© 2016 jbjd
CORRECTED and UPDATED (IMPORTANT) 01.10.12
Please don’t be misdirected into believing that U.S. Senator (R-TX) Ted Cruz’ latest ‘birth certificate’ shenanigans have put his eligibility matter to rest.
It is Friday, January 8, 2016. Over-sized headlines on Drudge proclaim in huge letters that Presidential candidate Ted Cruz has produced his mother’s birth certificate showing she was born in the U.S.A., implying this alone establishes his Constitutional eligibility to be President (as a natural born citizen). But trust me; thus far he has failed to provide documentary evidence that supports a rational legal conclusion he is even a U.S. citizen, let alone natural born. It’s true. It’s all here.
First, a brief legal primer on determining U.S. citizenship at birth, for a child born in Canada.
The status of U.S. citizenship is determined by examining the U.S. Code in effect at the time of birth. Cruz was born in 1970, in Canada. Does that make him a U.S. citizen? The applicable U.S. Code says,
U.S. citizenship to a child born in Canada [in 1970] whose father [admittedly] is not a U.S. citizen is conditioned on both 1) the U.S. citizenship of the mother; and 2) her having lived in the U.S. for
five (5) 10 (ten) years, two (2) five (5) of which must have occurred past the age of 14. (8 U.S.C. 1401, Act 301 (g)) June 27, 1952, ch. 477, title III, ch. 1, § 301, 66 Stat. 235)
Thus, at a minimum; an application of facts to law that will determine whether Cruz is a U.S. citizen would require at least two additional documents: his birth certificate, and the birth certificate of his mother. And as this Salon article written by Steven Lubet, the Williams Memorial Professor of Law at Northwestern University demonstrates; the fact that determining his citizenship would require both birth certificates has been public knowledge since at least as far back as 2013, the year Senator Cruz took office.
Ted Cruz’s origins continue to haunt him
[subtitle omitted by jbjd]
by Steven Lubett
In order to fulfill his promise to the voters, Cruz must therefore submit proof that he is a U.S. citizen, which will be trickier for him than for most people. Cruz has thus far released only his Canadian birth certificate, which confirms that he was born in Calgary, Alberta, in 1970, and additionally states that his mother was born in Wilmington, Dela. The second part is crucial – Cruz’s only claim to U.S. citizenship through his mother – but it is also hearsay. The birth certificate is primary evidence of Cruz’s own birth, but the entry about his mother merely records her assertion to the Alberta Division of Vital Statistics. Even though I don’t personally dispute what he says, “My mother said so” is not what is usually meant by “proof.”
How, then, can Ted Cruz prove his U.S. citizenship to the satisfaction of the Canadian authorities? He could submit his passport, or perhaps the document called a Consular Certificate of Birth Abroad (if his parents obtained one), but those would have the same hearsay problems as his birth certificate. The only sure-fire evidence, therefore, would be his mother’s birth certificate, presumably issued when she was born in Delaware.
In an article entitled “Dual citizenship may pose problem if Ted Cruz seeks presidency,” The Dallas Morning News reported in August 2013, “For the first time, Cruz released his birth certificate Friday in response to inquiries from The Dallas Morning News.” An image of the document appeared on the site. Information had been filled in on what looks like an official government form captioned: “Division of Vital Statistics, Department of Health Edmonton, Certificate of Birth.” Id. On the line for mother’s birthplace, someone had typed “Wilmington, Delaware, U.S.A.” Id.
At this same time, Cruz did not release the other document we have established is vital to his U.S. citizenship validation, which is the U.S. birth certificate for his mother.
