Lawyer Threatened With Monetary Sanctions For Subpoenaing Obama’s College Records

OBAMA MEMORANDUM:


My Administration is committed to creating an unprecedented level of openness in Government.  We will work together to ensure the public trust and establish a system of transparency, public participation, and collaboration. Openness will strengthen our democracy and promote efficiency and effectiveness in Government.
…….unless said openness pertains to Constitutional eligibility questions. These  records will be kept under lock and key and will never see the light of day.
Alan Keyes, a plaintiff  in one of the many lawsuits seeking to verify whether Barack Obama qualifies under the U.S. Constitution’s requirements to occupy the Oval Office, is questioning the  tactics of the Obama’s lawyers.

The Keyes case is being handled largely by Gary Kreep of the United States Justice Foundation who issued a subpoena to Occidental college to disclose Obama’s records:

The lawyer for the college, Stuart W. Rudnick of Musick, Peeler & Garrett, urgently contacted Fredric D. Woocher of Strumwasser & Woocher.

“This firm is counsel to Occidental College. The College is in receipt of the enclosed subpoena that seeks certain information concerning President-Elect Barack Obama,” he wrote via fax. “Inasmuch as the subpoena appears to be valid on its face, the College will have no alternative but to comply with the subpoena absent a court order instructing otherwise.”

Within hours, Woocher contacted Kreep regarding the issue, telling him, “It will likely not surprise you to hear that President-elect Obama opposes the production of the requested records.

“In order to avoid the needless expense of our bringing and litigating a Motion to Quash the subpoena, I am writing to ask whether you would be willing to agree voluntarily to cancel or withdraw the subpoena.”

Woocher warned, “Please be advised, in particular, that in the event we are forced to file a motion to quash and we prevail in that motion, we will seek the full measure of monetary sanctions provided for in the Code of Civil Procedures.”

Woocher warned, “Please be advised, in particular, that in the event we are forced to file a motion to quash and we prevail in that motion, we will seek the full measure of monetary sanctions provided for in the Code of Civil Procedures.”

Kreep, out of town for a business trip, did not respond immediately, and the motion eventually was filed. It states that the records, which could reveal on what name Obama attended classes at Occidental and whether he attended on scholarship money intended for foreign students, “are of no relevance to this moot litigation.”

Alan Keyes responded on his blog:

Though not unexpected, this motion confirms Obama’s ruthless determination to destroy anyone who continues to seek the information the Constitution requires. Why should they demand penalties against citizens who are simply seeking the enforcement of the Supreme Law of the Land? It is simply because their persistence runs contrary to the will of a supposedly popular demagogue? This smacks of tyrannical arrogance. That Obama thus signals his intent to bring financial ruin on those who won’t accept his cover-up of the circumstances of his birth is a tactical escalation. It confirms the common sense suspicion that he won’t act forthrightly in this matter because he has something to hide.

Obama has promised to work with the American people “to ensure the public trust and establish a system of transparency”. Releasing these sought after records would go a long way toward ensuring public trust. Instead, his lawyers threaten monetary sanctions against those who seek them. Something is wrong with this picture.

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24 Responses to “Lawyer Threatened With Monetary Sanctions For Subpoenaing Obama’s College Records”

  1. smrstrauss Says:

    If someone asked me to please tell her the number of rose bushes in my garden, I would tell. But, if someone sued me for the information, claiming that they have the right to KNOW the number of rose bushes in my garden, I would fight her.

    This is what you have in the case where Alan Keyes is trying to subpoena Obama’s college records. There is no evidence that Keyes asked to see the records nicely. If he had, maybe he would have gotten what he wants.

    But he will not win this way.

    Why not? Because Occidental College has a right not to show the files. They are private files. Thus, if a corporation does not have to disclose a trade secret in a lawsuit in which it is not a party, and a private club does not have to disclose its membership policies, then Occidental does not have to show its private records either.

    Added to the fact that it has a right to keep the records private, it has a legal responsibility under US Federal Law to keep them private as well. This is under what is known as The Buckley Amendment.

    Have you ever heard of the Buckley Amendment? Its long name is the Family Educational Right to Privacy Act of 1974.

