Georgia - Welden v Obama - Certified Transcript 1-26-12 Hearing tfb

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APPEARANCES:

FOR THE PLAINTIFF:

VAN R. IRION, Attorney9040 Execut ive Park Drive, Sui te 223

Knoxvil le , Tennessee 37923

FOR THE DEFENDANT:

(No appearance.)

Page 2



Page 3

I N D E X

WITNESSES: DIRECT CROSS REDIRECT RECROSS

David Welden 5

Kenneth Allen 8

EXHIBITS: FOR IDENTIFICATION IN EVIDENCE

Pla in t i f f :

1 - Bir th Cer t i f i c a t e , BarackObama, I I

2 - INS Barack Obama, Sr.Legal Sta tus

3 - Pages 214-215, Dreams From

My Father

5 6

8

7 8



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P R O C E E D I N G S

JUDGE MALIHI: Thank you, please take your sea t s .

3 Good morning.

4 Counsel for the Pla in t i f f , please int roduce

5 yourse l f and your c l i en t .

6 MR. IRION: Your Honor, my name i s Van I r ion and I

7 represent Pla in t i f f David Welden.

8 JUDGE MALIHI: Good morning, s i r .

9 I 'm ready to hear from you, s i r .

10 MR. IRION: Yes, Your Honor.

11 May it please t h i s very honorable Court , l a s t

12 night , the Court received a l e t t e r from Mr. Jablonski ,

13 at torney for the Defendant . The l a s t paragraph I 'd l ike to

14 read in to the record , s t a t e s :

15 "We awai t your t ak ing the reques ted ac t ion ,

16 and as we do so , we wil l , of course , suspend

17 fu r ther par t ic ipa t ion in these proceedings,

18 inc luding the hearing scheduled for January 26."

19 As the Court can see , the - - nei ther the Defendant

20 nor the Defendant ' s at torneys are here .

21 The Secre ta ry of State responded with a l e t t e r to

22 Mr. Jablonski l a s t nigh t s t a t i ng tha t i f they don ' t show up,

23 t ha t it wi l l be a t t he i r own per i l , I bel ieve i s the quote .

24 Your Honor, the Pla in t i f f ca l l s the Pla in t i f f , Mr.

25 David Welden.



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JUDGE MALIHI: Please .

Counsel, you have 30 minutes to conclude your

3 case, 10: 00 a.m.

4 Si r , w i l l you s tand up and ra i se your r i gh t hand?

5 Whereupon,

6 DAVID WELDEN

7 appeared as a witness here in and, having been f i r s t duly

8 sworn, was examined and t e s t i f i e d as fol lows:

9 DIRECT EXAMINATION

10 BY MR. IRION:

1112

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15

Q

A

Q

A

Q

16 Georgia?

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A

Q

Si r , please s ta te your name fo r the record.

David Welden.

Where do you l ive?

In Powder Springs, Georgia, in Cobb County.

Are you reg i s t e red to vote in the State of

Yes, I am.

Showing the wi tness what has been marked fo r

19 i de n t i f i c a t i on as P la in t i f f ' s 1. Are you f ami l ia r with t ha t

20 document?

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22

23

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25

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Q

Yes.

What i s i t ?

(The document re fe r red to was

marked for i de n t i f i c a t i on as

P la in t i f f ' s Exhibi t Number 1.)



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Page 6

A It's the bi r th ce r t i f i ca t e t ha t I downloaded from

the WhiteHouse.gov websi t e . It's a bi r th ce r t i f i ca t e

3 professed to be of Barack Hussein Obama I I .

4 Q And do you see an i tem on l ine 8 - - I 'm sorry ,

5 excuse me - - on i tem 11. Can you read tha t?

6

7

8

9

10

A

Africa .

Q

A

Yes, i tem 11 says the bi r thplace i s Kenya, East

And t h a t ' s re fe r r ing to - -

That i s the bi r thplace of the fa the r .