(Please click on that link above to The Dallas Morning News from August 2013; and keep in mind, we’re talking about events which occurred three years ago. Then, scroll down the page till you reach the embedded Daily Caller video entitled “Trump plays birther card on Ted Cruz”; it shows a clip from of ABC’s “This Week” with George Stephanopoulos broadcast in August 2013, featuring a segment with Jon Carl on the ground at the Iowa State Fair. Play that whole video. It opens with Stephanopoulos: “Every August the Iowa State Fair features pork tenderloins, deep-fried Twinkies, a whole bunch of ambitious politicians with the White House in their sights. Forget that it’s three years before the next election, it’s never too early, Presidential hopefuls are out in force across the Hawkeye state this week-end.” Then, it cuts to Carl, at the Iowa State Fair. “We even ran into Donald Trump out here… he says that he might run.” What follows is Carl’s exchange with Trump. Carl asks for Trump’s “assessment of the field,” and goes down the names. “Ted Cruz.” Trump loves his opposition to Obamacare. Then, Carl asks about “Trump,” citing his history of questioning Obama’s birth certificate. This leads to a question from Carl about Cruz’ eligibility, pointing out, Cruz was born in Canada, but his mother was an America citizen. Trump’s abbreviated response: “Look, that will be ironed out…”)
Three years later, Presidential candidate Trump raises the specter his fellow candidate, Cruz, might have a problem with Constitutional eligibility. Days later, on January 8, 2016, in the article linked on Drudge‘s headline, Breitbart announced, “The Cruz for President campaign provided Breitbart News exclusively with the birth certificate.” The ‘birth certificate’ they were talking about is for Cruz’ mother; an image of what purports to be that document appeared on the site. Information had been filled in on what looks like an official government form captioned: “State of Delaware, Standard Certificate of Birth.” Id. On the line for mother’s birthplace, someone had written “Wilmington, Delaware.” Id. For whatever reason, Breitbart provided readers with no explanation as to how the Cruz campaign transmitted this ‘document’ to them. The source code for the image displayed in the article contains only a Breitbart electronic trail; it is posted on the Breitbart Scribd page, with no visible attribution to the Cruz campaign.
In no particular order of import; here are just a few of the material facts which trouble me about this ‘Ted-Cruz’-mother’s-U.S.-birth-certificate-presentation’ and have aided my analysis that this is part of a broader well-orchestrated dog-and-pony show. (I am sure I will write additional columns on this issue, as time (and paid employment) allow.)
PROBLEM #1: Under the U.S. Code, any mock-ups like this coming not from the U.S. Senator, or from “Mr.” Cruz, but out of the Cruz for President campaign only constitute paid political advertising. Further, these materials must be identifiable to the viewer as sponsored by the campaign.
(I have written extensively about the difference between legally cognizable identification documentation, and a paid political advertising campaign. See, for example, DE-CODER RINGS (1 of 2) and WHY PRESIDENT OBAMA WAITED until APRIL 27, 2011 to RELEASE a FACSIMILE of his LONG FORM BIRTH CERTIFICATE.)
PROBLEM #2: This 2016 exclusive presentation on Breitbart marks the first time an image of the birth certificate of Cruz’ mother has become available for public display, notwithstanding as explained above; since he was born in Canada 1) her birth certificate is required to establish whether he is a U.S. citizen; and 2) questions as to his U.S. citizenship have dogged him since at least as far back as 2013. But even with the crescendo of eligibility speculation beginning at least as far back as then; as we said, the only evidence he produced to establish his U.S. citizenship was his birth certificate. And that was it for the next three years. Then, in February 2015, with his run for the Presidency all but guaranteed; The Dallas Morning News reported that rumors of ineligibility resurfaced. Now, with the stakes for establishing his eligibility raised considerably; you might think a smart lawyer like Cruz would produce his mother’s U.S. birth certificate as evidence he was legit. Well, you would be wrong. Because all he coughed up that same birth certificate for baby boy Cruz he had offered up to the same newspaper three years earlier! Id.