    It is a federal law that guarantees the privacy of student records.

    http://www.uncw.edu/fac_handbook/policies/federal/buckley.htm

    http://www.dso.ufl.edu/sccr/FERPA.php

    And, it is interesting that the Buckley Amendment is named after Former US Senator James L. Buckley, who was William F. Buckley’s older brother.

    http://en.wikipedia.org/wiki/James_L._Buckley

  2. nicedeb Says:

    The question isn’t, why does Occidental College keep the records private. The question is, why doesn’t Obama release them like other Presidents and Presidential candidates have done, when it was requested?

  3. Blackiswhite, Imperial Consigliere Says:

    Because Occidental College has a right not to show the files. They are private files. Thus, if a corporation does not have to disclose a trade secret in a lawsuit in which it is not a party, and a private club does not have to disclose its membership policies, then Occidental does not have to show its private records either.

    This is a bad analogy and is not true. Perhaps you failed to read the entire post which contained the following quote from Occidental’s counsel:

    “Inasmuch as the subpoena appears to be valid on its face, the College will have no alternative but to comply with the subpoena absent a court order instructing otherwise.”

    This is a true statement. Unless there is a valid legal priviledge the College can assert on its own behalf, it must comply with the subpeonea. However, because they are not a party in the controversy in question, they may, and did contact the party in question to allow the party to challenge the subpeonea on whatever legal grounds or privildge the party may assert as a defense to the production of the subpeoneaed documents. While such a motion is pending in front of the court, Occidental will not be required to comply with the subpeonea.

    Now the Buckley Act may offer a valid defense; in all honesty I am not privy to either parties’ legal arguments. What I do know is to claim that it is a ‘private file’ will land you on the wrong end of a ruling, and depending on the experience of counsel, just might find you facing a Rule 11 sanction.

    And you did a nice job of skirting the point. If he wants to produce an appearance of transparency, then why, oh why, would he fight so hard to keep something secret that his predecessors in office released without controversy?

  4. reeko Says:

    regardless of the merit of these multiple “eligibility” cases, there is a definite pattern of denial and obfuscation of records by the Obamabots. the list of these denied/blocked records is enormous, and deal with every single facet of his life… and yet he became President?

    ummm, methinks this is going to be the makings of the smallest Presidential Library in the universe. correct that – it will be the largest BUILDING (maybe larger than the Sears Tower) but it will only contain, apparently, two books.

    “Dreams From My Father’s Audacity” or some such sh1t… ghost written by some raving patriot named Dr. Bill Ayers.

    can’t wait. ;)

  5. Dr.D Says:

    Perhaps smrstrauss has been out of the country for the past 12 months or so while all manner of people have been asking BO and every institution ever connected with him to produce various records relating to his past. He has covered his tracks masterfully; he has no past, or so it would seem. Of course, most aliens have very few records in the USA.

    The fact that the citizens of the US voted this man in as president, in spite of knowing of his willful refusal to provide any of these fundamental documents about himself – legitimate birth certificate, college documents, etc. — reflects very badly on the intelligence of Americans. It says that we are are a naive, wishful people, living in a fantasy, and totally ungrounded in reality. The wake up is going to be very harsh and painful when it comes soon.

  6. Betty Says:

    Great post Dr. D. His records most likely state that he is a foreign student. My heart aches for this country.

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  8. smrstrauss Says:

    Re: “Inasmuch as the subpoena appears to be valid on its face, the College will have no alternative but to comply with the subpoena absent a court order instructing otherwise.”

    Yes, of course. So the normal action, which I think that they have done already, or will, is to ask the court to instruct otherwise. This is known as “voiding the subpoena.”

    And this they have done or will do because they have the right to keep those records secret and are required to keep them secret under the Buckley Amendment.

  9. smrstrauss Says:

    Re: “why doesn’t Obama release them like other Presidents and Presidential candidates have done, when it was requested?”

    (1) The campaign is over. IF any presidents or presidential candidates release their college records it is during the campaign.
    (2) He wasn’t asked nicely to show his records. The other side claimed that they had the RIGHT to see his records, and they are trying to force the disclosure of his records. He can validly feel resentment against someone who did not ask nicely and is trying to force something, and he can also feel that he and Occidental have the right to keep those records private.
    (3) Please cite some presidents and presidential candidates who made their college records public? Are you referring to Teddy Roosevelt, FDR, Truman, Eisenhower, Kennedy, LBJ, Nixon, Ford, Jimmy Carter, Etc.? (None of them ever made their college records public.)
    (4) The quotation at the top of the page refers to “openness in government.” He has never said anything about opening his personal files, or the personal files of anyone in his administration.
    (5) If you still feel that Obama should release certain information, why not ask for it nicely? I suppose a nice letter to the White House spelling out exactly what you want and why would at least get you a reply. You catch more flies with honey, they say.
    (6) But if you think that a lawsuit will win this information, you are wrong. It cannot be disclosed without Obama’s permission under the Buckley Amendment.