MR. IRION: Move to have exh ib i t marked for

11 i den t i f i c a t i on P la in t i f f ' s Exhibi t 1 in to the record.

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JUDGE MALIHI: P la in t i f f ' s 1 i s in the record.

(The document, here tofore marked as

P la in t i f f ' s Exhibi t Number 1, was

rece ived in evidence. )

MR. IRION: That ' s a l l I have fo r th i s witness .

JUDGE MALIHI: Thank you, s i r , you may s tep down.

MR. IRION: Cal l ing Kenneth Allen - - oh, I 'm

19 sorry , Your Honor, I do have another i tem for t h i s witness .

20 I apologize .

21 BY MR. IRION:

22 Q Referr ing the wi tness to what has been marked for

23 i den t i f i c a t i on as Exhibi t 3. What i s t ha t - - are you

24 f ami l ia r with t h i s?

25 A Yes, I am.



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Q

A

What i s i t ?

Page 7

(The document r e fe r red to was

marked fo r i de n t i f i c a t i on as

P la in t i f f ' s Exhib i t Number 3.)

This i s pages 214 and 215 of a book authored by

6 Barack Obama en t i t l ed Dreams From My Father .

7

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Q

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Can you read the high l igh ted por t ion?

Yes. The por t ions t ha t I high l igh ted

(Alarm sounds. )

JUDGE MALIHI: Sorry fo r the i n t e r rup t ion .

THE WITNESS: The por t ions t ha t I high l igh ted a re

- - the f i r s t one i s on page 214 where I j u s t high l igh ted a

couple of l i nes to ind ica te the t ime frame within the book.

And th i s was in 1966 or ' 67, according to Mr. Obama.

The sec t ion on page 215, I high l igh ted with the

purpose of i l l u s t r a t i n g some h i s to ry of h is fa ther ; and h is

fa ther had been having t roub le with obta in ing employment up

to th i s poin t and I 'm going to quote h e re . I t says :

"When he went to foreign companies to look

fo r a pos t , the companies were warned not to h i re

him. He began looking abroad and was hi red to

work for the African Development Bank in Addis

Ababa, but before he could jo in them, the

government revoked h is passpor t and he cou ldn ' t

even leave Kenya."



Page 8

1 MR. IRION: That ' s a l l I have fo r th i s witness ,

2 Your Honor.

3

45

JUDGE MALIHI: Thank you, you may s tep down.

(Witness excused.)

MR. IRION: Cal l ing witness Kenneth Allen .

6 Whereupon,

7 KENNETH ALLEN

8 appeared as a witness here in and, having been f i r s t duly

9 sworn, was examined and t e s t i f i e d as fo l lows:

10 DIRECT EXAMINATION

11 BY MR. IRION:

12 Q Refer r ing the wi tness to what has been marked fo r

13 i de n t i f i c a t i on as P la in t i f f ' s Exhibi t 2.

14 (The document r e fe r red to was

15 marked fo r i de n t i f i c a t i on as

16 P la in t i f f ' s Exhib i t Number 2.)

17 MR. IRION: And move t ha t P la in t i f f ' s exh ib i t

18 marked fo r i de n t i f i c a t i on as Exhibi t 3, be moved in to the

19 record .

20 JUDGE MALIHI: Three i s in the record .

21 (The document, here tofore marked as

22 P la in t i f f ' s Exhibi t Number 3, was

23 received in evidence. )

24 BY MR. IRION:

25 Q Are you f ami l ia r with the document I j u s t handed



1 to you?

2

3

4

A

Q

A

Page 9

I am.

What i s i t?

Well, it's from Immigrat ion and Natural iza t ion

5 Services and it ac tua l ly i s - - it's about Barack Obama, Sr.

6 and it's - - it was not ice of h is F-1 s tudent immigrat ion

7 s t a t us .

8 Q And what i s the da te a t the bottom of t h i s

9 document?

