A hearing Monday is set to determine whether the U.S. Justice Department will get its motion to dismiss a lawsuit challenging the constitutional eligibility of Barack Obama to hold the office of president or whether the case will move forward to be heard on its merits.

California judge David Carter scheduled a tentative trial date for the case for Jan. 26, 2010. But, to meet that trial date, the case must survive an Oct. 5 hearing on the Department of Justice motion to dismiss.

The California lawsuit is brought by several political candidates and party officials, including former U.S. ambassador Alan Keyes and Wiley Drake and Markham Robinson of the American Independent Party.

They are suing Obama alleging that he was not and is not eligible to be president under the U.S. Constitution’s demand for a “natural born” citizen in the Oval Office. Forty-six of the plaintiffs are represented by Orly Taitz, who has worked on a multitude of lawsuits over Obama’s eligibility, and two – Wiley Drake and Markham Robinson – are represented by Gary Kreep of the United States Justice Foundation.

Kreep told WND one of three things will happen Monday: 1) the judge will make no decision and choose to issue a decision later, 2) the judge could grant the Department of Justice’s motion and dismiss the case, or 3) all or part of the case will move forward.

Kreep said he doesn’t believe Carter will decide to issue a decision later.

“I think he’s ready to roll,” he said.

As for option 2, Kreep said the case will not be finished if the judge grants the DOJ’s motion to dismiss.

“If he does that, I know that I will file an appeal on behalf of my clients,” he said. “It’s up to Dr. Taitz what she does.”

Taitz declined to comment on the Oct. 5 hearing

In option 3, part of the case could be thrown out. If all or part of the case moves forward, Kreep said, “I would be surprised if the DOJ didn’t immediately file an appeal. The judge may knock out part of the case and we go forward and the DOJ appeals.”

He said if the case moves forward, the parties will begin discussing discovery, which is the right to see the records in contention.

However, Kreep said, “I do not believe that the Department of Justice will allow any discovery to go forward. They are going to do anything they can to block any discovery if we survive the motion. They could take up an appeal, they can file another motion, but they will do everything they can to block discovery.”

Justice Department lawyers representing Obama have claimed that the courts have no jurisdiction over any parts of the question.

According to Sept. 25 court documents the DOJ filed in response to Kreep’s opposition to dismissal, the DOJ states, “The arguments made by these plaintiffs, in large measure, completely ignore the fact that Barack Obama is the president of the United States and seek to treat him as simply a candidate for office. Try as they might, plaintiffs cannot conceal the fact that what they are really seeking in this case is nothing less than a determination by this United States District Court that President Obama should be removed from office. The preposterous nature of this assertion is readily apparent. No single United States District Court has the power to try the question of whether a sitting president of the United States should be allowed to remain in office.”

Kreep has requested immediate access to Obama’s records such as his original long-form birth certificate and his Occidental College records. The plaintiffs’ suspicion is that those records would, in fact, undermine the president’s statements that he is a “natural born” citizen, which could disqualify him. For example, an original birth certificate could indicate that it was a “delayed” filing, which could open the door for a birth location outside the United States.

Likewise, the Occidental College records could be significant if Obama attended on a program for foreign students, or represented himself as a foreign student at the time.

The DOJ also filed a separate response to Taitz’s opposition to dismissal on Sept. 25, stating, “Much of the opposition filed by these plaintiffs is a disjointed polemic, completely devoid of citation to any case or statutory authority. Defendants will not waste the court’s time, or that of undersigned counsel by seeking to respond to the many irrelevant statements and references made therein.”

In that filing, the DOJ also contends that the court lacks subject matter jurisdiction and the plaintiffs lack standing.

Both Taitz and Kreep have expressed significant differences of opinion in how the case should be handled. Should the lawsuit proceed, it will be the first time the merits of the dispute have been heard in open court.

As for Monday, Kreep told WND, “It’s all in God’s hands.”

WND has reported on dozens of legal challenges to Obama’s status as a “natural born citizen.” The Constitution, Article 2, Section 1, states, “No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President.”

Some of the lawsuits question whether he was actually born in Hawaii, as he insists. If he was born out of the country, Obama’s American mother, the suits contend, was too young at the time of his birth to confer American citizenship to her son under the law at the time.

Other challenges have focused on Obama’s citizenship through his father, a Kenyan subject to the jurisdiction of the United Kingdom at the time of his birth, thus making him a dual citizen. The cases contend the framers of the Constitution excluded dual citizens from qualifying as natural born.

Complicating the situation is Obama’s decision to spend sums possibly exceeding $1 million to avoid releasing an original long-form state birth certificate that would put to rest the questions.

WND also has reported that among the documentation not yet available for Obama includes his kindergarten records, Punahou school records, Occidental College records, Columbia University records, Columbia thesis, Harvard Law School records, Harvard Law Review articles, scholarly articles from the University of Chicago, passport, medical records, files from his years as an Illinois state senator, his Illinois State Bar Association records, any baptism records and his adoption records.

Because of the dearth of information about Obama’s eligibility, WND founder Joseph Farah has launched a campaign to raise contributions to post billboards asking a simple question: “Where’s the birth certificate?”

“Where’s The Birth Certificate?” billboard at the Mandalay Bay resort on the Las Vegas Strip

The campaign followed a petition that has collected more than 450,000 signatures demanding proof of his eligibility, the availability of yard signs raising the question and the production of permanent, detachable magnetic bumper stickers asking the question.

The “certification of live birth” posted online and widely touted as “Obama’s birth certificate” does not in any way prove he was born in Hawaii, since the same “short-form” document is easily obtainable for children not born in Hawaii. The true “long-form” birth certificate – which includes information such as the name of the birth hospital and attending physician – is the only document that can prove Obama was born in Hawaii, but to date he has not permitted its release for public or press scrutiny.

Oddly, though congressional hearings were held to determine whether Sen. John McCain was constitutionally eligible to be president as a “natural born citizen,” no controlling legal authority ever sought to verify Obama’s claim to a Hawaiian birth.

Your donation – from as little as $5 to as much as $1,000 – can be made online at the WND SuperStore. (Donations are not tax-deductible. Donations of amounts greater than $1,000 can be arranged by calling either 541-474-1776 or 1-800-4WND.COM. If you would prefer to mail in your contributions, they should be directed to WND, P.O. Box 1627, Medford, Oregon, 97501. Be sure to specify the purpose of the donation by writing “billboard” on the check. In addition, donations of billboard space will be accepted, as will significant contributions specifically targeted for geographic locations.)

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