  10. smrstrauss Says:

    Re: “legitimate birth certificate.”

    He HAS posted his legitimate birth certificate. That is the Certification of Live Birth that he posted. It turns out that the Certification of Live Birth is the ONLY official birth record that Hawaii issues these days.

    How do I know? The answer is that I asked them repeatedly, and the answer has always been: “We send out only the Certification of Live Birth.” You can check, by asking your own questions by e-mail at vr-info@doh.hawaii.gov

    So all the questions about why doesn’t he post the long-form birth certificate have two simple answers:

    (1) The Certification of Live Birth is THE official birth certificate, it shows that he was born in Hawaii, and it is legally sufficient to prove it; and

    (2) Unless he has kept the original birth certificate and not mislaid it, all that he can post is what Hawaii will send him, which is only the Certification of Live Birth, which is what he has already posted.

  11. nicedeb Says:

    1. The campaign is indeed over, and these questions were asked and not answered during the campaign.

    2. You’ve got to be kidding me.

    3. George Bush, John Kerry, and Al Gore’s records were released when they were sought.

    http://www.boston.com/news/nation/washington/articles/2005/06
    /07/yale_grades_portray_kerry_as_a_lackluster_student/

    http://www.larryelder.com/Gore/goredubiousrecord.htm

    John McCain admitted he graduated 894th out of 899 at the Naval Academy, but his Academy records were never made an issue. He did release his complete Military records, as well as nearly 1200 pages of his medical records because his health WAS made an issue during the campaign. Did Obama release his medical records? Hmmmm.hmmmm….let me think…how about NO, of course he didn’t. Obama provided the media with a one-page undated letter from a doctor. Maybe interested reporters didn’t ask nicely enough.

    4. Obama wants to be seen as a great proponent of transparency and openness.

    http://nicedeb.wordpress.com/2009/01/23/funny-joke-obama-promises-to-be-held-to-a-new-standard-of-openness/

    As recent events within the government, as well as in his personal life, suggest, that is total B.S.

    5. Would pretty please with sugar on top help?

    6. Exactly.

  12. nicedeb Says:

    The Certification of Live Birth may well be legit but it does not conclusively show that he was born in Hawaii. It remains to be seen whether it indicates a Hawaii birth, or was generated after the Obama family registered his Kenyan birth in Hawaii.

    The only way to know where Obama was actually born is to view his original birth certificate from 1961 that shows the name of the hospital and the name and signature of the doctor that delivered him.

    I tend to think he has something to hide by not releasing the vault copy, whether it’s his place of birth, or some other thing, I don’t know.

  13. Blackiswhite, Imperial Consigliere Says:

    Yes, of course. So the normal action, which I think that they have done already, or will, is to ask the court to instruct otherwise. This is known as “voiding the subpoena.”

    Are you being deliberately obtuse, or do you really have a problem with reading comprension? The school’s counsel has already indicated that they do not have a valid objection. Obama, through his lawyers, can move to quash the subpeonea based on a valid priviledge, but discovery rules are generally liberally applied and a court generally can order the release of ‘private’ or otherwise legally protected records with a limitation on their use and or release, despite your opinion to the contrary.

    I’m really not sure where you got your law degree, but I suggest you seek a refund.

  14. smrstrauss Says:

    Re: “The school’s counsel has already indicated that they do not have a valid objection.”

    Are you willing to bet that the school, I repeat, the school, will not move to quash the subpoena?

  15. smrstrauss Says:

    Re: “His records most likely state that he is a foreign student.”

    Let’s suppose that they do. Does that make him a foreign student? No, it merely shows that Occidental College may have thought that he was a foreign student.

    In fact, he was never a foreign student because he was never a foreigner. He was never a citizen of Indonesia. How do I know? I called up the Indonesian Embassy in Washington and asked them. You can check by calling: (202) 775 – 5200.

    There seems to be a fair number of lawyers on this blog, so let me pose a legal question. Suppose that the Obama case ultimately came to court and the plaintiffs had to prove that he was born in a foreign country. They have to disprove the Hawaiian birth documents.