PROBLEM #3: Under both the U.S. Code and recent holdings of the U.S. Supreme Court protecting false political speech; unless intended for an unlawful purpose like defrauding the government; pretending to a media outlet that a facsimile of an ‘identification document’ like the image of a birth certificate (or of a form of renunciation of Canadian citizenship) is real, does not violate the law, precisely because as a matter of law, it identifies nothing. Think about it this way. Let’s say, you are applying for a civilian job and, in order to verify your educational background, your prospective employer asks you to provide an “official” school transcript. You wouldn’t go to your school; have them copy your records and hand them over to you; and then deliver these to the employer. No; that’s not “official.” Because you could have tampered with the information in your possession and under your control. Rather, you would likely ask your school, in writing, to mail these records to that employer, on your behalf. (You might also satisfy the request to provide an official transcript by having the record holder place the documents into an envelope and ‘sealing’ the flap with embossing, which you can then hand to the company.)
How might ‘inquiring minds’ similarly obtain official identification documentation with respect to Cruz’ U.S. citizenship status? Well, they might try obtaining the relevant information from Canadian officials. Indeed, the The Dallas Morning News said they tried to obtain such ‘official’ verification of Cruz’ U.S. citizenship status way back in August 2013, in the same report in which they posted the image Cruz provided, of his Canadian birth certificate with his mother’s birthplace filled in as U.S.A.
Officials at Citizenship and Immigration Canada said that without a signed privacy waiver from Cruz, they cannot discuss his case. Id.
And, today, three years later, Breitbart News echoed the Dallas News’ frustration at being unable to access Cruz’ identifying information:
Canadian immigration authorities could not provide Breitbart News with additional documents, citing Canadian privacy laws. Id.
So, for three years and counting; why hasn’t Cruz provided either of these media outlets with the necessary waiver authorization so that they could directly obtain his official identification documentation?
PROBLEM #4: Despite the fact spelled out in PROBLEM #1 that this maternal ‘birth certificate’ displayed on Breitbart has no legal bearing on Cruz’ U.S. citizenship status inasmuch as it was issued by his Presidential campaign; the timing of the campaign’s release is nonetheless way off. Coincidentally, Presidential Candidate Carly Fiorina hinted just the other day she found a ‘timing’ dilemma in another aspect of Cruz’ citizenship brouhaha, which tends to bolster my present ‘Breitbart timing’ observation.
Interviewed on January 7, 2016 by FOX’s Greta Van Susteren, Ms. Fiorina was asked to comment on what Susteren characterized as Cruz’ eligibility dispute, begun by Trump and joined publicly just that day by Sen. McCain, who agreed there was some legitimacy to the issue because Cruz was born in Alberta, Canada “to an American mother and a Cuban father.” She asked where Fiorina stood on this “discussion.” Fiorina replied, “Well, I don’t know all the particulars but I would say this. I find it odd that Senator Ted Cruz did not renounce his dual Canadian citizenship until 2014, when it became clear he was running for President.” Van Susteren asked, “Meaning what, meaning that he wanted to be a Canadian until 2014, is that what that means?” The candidate clarified, “I don’t know; I think you oughta ask him.” http://gretawire.foxnewsinsider.com/video/video-fiorina-questions-why-ted-cruz-took-so-long-to-renounce-his-dual-canadian-citizenship/
I have a theory on the answer to Ms. Fiorina’s question.
Here is the full title of the article by Professor Lubett, published by Salon in September 2013, including the sub-heading I omitted above, followed by the ‘money’ excerpt from that article: (all emphasis added by jbjd)
Ted Cruz’s origins continue to haunt him
What’s really keeping Ted Cruz from finally renouncing his Canadian citizenship? An expert investigates
What is keeping Ted Cruz from finally renouncing his Canadian citizenship?
Perhaps Cruz simply hasn’t gotten around to it. In fairness, the Canadian government requires more than a simple shout-out before canceling somebody’s citizenship. The aspiring ex-Canadian has to pay a fee of $100 and submit an official “Application to Renounce Canadian Citizenship,” which could be a bother for someone with a busy schedule of Tea Party meetings and lectures for the Heritage Foundation. On the other hand, the renunciation form is pretty simple. There are only 12 questions on the application, and most of them request basic information such as name, address and date of birth, all of which could be handled by a staffer.
