th for the Motion to Dismiss hearing, saying if that motion fails then we'll have a scheduling conference on the same day. West agreed to that. that. Orly said she's not happy with She mentioned her

She wants an even faster schedule.

Motions For Letters Rogatory.

She then asked whether they (who was in the

could have testimony from Lucas Smith courtroom.)

The judge did not like that at all. bringing a witness in here without notice? and ambush. You are not going to do that.

He said, "You're

This is surprise According to

waveydavey, he was not at all happy. West and DeJute also objected, strenuously, saying they had heard nothing about her bringing a witness.

The judge then goes back and gets everyone to agree to October 5th, at which time there will be the Motion to Dismiss and the Scheduling Conference. Then after some give

and take about scheduling he said -- and waveydavey wasn't exactly perfectly clear -- but he thought motions due November 16th, like any dispositive motions in the case -- he would hear the motions on December 7th, pretrial would be January 11th, and trial would be January 26. Orly didn't like that. She asked again for expedited

discovery, saying that it could prevent the need for a trial, because if proved he was not eligible he'll just resign and we'll have new elections, to which West responded, "Wait. still have the whole issue of subject matter jurisdiction, standing, et cetera, in the government motion. No discovery We

can go forward while the motion to dismiss is pending. West also said he was going to ask for a stay for all discovery pending resolution of the Motion to Dismiss, and he said he'll be filing an ex parte motion for a stay on Friday. By this point it was 12:00 noon, and the judge switched gears to the recusal motion. The judge reviewed the motion and read the relevant law, and then he told Orly, "What Judge Nakazato did was what would happen in 10 out of 10 times in a case. way that we follow procedures. aside saying it was moot. It's the normal

He denied the motion to set

He also said Judge Nakazato made a

correct ruling. On the motion to recuse he dismissed it without prejudice, but noted that it was pointless to refile because all Judge Nakazato did was follow the rule, and there's no bias in following the rule. Orly then said she wants the letters rogatory to go forward. The judge responded, "Just a moment. We can't do

discovery due to the motion to dismiss.

There's also a pending

ruling from Judge Nakazato," -- which would be the ruling on the discovery motion. Orly then said she "has a witness here in the courtroom today who is afraid for his life. Let him testify

now," and if you decide it's not appropriate we can always strike the testimony later." West objected strenuously saying "This is sandbagging, surprise," and all of that. And the judge said,

"I don't intend to let two witnesses come in on the fly without notice. The judge then said, "Usually this kind of thing would

be accomplished by deposition." Then, in waveydavey's view, he started playing devil's advocate with the government. It seemed to waveydavey

that he was playing devil's advocate, not that he was really serious, but what he said to the government is, "Why can't they just do a deposition since the guy is here?" -- (waveydavey said everyone seemed to be under the impression that Smith had

just flown in from Kenya) -- so the judge was like, well, he's flown in, why couldn't they just do a deposition. At that point the Orlybots loved it. There was

general clamoring in the courtroom such that the bailiff had to ask for order in the courtroom. West, of course, didn't like that idea of depositions. The judge said he will read the U.S.'s Motion to

Dismiss, and started hinting around about some sort of deposition by Friday, exploring the possibility of going ahead with that. Then Orly launches into the whole thing, telling Lucas Smith's story. The judge interrupted her saying, "You I have to read the

know, I don't want to hear this. government's motion. have jurisdiction.

That may resolve everything, if I don't

By this time it's 12:15, and West says, "There's no reason to believe that a witness will be killed." The judge

cut him off and said, "We're not going to have this testimony going forward. We're just not going to do that."

So the next thing was a question about a hearing before Judge Nakazato, and waveydavey said everybody was confused about it, no one knew what it really was. (As an aside, what it has to be is their Amended Motion For Letters Rogatory and Deposition, because that's the pending motion that was filed, I think, August 14th.)

Orly came back and said, "I'm getting death threats every day. I get death threats on a daily basis." She

referred to Lieutenant Harris -- the passport guy -- as someone who came forward with testimony and was killed. She said again, "I have a witness here in fear for his life. I asked for a hearing behind closed doors or voir It has to be done.

dire because he has to be able to testify. I leave it to you to decide the best way."

The judge said, "We need an orderly process.


side must have a chance to respond," and that was the end of that. As a final thing the judge read the First Amended Complaint that added all the additional plaintiffs, and he referred to that again saying, "I thought we were narrowing this case. All that happens when you add additional plaintiffs It's not good for the country and

is that it drags things out.

it doesn't help your case in any way." (Waveydavey said it seemed to him that the judge was asking her to narrow her case again, you know, get rid of some plaintiffs.) Once again the judge praised the government for helping to nurture the process so that issue could finally be dispensed with.

He didn't take Taitz to task, but continually praised

the U.S. for bending over backwards to help the other side.

End of summary.

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