    So, the defense calls the Ambassador of Kenya, has him sworn in, “Sir, was Obama born in Kenya??” Answer: “NO.”
    Thank you very much.

    Then it calls thye Ambassador of Indonesia: “Sir, was Obama ever a citizen of Indonesia.” Answer: “NO.” Thank you very much.

    Then they call the officials of Hawaii. “Is that document an official document of Hawaii?” Answer “Yes.” Does it say that Obama was born in Hawaii: Answer “Yes.” “Is there any provision under Hawaii law for someone to be issued a Hawaii birth document that specifically says Born in Honolulu, if she or he was not born in Honolulu.” Answer: “NO.”

    Who wins the case?

  16. smrstrauss Says:

    Re: “The campaign is indeed over, and these questions were asked and not answered during the campaign.”

    When a candidate does not answer a question, and people think it is important, they vote against him.

    If a candidate does not think it important to answer the question, he runs the risk of losing votes. If he still thinks it is worthwhile not to answer, that is his right.

    The campaign is over. If he did not think it important then, he will not think it important now.

    However, as I said before, if you ask nicely, who knows what may happen. After all, you may be a legitimate historian trying to show how Obama’s experience at Occidental College was important to his formation, or that he got special privileges, or that he did not get special privileges. He doesn’t known.

    But if you try to get it as part of a lawsuit claiming that he is not eligible and that you have a RIGHT to see the documents, he is likely to fight that lawsuit. (And win.)

  17. nicedeb Says:

    When a candidate does not answer a question, and people think it is important, they vote against him.

    That is if the media has done its job of reporting the questions and non answers, as you well know they did not.

    Besides his Occidental school records and birth records, there’s also his medical records, Il State legislative records, his attorney client list or billing records, his senior thesis from Columbia University, and all other records from Columbia, and his Harvard Law School records that he refused to release. The media allowed him to get away with keeping it all secret, and you know that if a Republican had done the same he would have been raked over the coals.

  18. Blackiswhite, Imperial Consigliere Says:

    Re: “The school’s counsel has already indicated that they do not have a valid objection.”

    Are you willing to bet that the school, I repeat, the school, will not move to quash the subpoena?

    I won’t take your money. The Motion to Quash has already been filed, by Obama’s well-heeled California counsel in this matter, not by the school’s counsel, which does not have a valid priviledge to assert in this matter. You don’t have to take my word for it. Take 10 minutes and follow some of the links yourself. However, since I am skeptical of your ability to hone in on the pertinent points, I’ll give you a little help with these quotes from an article describing and citing the Motion to Quash:

    It states that the records, which could reveal on what name Obama attended classes at Occidental and whether he attended on scholarship money intended for foreign students, “are of no relevance to this moot litigation.”

    Which is nice to assert, but without more, just makes for an assertive motion. Its the kind of puffery I’d expect from any opposing counsel that is trying to shut down discovery, especially discovery they don’t want me to get.

    The motion also claims the petitioners failed to serve the subpoena properly.

    I looked at the subpeoneas in the link above, I looked at the California Code rules on document subpeoneas. Without more, I cannot say if this is true or not…if that is the only defect, I imagine he will issue another.

    “The subpoena directed to Occidental College should therefore be quashed. Alternatively, this court should issue an order directing that the deposition of the custodian of records of Occidental College not take place,” the firm working on Obama’s behalf stated.

    “The central issue in this lawsuit … is whether any Respondent had a legal duty to demand proof of natural born citizenship from Democratic Party’s nominee,” the motion said. “None of the documents sought by petitioners could possibly assist in answering this question.”

    Now the second paragraph is at least interesting. To paraphrase, they are essentially claiming that the records are not relevant. However, California, like virtually every jurisdiction in this country is fairly broad in what it will allow parties to request in discovery. From California’s CODE OF CIVIL PROCEDURE, SECTION 2017.010-2017.020 :

    2017.010. Unless otherwise limited by order of the court in accordance with this title, any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence. Discovery may relate to the claim or defense of the party seeking discovery or of any other party to the action. Discovery may be obtained of the identity and location of persons having knowledge of any discoverable matter, as well as of the existence, description, nature, custody, condition, and location of any document, tangible thing, or land or other property.

