Give Us Liberty

Understanding ‘The Jack Maskell Memorandum’ (Update)

Originally published November 25th, 2010 · 56 Comments

By Paul Hollrah, Guest Blogger

Paul R. Hollrah

By far the most frequently asked question in America since August 28, 2008, the closing day of the 2008 Democratic National Convention, is this: “Does Barack Hussein Obama meet the constitutional qualifications to serve as President of the United States?”  With every reason to believe that he does not, the second most-asked question has been, “How could every single member of Congress… all 535 of them… fail in their constitutional obligation to properly vet Obama’s qualifications before certifying the vote of the 2008 Electoral College?”
For the past two years Americans have been flooding congressional offices with demands for answers to these questions.  And now we know.  The answer to the first question is, “No, Obama is not eligible to serve as president because he is not a ‘natural born’ U.S. citizen.”  The answer to the second question is, “The Jack Maskell Memorandum.”
But before we approach the question of who Jack Maskell might be, and the role he plays in what history will doubtless record as the greatest single crime of all time, let’s first review the facts surrounding Obama’s eligibility.  Article II, Section 1 of the U.S. Constitution states that, “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; neither shall any person be eligible to that office who shall not have attained to the age of thirty-five years, and been fourteen years a resident within the United States.”
We know that Obama was not a citizen of the United States at the time the Constitution was adopted, we know that he was at least thirty-five years of age when he took office in January 2009, and we know that he had been a U.S. resident for at least fourteen years at the time he was nominated.  But is he a “natural born” citizen?  What is a “natural born” citizen, and how do we prevent someone who is not a natural born citizen from becoming president or vice president?
When the Founding Fathers met in Philadelphia in September 1787 to sign the final draft of the U.S. Constitution, the physical scars of the War of Independence from Great Britain were still visible all around them and a deep-seated animosity toward all things British colored every aspect of their daily lives.  So is it even conceivable that, just five years and eleven months after Cornwallis surrendered at Yorktown, the Founders would have affixed their signatures to a document that would allow an individual with divided loyalties – e.g., an individual with dual US-British citizenship – to serve as president or vice president of the United States?  Not likely.
That is precisely why the Framers found it necessary to include the words, “or a citizen of the United States, at the time of the adoption of this constitution…”  At the time the Constitution was adopted, every citizen of the thirteen colonies was a British subject, or a citizen of some other country.  And since the founders wished to exclude all those with dual citizenship (divided loyalties) from serving as president or vice president at any time in the future, they provided an exemption of limited duration for those who were officially U.S. residents at the time and who might wish to serve as president or vice president after reaching the age of thirty-five.
For example, George Washington was 57 years of age when he was inaugurated as our first president.  But Washington, born and raised in Virginia, had been a British subject during all of his 57-plus years.  Hence, as a means of qualifying a class of men for the presidency during the first thirty-five years of our nationhood, while preventing any man with dual or naturalized citizenship from ever serving as president, after a pool of “natural born” men had reached the age of thirty-five… limiting access to those offices only to those born to parents, both of whom were U.S. citizens… the founders included the words, “or a citizen of the United States, at the time of the adoption of this constitution…”
Few Americans, not even our distinguished members of Congress, have ever stopped to consider what those sixteen simple words mean, or, more importantly, who they exclude from presidential consideration.  That is why, after sitting silently in their chairs while the names of 365 Obama electors were read from the Speaker’s rostrum, not a single member of Congress rose to object… preferring instead to hide behind the legal skirts of the Congressional Research Service (CRS) and their Legislative Attorney, Jack Maskell.
In the days immediately following Barack Obama’s unlikely election in November 2008, members of Congress began flooding the CRS with questions about Obama’s eligibility.  Jack Maskell, a CRS Legislative Attorney drew the “short straw” and was assigned to provide members of Congress with legal cover.  Maskell’s recently-discovered memorandum, dated April 3, 2009 and distributed to all members of Congress, contains the following words:

“Many of the inquiries have questioned why then-Senator, and now President, Obama has not had to produce an original, so-called ‘long’ version of a ‘birth certificate’ from the State of Hawaii, how federal candidates are ‘vetted’ for qualifications generally, and have asked for an assessment of the various allegations and claims of non-eligibility status…

“Concerning the production or release of an original birth certificate, it should be noted that there is no federal law, regulation, rule, guideline, or requirement that a candidate for federal office produce his or her original birth certificate, or a certified copy of the record of live birth, to any official of the United States government; nor is there a requirement for federal candidates to publicly release such personal record or documentation.  Furthermore, there is no specific federal agency or office that ‘vets’ candidates for federal office as to qualifications or eligibility prior to return.”

Clearly, Mr. Maskell overlooked the words of the 20th Amendment, which reads in part, “If a president shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified…”
When members of Congress swear that they will “support and defend the Constitution of the United States against all enemies, foreign and domestic,” and that they will “bear true faith and allegiance to the same… so help me God,” they take upon themselves, by direct implication, the obligation to rule on the qualifications of those who emerge from the Electoral College as President and Vice President-elect… in spite of what Jack Maskell’s opinion might be.
Under the U.S. system for selecting our president and vice president, there are three distinct vetting opportunities.  The first occurs when the political parties certify their candidates to the state election boards so that ballots can be printed.  And although it is customary for the parties to certify the eligibility of their candidates under Article II, Section 1 of the Constitution, the Democratic Party made that certification in 2008 only to the State of Hawaii, which has a statutory requirement that such certification be made.  The remaining 49 states received no such certification in support of the eligibility of Barack Obama and Joe Biden.
The second vetting opportunity occurs when the members of the Electoral College meet on the Monday after the second Wednesday in December.  It is the obligation of all members of the Electoral College to cast their votes for individuals who are qualified, under Article II, Section 1. However, in spite of the clear knowledge that Obama had been born in 1961 with dual US-British citizenship, Democratic electors in December 2008 ignored that solemn responsibility.
The third and final vetting opportunity occurs during the first week in January following a presidential election when the Congress meets in joint session to certify the votes of the Electoral College.  It is the third and final fail-safe vetting opportunity.
So the question arises, can the Congress simply ignore its obligation to fully vet those selected as president and vice president-elect by the Electoral College?  The answer to that question, in spite of Jack Maskell’s advice to Congress, is a resounding “no.”  As Edwin Viera, Jr., Ph.D., J.D., a leading authority on the Constitution, argues, “… the question of Obama’s eligibility vel non is not within the discretion of Congress to skirt or decide as its Members may deem politically or personally expedient…  Even by unanimous vote, Congress cannot constitutionally dispense with the requirement that Obama must be ‘a natural born citizen,’ by simply assuming that he is such…”
But what if the members of Congress, on the advice of CRS counsel, fail in that responsibility?  Dr. Viera argues that, if no objection is made on the basis that Obama is not a “natural born” citizen… “the matter cannot be said to have been settled to a ‘constitutional sufficiency’ (emphasis added),” because Congress has no power to simply waive the eligibility requirement… Maskell memorandum or no Maskell memorandum.
When we consider the difficulties involved in reversing the effects of two years or four years of an illegitimate presidency, it is difficult to imagine any single written document in recorded history that has had, or will have, the devastating effect on freedom and the rule of law that the Jack Maskell Memorandum will ultimately have.  When Maskell drafted his memorandum and affixed his signature, it is unlikely that he had any concept of the terrible consequences of his words.  If only he had folded it into a paper airplane and tossed it out the window…
To read previous posts by Paul Hollrah, click here.