10 A June 27, 1962.

11 Q There ' s a form number a t the top of the document.

12 Could you read tha t?

13 A Yeah, it's 1-208 - - or 20B-208.

14 Q What 's your understanding of the purpose fo r th i s

15 document?

16 A Well, t h i s document ac tua l ly helped him get in to

17 Harvard.

18 Q So what does it say about h is s ta tus as a c i t i zen

19 of the United Sta tes?

20 A Well, he ' s not a c i t i zen of the United Sta tes . I t

21 says s ta tus i s he ' s from Africa .

22 Q A ll r i gh t . How did you come to obta in th i s

23 document?

24 A Through a Freedom of Information Act t h a t I f i l ed

25 in February of 2011.



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1 Q And i s t h i s the copy - - i s t h i s copy an accurate

2 copy of the document t ha t you rece ived from your Freedom of

3 Information Act request?

45

A I t i s .

MR. IRION: And for the record , I 'd l ike to read

6 Georgia Code Sect ion 24-1-4, mat te rs jud ic ia l ly recognized -

7 - excuse me - - Judic ia l ly Recognized Mat te rs , and I 'm

8 quot ing:

9 n •••the laws of the United Sta tes and of the

10 several s t a t e s ... customs of merchants ... and a l l

11 s imi lar mat te rs of publ ic knowledge s ha l l be

12 jud ic ia l ly recognized without the in t roduct ion of

13 proof . n

14 I read t h a t to poin t out the fac t t ha t t h i s

15 document, under not only Georgia s t a t u t e , i s jud ic ia l ly

16 recognized, bu t under Georgia precedent , and should fa l l

17 within the business records except ion to a hearsay

18 object ion .

19 That ' s a l l I have for t h i s witness . And t h a t ' s

20 the close of the evidence fo r Mr. Weldon.

21

22

23

24 minutes .

25

JUDGE MALIHI: You may s tep down, s i r .

(Witness excused.)

JUDGE MILLER: Okay, counsel , you have 20

MR. IRION: And I bel ieve t ha t I can cover it in



Page 111 20 minutes , Your Honor.

2 As I s ta ted before , our hope here i s to help the

3 Court understand what our core argument i s . What we're

4 t ry ing to show here i s t ha t Barack Obama - - by the evidence,

5 Barack Obama's f a ther was not a United Sta tes c i t i zen a t the

6 t ime of the Defendant ' s b i r t h . And under Art i c l e I I of the

7 United States Cons t i tu t ion , t ha t means t ha t he i s not a

8 natura l born c i t i z e n , as was defined by the Supreme Court in

9 Minor v. Happerset t .

10 In Minor v. Happerse t t , the Court recognized three

11 categor ies of people - - natura l -born c i t i z e ns , c i t i zens and

12 everybody e l se . Now the Court also noted t ha t a l l na tu ra l -

13 born c i t i zens are c i t i z e ns , but not a l l c i t i zens are

14 natura l -born c i t i zens .

15 There are three paths to c i t i zensh ip in the United

16 Sta tes , a l l of them founded within the Cons t i tu t ion . The

17 f i r s t one i s Art i c l e I I , natura l -born c i t i z e n , as defined by

18 Minor v. Happerset t . The second one i s natura l ized

19 c i t i z e ns , which i s defined under - - excuse me which i s

20 defined by Congress as they are authorized to do under

21 Art i c l e I . And then t he re ' s the 14th Amendment.

22 Now, it should be noted t ha t a l l natura l ized

23 c i t i zens t ha t are natura l ized under Congress ' author i ty

24 under Art i c l e I cannot be natura l -born c i t i zens spec i f ica l ly

25 because Congress does not have the author i ty to a l t e r the



Page 12

1 Cons t i tu t ion o ther than through the amendment process . So,

2 therefore , a l l of the s ta tu tes and laws, whether or not they

3 purpor t to define the term "natura l -born c i t i zen , " do not ,

4 because they cannot a l t e r Art i c l e I .