    Anyone who ever took a civil procedure course should recognize the language in this quote, especially the portion I italicized. This language is typically very liberally construed to allow discovery of evidence that is not necessarily relevant if it is at all likely to produce evidence or links to evidence that is relevant. This becomes important because of this quote, presented in the December 8, 2008 WorldNetDaily article that appears to quote the original Complaint:

    “This proof could include items such as his original birth certificate, showing the name of the hospital and the name and the signature of the doctor, all of his passports with immigration stamps, and verification from the governments where the candidate has resided, verifying that he did not, and does not, hold citizenship of these countries, and any other documents that certify an individual’s citizenship and/or qualification for office.”

    Obama’s Occidental Records certainly fall into this classification.

    In case you’re wondering about the standard the Court will use, the Code provides that, as well:

    (a) The court shall limit the scope of discovery if it determines that the burden, expense, or intrusiveness of that discovery clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence. The court may make this determination pursuant to a motion for protective order by a party or other affected person. This motion shall be accompanied by a meet and confer declaration under Section 2016.040.

    I also note that the article discussing the motion to quash does not cite the Buckley Act. I had to take an extra three minutes to see that your links did not cite the text of the law itself, but another minute and a visit to the US Department of Education Website revealed a page with more information on the act. Of particular interest was the following:

    Generally, schools must have written permission from the parent or eligible student in order to release any information from a student’s education record. However, FERPA allows schools to disclose those records, without consent, to the following parties or under the following conditions (34 CFR § 99.31):

    School officials with legitimate educational interest;

    Other schools to which a student is transferring;

    Specified officials for audit or evaluation purposes;

    Appropriate parties in connection with financial aid to a student;

    Organizations conducting certain studies for or on behalf of the school;

    Accrediting organizations;

    To comply with a judicial order or lawfully issued subpoena;

    Appropriate officials in cases of health and safety emergencies; and

    State and local authorities, within a juvenile justice system, pursuant to specific State law.

    Did you see the part I conveniently highlighted for you? That’s why Obama’s attorneys did not cite it.

    You’ll find this here: http://www.ed.gov/policy/gen/guid/fpco/ferpa/index.html

    Now none of this is a guarantee that the Judge won’t grant the motion. I tell my clients every day that litigation is a crap shoot, even when you have a “sure thing”. What I am saying is that the justification for seeking the motion to quash is weak, and your take on the ‘privacy’ defense based on the Buckley Act is flat out wrong. And as for this sterling remark:

    But if you try to get it as part of a lawsuit claiming that he is not eligible and that you have a RIGHT to see the documents, he is likely to fight that lawsuit. (And win.)

    You are demonstrably wrong. Discovery is how you get the evidence. If gathering evidence was just calling embassies and asking the questions you asked, it would never be a successful process. If Keyes’ counsel had confined himself to such superficial methods, he would probably be committing malpractice.

    Putting aside your silly contention that asking Obama nicely for his records would get a different result than the subpeonea, I instead ask you this not-so-hypothetical hypothetical:
    You have a person who ran for federal office, one that requires that the candidate actually be born on US soil in order to be eligible for office. There are certain ‘irregularities’ that come to light throughout the campaign, including sections of the candidate’s self-agrandizing and insufferably self-centered autobiographies that raise questions about the candidate’s eligibility to hold office. When challenged in court by citizens who believe based on the irregularities, believe the candidate to be ineligible, the candidate, who now has a forum and free publicity to unquestionably prove his eligibility to hold the office by simply ponying up the necessary documents. Instead, the candidate hires very expensive legal talent to spend additional sums of money to challenge the lawsuits and to actively resist discovery. He does this not once, but four times. As a an experienced attorney, I can tell you that I would counsel said client to spare himself the considerable expense and time and hassle and produce the documents, unless he has something to hide. Especially in more than one lawsuit.

    By the way, the whole “Please be advised, in particular, that in the event we are forced to file a motion to quash and we prevail in that motion, we will seek the full measure of monetary sanctions provided for in the Code of Civil Procedures.” thing? They should tread lightly, because it goes both ways. Again, from the Code of Civil Procedures section quoted above:

    b) The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion for a protective order, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.

  19. reeko Says:

    go get em Blackiswhite! as i’ve mused before, if Obama and his enablers are successful in keeping all of his papers and documents secret/destroyed… then will we see the smallest Presidential Library ever?

    so far, it will have two books. nothing else. ;) reeko

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