There is one section, however, that could cause Cruz some trouble, and perhaps that is the reason for his delay. Question 5 instructs the applicant to “attach proof” that he is (or will become) a citizen of a country other than Canada. That may seem like it is none of Canada’s business, but in fact the requirement follows from important principles of international law – including the International Covenant on Civil and Political Rights – which call upon governments to protect individuals from becoming stateless. Of course, Canada’s requirement of proof was not established with U.S. senators in mind, but it does reflect an admirable intention to ensure that all individuals have national rights in at least one country. And in any event, it is up to Canada to decide how and in what manner its citizenship may be annulled – the U.S. has similar rules – and Cruz has no choice but to follow the necessary protocol.
Recall that the The Dallas Morning News reported in August 2013; problems were surfacing related to Cruz’ dual citizenship. Id.
The circumstances of Cruz’s birth have fueled a simmering debate over his eligibility to run for president. Knowingly or not, dual citizenship is an apparent if inconvenient truth for the tea party firebrand, who shows every sign he’s angling for the White House….Two visits in recent weeks to Iowa, the first state to winnow the field of presidential candidates, set off a fresh flurry of commentary on the issue. He heads to New Hampshire, another early voting state, on Friday — another strong sign that he’s eyeing a 2016 run.
The Morning News article went on to say that Cruz announced he would resolve the problem immediately by having his team of lawyers research how to “renounce” his Canadian citizenship. Id. And, inasmuch as Professor Lubett’s article in Salon pointed out, renouncing his Canadian citizenship required proving he had citizenship elsewhere, presumably in the U.S.; he would have to establish at this point, his mother was an American citizen. In short, he would need to produce his mother’s birth certificate before officials in Canada could process his Canadian citizenship renunciation. (Lubett also pointed out; Cruz could have used a U.S. passport, which is issued by the State Dept., to prove he is a citizen of the U.S. However, in order to obtain a U.S. passport, one must present evidence of being a U.S. citizen. And, inasmuch as Cruz’ birth certificate evidences he was born in Canada; he could not prove to our State Dept. he had inherited U.S. citizenship through his mother, without producing her birth certificate, anyway.)
The Dallas Morning News reported nine months later. in May 2014, that the process to terminate Cruz’ Canadian citizenship had been finalized; they posted the copy Cruz gave them of what he said was the official letter. (Actually, it wasn’t a letter at all but a form captioned, “Certificate of Renunciation of Canadian Citizenship.” Id.)
This means, the birth certificate for Cruz’ mother was in his possession at the latest, before the date on that letter-cum-Certification of Renunciation.
In sum; before Cruz could obtain the Canada letter-cum-Certification of Renunciation he provided to The Dallas Morning News in May 2014, he must have had possession of his mother’s birth certificate, and it must have shown, she was a citizen of the U.S.A.
So, here’s the problem associated with the relationship between the timing Ms. Fiorina pointed to in her interview with Greta, of Cruz’ alleged renunciation of Canadian citizenship in [May] 2014; and his campaign’s distribution to Breitbart the mock-up of his mother’s birth certificate two years later, in January 2016. Questions as to his status as a U.S. citizen centered on more than his dual-citizenship. This meant that just renouncing his Canadian citizenship in May 2014 only solved some of those pending Constitutional eligibility problems. The other questions related to his eligibility status centered mostly on whether he was born a U.S. citizen, which determination you now know could have been all but resolved as soon as he produced the birth certificate for his mother. And, based on the date that appears on the Canada letter-cum-Certification of Renunciation provided to The Dallas Morning News; we know he held that document by May 2014.
Then, why hasn’t he made that birth certificate available to The Dallas Morning News, or Breitbart, or any other media outlet, between May 2014 and now?
PROBLEM #5: The AP reported in August 2013 that Ted Cruz said he got his U.S. passport when he was in high school.