5 Now the 14th Amendment i s a separate i s sue , but it

6 also does not inc lude natura l -born c i t i z e ns , for reasons

7 t ha t I'll get to here in a moment.

8 In order to get there , we f i r s t have to remind

9 ourse lves of the ru les of cons t ruct ion t ha t were se t for th

10 by the ear ly Supreme Court in Marbury v. Madison and it has

11 been fol lowed ever s ince by every cour t .

12 The ru les of cons t ruct ion t ha t are appl icable here

13 are f i r s t , under Marbury v. Madison, Chief Jus t i ce Marshal l

14 s ta ted t ha t no clause in the Cons t i tu t ion can be const rued

15 in a way by any cour t t ha t would leave it without

16 independent meaning.

17 Now a corol lary to t h i s ru le i s any fu ture

18 amendments to the Cons t i tu t ion must not be const rued in a

19 way t ha t removes independent meaning from another c lause ,

20 unless t ha t amendment spec i f ica l ly s t a t e s t ha t it's changing

21 the e a r l i e r c lause , or t he re ' s no way to const rue t ha t

22 amendment in any other way other than changing the e a r l i e r

23 clause . So with t ha t ru le of cons t ruct ion in mind, we look

24 a t the fac t t ha t the Minor Court defined natura l -born

25 c i t i zen , and t ha t def in i t ion was:



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" ... it was never doubted t ha t a l l chi ldren

born in a country of parents who were i t s c i t i zens

become themselves , upon t he i r b i r t h , c i t i zens

a l so . These were na t ives , or natura l -born

5 c i t i z ens , as dis t inguished from a l i ens or

6 fo re igner s . "

7 So t he re ' s two elements to t h i s de f in i t i on .

8 Fi r s t , both parents have to be c i t i zens a t the t ime t ha t the

9 Defendant was born, and the Defendant had to have been born

10 in the count ry .

11 Now a lo t of people say t ha t t h i s i s dic ta and

12 t ha t , the re fo re , the Court doesn ' t have to follow it. It's

13 persuas ive , bu t it's simply d ic ta . That i s absolu te ly

14 i ncor rec t , and we wi l l prove t ha t beyond any doubt , s t a r t i ng

15 by looking a t the def in i t ions of hold ing, dic ta , and

16 precedent .

17 The def in i t ion from BLACK'S LAW of holding i s :

18 "A cour t ' s dete rmina t ion of a matter of law

19 p ivo ta l to i t s dec i s ion ."

20 Dicta i s the oppos i te :

21 "A cour t ' s discuss ion of points or quest ions

22 not r a i s ed by the record or i t s sugges t ion of

23 ru les not appl icable in the case a t bar . "

24

25

Now, as to precedent :

"A case becomes precedent only for such a



Page 14

1 general ru le as i s necessary to the ac tua l

2 decis ion reached."

3 What I 'm going to show i s t ha t the def in i t ion from

4 Minor was p ivo ta l to the dec is ion of t ha t cour t and i s ,

5 the re fo re , holding of t h a t cour t and, the re fo re , precedent ,

6 which i s binding - - Supreme Court precedent , b inding on

7 every cour t in t h i s country.

8 The def in i t ion was - - what the Minor Court had to

9 decide was whether or not Ms. Minor was allowed - - had a

10 r i gh t to vote under the 14th Amendment; however, it

11 spec i f ica l ly s ta ted tha t before it got to t ha t pa r t of the

12 ques t ion , it f i r s t had to determine whether or not she was a

13 c i t i zen .

