[Guest post by Aaron Worthing; if you have tips, please send them here. Or by Twitter @AaronWorthing.]
So yesterday we had Birthmageddon and the larger reaction is spreading out. For one thing, Drudge had a fun little Drudge-tapositon (Drudge juxtaposition) as follows:
Which is cheap, but funny. Meanwhile, Jim Hoft over at Gateway Pundit is really flogging this “layering” story, asserting that the long form birth certificate is a fake. I pointed out yesterday where the National Review had debunked the claims, here. Obviously Jim is hoping to get on the bottom floor of a new Rathergate type scandal. And I will be the first to admit that this video, showing the user pulling the document apart is creepy:
But the thrust of the National Review’s article is that this is a product of what Adobe does on its own, and not of any human being. I won’t pretend to know who is right in that battle of experts. But I think the way to settle it is to take a real document, feed it into a similar .pdf scanner and then see if the same thing happens, much as years ago Charles Johnson reproduced the Killian memos by taking a copy of Word and just typing it in. If you use the same scanner on a document you know is genuine, run it through, and it still produces the same “layering” effect, then it would prove National Review’s argument that it is not evidence of fakery.
And let me openly suggest that any enterprising person with the right equipment should consider running that experiment. I don’t have the programs and tools needed to do that, but if you can, let me know. Please. Let’s put this to bed.
Still, I will say right now I am very skeptical of the claim that Obama would photoshop a birth certificate, because with any conspiracy, you have to begin by asking how difficult it would be to cover it up. Now, in my personal estimation it would not be as hard as faking a holocaust or a September 11, but still if Obama had forged this birth certificate, he would be gambling on the silence of every single person who might be able to get into those archives and prove him wrong. They can’t all be Democrats and even if they were, I don’t believe most Democrats would go along with fraud. It takes one person and a copying machine to throw a monkey wrench into his plan.
That being said, having gone a few rounds about this, I think I get what made some sense of the position of birthers (or even just people who wanted him to release the certificate already) who just wanted to see the certificate and were capable of being satisfied by it and it might explain why Patrick and I are annoyed to see that 1) it wasn’t actually very difficult to get the certificate, and 2) there was nothing in the documents themselves that justified being this coy. You see, ingrained in most lawyers is a concept called the Best Evidence rule. And despite this being a court rule, I think that the average person will tend to follow its logic, too.
The best evidence rule starts with the notion that the best evidence of the contents of a writing is an original copy of the writing. That applies here in two different ways. First, it means intuitively lawyers do not like using the short form birth certificate because it is not the original birth certificate. It’s not even pretending to be the original. But second, on a metaphorical level, we ask, “what is the best evidence of his eligibility to be president?” The constitution puts only a few bare minimum qualifications on being president. The person must be a naturally born citizen, at least thirty-five years old, and a resident of the U.S. for at least fourteen years of his or her life. And for the first two requirements, it is intuitively obvious that the best evidence of where you were born, and your current age, is your birth certificate.
Now, the law recognizes that sometimes things happen and documents are destroyed or otherwise become unavailable. We are a long way from the day when destruction of a contract meant you lost all rights under that contract. So then we look to other forms of evidence, such as the testimony of witnesses at the time, and similar evidence. For instance, in one case I had a missing contract. So I established by a witness that at the time there was a form contract my client used. I put into evidence an example of that form contract. And then I had my witness testify that the parties signed the contract, without alteration. And that was sufficient to prove 1) that the contract existed and 2) what its terms were. And from then on, for all intents and purposes, that form contract was treated as the contract.
So all birthers were looking for was the best evidence. Which isn’t completely off base. I still think the other evidence was long ago sufficient to establish Obama’s birth in America, but I think many Americans intuitively knew this was not the best evidence, and wondered why they couldn’t just give us that. Why was that so hard?
And there is another wrinkle, too, which explains why the fact it was so easy to get the damn thing offended me so deeply. You see, before you can start presenting that that “second best” evidence, you have to establish that the best evidence is not available. In that case I just mentioned, I had to show I had subpoenaed every person under the sun who might have a copy of the document and obtain their testimony that they looked and couldn’t find it. And only then, when the contract was proven to be truly lost, could I start talking to the witnesses about the form contract.
And obviously Obama skipped that step. For instance, consider this letter. It is written by Judith Corley, a Partner at Perkins Cole, to the Director of Health in Hawaii. Read the whole thing and look at some of the details. For one thing, it was written on April 22 of this year. So in the end it only took them five days to get the thing. And read the language of the letter. This isn’t complex principles of law. It’s all common sense: my client would like to waive all privacy concerns and have a copy of his original long form birth certificate created. They expected us to rely on second best evidence, when the best evidence was available all along. Which is just annoying.
And let’s notice something else. To do this they hired a partner in a law firm. I mean read that letter. There isn’t a word of that you need a J.D. to understand. Any idiot could have written that letter. You didn’t need a lawyer, let alone the partner in a D.C. firm. And please, God, tell me that this person was not retained with taxpayer dollars (although this article suggests she was paid for by the Obama campaign). Now of course the bulk of the writing was probably done by a lower associate at upwards of $100 an hour, with the partner only reviewing it and signing it—at a minimum of $500 an hour, most likely. But still, it’s overkill. And that is after over seventy suits over this issue. I guess we can call it stimulus for the legal community.
So bluntly, I have had a reassessment of where the birthers were coming from. Obviously some might have been driven by the deep desire to avoid a truly terrible president as I have supposed in the past. And while I am sick of the media claiming everyone who thinks Obama is less than the messiah are racists, yeah, maybe a few of them were racists. But I don’t think the majority of them were. And at its core, Obama was refusing to provide the best evidence of his eligibility for office, and now we know he had no legitimate excuse for withholding it. And the ease at which it could have been obtained, only makes it clear that their request to see it was perfectly reasonable, and his refusal to show it was not.
Now maybe those birthers will get unreasonable very quickly and refuse to accept this best evidence on one theory or another. As of yesterday, truthfully, I think their request and their focus on that issue was reasonable as revealed by just how easy it was to obtain the birth certificate. Obama should not have withheld it.
[Posted and authored by Aaron Worthing.]