IMPORTANT UPDATE 01.10.15
Today, RCP posted an interview by CNN’s Jake Tapper, on Ted Cruz’ campaign bus. Tapper asked Carly’s question about the timing of Cruz’ renunciation. Let me explain how that has opened up the proverbial can of worms.
The important exchange is 01:10-3:20.
So, what’s so bad about that? I’ll tell you.
Ted Cruz is a smart and politically ambitious man. Here’s the Cruz bio that appears on the Congressional site: graduated Princeton University, B.A., 1992; graduated Harvard University, J.D., 1995; Law Clerk to Chief Justice of the United States William Rehnquist; Associate Deputy Attorney General, U.S. Department of Justice; Director of the Office of Policy Planning, Federal Trade Commission; Solicitor General of Texas 2003-2008; lawyer; elected to U.S. Senate 2012. http://bioguide.congress.gov/scripts/biodisplay.pl?index=C001098 And as I pointed out earlier; The Dallas Morning News raised Cruz’ dual citizenship status during the 2013 Iowa State Fair, where the R Presidential nominee wannabes, including Ted Cruz and Donald Trump, had ‘launched’ their campaigns.
There is no way in hell that this man hadn’t fully researched his U.S. citizenship pedigree long before August 13, when The Dallas Morning News pointed out to him, he was likely still a Canadian. Id.
But I noticed something else that stinks about this eligibility play.
On January 7, Heidi Cruz – she’s Managing Director at Goldman Sachs – was interviewed on Boston Herald Radio. Here’s what she said about the eligibility issue (10:00-11:10):
Ted is indisputably a U.S. citizen. He is a natural-born citizen. … He fits that definition without a question.
(Note in that segment, Heidi did not say, Ted is a U.S. citizen ‘because his mother is a citizen.’ However, she does mention maternity in reminding the host that Mitt Romney’s father George – he ran for the R Presidential nomination against Nixon in ’68 – was also a citizen, “born in Mexico, but to a mother who was a U.S. citizen.”)
Now, watch her husband’s January 7 responses to questions about eligibility from Mark Halperin of Bloomberg Politics. (I cannot embed this; but watch from 00:50-02:00):
The very first Congress, in defining a natural born citizen said, the child of a U.S. citizen is a natural born citizen.
(Note that just as soon as Cruz ended that sentence he was off on another tangent, no pause, no breath. He did not interject, ‘therefore, I am a natural born citizen because my mother is a U.S. citizen’ (or leave any room for Halperin to ask that next logical question.)
And, in today’s video, with Jake Tapper; Cruz began by repeating the party line about his U.S. citizenship, sort of:
The Constitution and federal law are clear. The child of a U.S. citizen born abroad is a natural born citizen.
However, Tapper kept on the subject as the exchange continued, asking whether his parents ever voted in Canada, clearly referencing the fact, voting records indicate she was on such a list, meaning, she would have had Canadian citizenship at the time. Cruz answered:
My mother didn’t, because she was a U.S. citizen, and my mother, look, the internet has all sorts of fevered swamp theories…
So, for the first time during any of these interviews, he now claims, “my mother was a U.S. citizen,” apparently in order to quell Tapper’s voting list reference. But notice, he begins another revelation, “and my mother…” and then stops himself, quickly pivoting to something else. But Tapper keeps going until he brought up Carly’s question. Now, listen to what Cruz said right after that:
Look, my mom was born in Wilmington, DE, was an American citizen by birth, she’s been an American citizen all 81 years of her life…
Question: What happened between January 7, when Mr. & Mrs. Cruz would only answer questions from the press as to the candidate’s eligibility, with vague generalities about the law; and January 10, when the candidate specifically alleged, ‘My mother was born in Delaware, USA’?
Answer: Breitbart posted the campaign’s mock-up of Cruz’ mother’s birth certificate on January 8 and Jake Tapper asked why Carly Fiorina thought it ‘odd” that he renunciated his Canadian citizenship in 2014.
As I said, Carly Fiorina hit a home run by positing that question…
My mind is a terrible thing to waste.