14 Well, using the well-known doct r ine of j ud i c i a l

15 r e s t r a in t , the Supreme Court wi l l not reach a wi l l not

16 const rue a Cons t i tu t iona l clause i f it does not have to , to

17 answer the quest ion presented . And in t h i s case, Minor was

18 born in the United Sta tes and had both parents - - and both

19 parents were c i t i zens a t the t ime she was born. So,

20 the re fo re , what the Court did was it def ined natura l -born

21 c i t i zen and then spec i f ica l ly sa id she ' s a natura l -born

22 c i t i zen; the re fo re , we don ' t have to determine whether or

23 not she ' s a c i t i zen under any othe r ru le . I t was p ivo ta l

24 t ha t she was a natura l -born c i t i z en . The def in i t ion they

25 came to was pa r t of the holding and i s binding precedent .



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Now t he re ' s othe r language in t h i s paragraph t ha t

others point to as saying well , there was doubts about t h i s

pa r t i c u l a r de f in i t ion , even i f it's precedent , because the

paragraph goes on to say:

"Some author i t i e s go fu r ther and inc lude as

c i t i zens chi ldren born within the j u r i s d i c t i on

without reference to the c i t i zensh ip of t he i r

paren t s . "

However, the Court or it should be recognized

also t h a t the term "c i t i zen" i s not natura l -born c i t i z e n ,

and the term "c i t i zen" was spec i f ica l ly def ined by the Minor

Court on the previous page. In fac t , they spent a t l e a s t a

13 couple of paragraphs discuss ing what a c i t i zen was and

14 descr ib ing how it's a very broad term. And a t the end of

15 t ha t , they concluded t ha t when they say c i t i zen , they mean

16 nothing more than t h i s broad, nebulous term t ha t they don ' t

17 need to define and c a n ' t def ine . And in fac t , the r e s t of

18 the paragraph goes on to say - - goes on to r e f l ec t t h i s

19 j ud i c i a l r e s t r a in t t ha t the Minor Court was using when they

20 say for the purposes of t h i s case it i s not necessary to

21 solve these quest ions about the doubt of what a c i t i zen i s .

22 " I t i s su f f i c i en t for everything we have now

23 to cons ider t ha t a l l chi ldren born of [ c i t i zen]

24 parents within the j u r i s d i c t i on are themselves

25 c i t i zens . "



Page 16

1 In othe r words, Minor i s a natura l -born c i t i zen;

2 the re fo re , she ' s a c i t i z e n . And they moved on to the nex t

3 ques t ion , which was cons t ru ing, not the whole 14th

4 Amendment, bu t j u s t what r igh t s a r i se from the 14th

5 Amendment, whether or not she could have the r i gh t to vote .

6 And, by the way, t ha t Court held t ha t the 14th Amendment

7 does not create any new pr iv i l eges or immunities.

8 Therefore , someone who i s not qua l i f i ed as a

9 natura l -born c i t i zen to run for Pres ident before the 14th

10 Amendment i s not - - does not have t ha t r i gh t . Because the

11 14th Amendment d i dn ' t create any new r igh ts , they don ' t have

12 t ha t r i gh t a f t e r the 14th Amendment.

13 So, t ha t ' s the holding of Minor. A lo t of people

14 say t ha t Minor was overruled by Kim Wong Ark. That ' s

15 absolu te ly not t rue . The holding of Kim Wong Ark i s r i gh t

16 up here ( ind ica t ing) , and it's very l imi ted . There ' s lo t s

17 of caveats , t he re ' s l o t s of condi t ions , but the po in t i s

18 t h a t the Minor Court - - excuse me, the Kim Wong Ark Court

19 was determining what the Minor Court had l e f t behind. The

20 Minor Court had sa id we're not going to determine what a

21 c i t i z e n i s under the 14th Amendment because we don ' t have

22 to , because she ' s a natura l -born c i t i z e n . The Kim Wong Ark

23 Court had t h a t case because they had Kim Wong Ark whose

24 parents weren ' t c i t i zens when he was born, though he was

25 born here , i s he a c i t i z e n .



1Page 17

They answered t h a t quest ion and t h a t ' s a l l they

2 answered. Everything e l se t ha t they answered, everything

3 e l se t h a t ' s in the re , anything t ha t could poss ib ly be

4 cons t rued to change the holding of Minor, the def in i t ion of

5 natura l -born c i t i zen under Minor, was dic ta and i s ,

6 the re fo re , not binding and cer t a in ly , under the ru les of

7 cons t ruc t ion , cannot over ru le an e a r l i e r holding. Dicta

8 cer t a in ly c a n ' t over ru le a holding.

9 So the poin t here i s these cases d o n ' t c onf l i c t .

10 They might look l i ke they c o n f l i c t if you read them, but if

11 you look a t the hold ing of Kim Wong Ark and the holding of

12 Minor, they d o n ' t c onf l i c t . And when they c lea r ly d o n ' t

13 c onf l i c t , they cer t a in ly d o n ' t over ru le each o ther .

14 I f anyone was to argue t ha t the Minor def in i t ion

15 of na tu ra l -born c i t i zen i s unclear as to whether or not it's

16 requ i red to have one pa ren t or both pa ren t s , I would l i ke it

17 s t a t ed for the record t ha t the Minor Cour t ' s def in i t ion of

18 natura l -born c i t i zen uses the term "paren t s . " Paren t i s the

19

20

21

s ingu la r . I f the Court wanted to use pa ren t , it could have

used pa ren t . I f the Court meant mother , it could have used

mother ; if it meant f a ther , it could have used f a ther . I t

22 used the term "paren t s , " and t h a t has to be given, again

23 a ru le of cons t ruc t ion - - i t s p la in meaning. It's p la in

24 meaning i s both paren t s . So t h a t argument doesn ' t f ly .

25 In c los ing , t h i s case i s about the Cons t i tu t ion .



Page 18

1 Holding publ ic off i ce i s not about the ind iv idua l , it's

2 about serv ice to the pub l ic . Anyone who has run for publ ic

3 off i ce ought to know t ha t and t ha t means t ha t even i f an

4 indiv idual has an unfor tuna te s i tua t ion where they c a n ' t

5 r i se to the l eve l t ha t they want to - - po l i t i c s i s not a

6 career , a t yp ica l career f ie ld , where we want the person to

7

8

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r i se as fa r as they can. Pol i t i cs i s about serv ice to the

publ ic and t ha t should be kept in mind.

And my f ina l comment excuse me, l e t me make the

po in t for the record - - we've shown, I be l ieve , t ha t Barack

Obama's f a ther was not a c i t i zen of the United Sta tes ever,

ce r ta in ly during the t ime per iod when Barack Obama was born.

I don ' t th ink t ha t ' s ever been disputed by the Defendant

14 himse l f . And t ha t means t ha t he i s not Const i tu t ional ly

15 qua l i f i ed to hold of f i c e . It's not a s ta tement about h is

16 ab i l i t y , it's a s ta tement about h is Cons t i tu t iona l

17 qua l i f i ca t ions .

18 Fina l ly , the man - - the Defendant - - was ordered

19 to be here today and he ' s not here. His at torneys are even

20 boycot t ing t h i s hear ing . And I want it s ta ted on the record

21 tha t tha t shows a - - not j u s t a contempt for t h i s Court, but

22 a contempt for the Jud ic ia l Branch and - -

23 JUDGE MALIHI: I 'm not in te res ted in any

24 commentary on tha t , counsel .

25 Are you done with your argument?



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4 a.m.)

Page 19

MR. IRION: Yes, Your Honor.

JUDGE MALIHI: Thank you very much.

(Whereupon, the hear ing was concluded a t 9:50

C E R T I F I C A T E

I , Peggy J . Warren, do hereby c e r t i f y tha t the

foregoing pages rep re sen t a t rue and accura te t ransc r ip t ion

of the even ts which t r ansp i red a t the t ime and place s e t out

in the cap t ion , to the bes t of my a b i l i t y .

Peggy J . Warren, CVR-CM, CCR A-171

Documents

Georgia - Welden v Obama - Certified Transcript 1-26-12 Hearing tfb