Fact Check

FALSE: Elena Kagan Tied to Obama's Birth Certificate

WND falsely claimed Obama nominated Elena Kagan for the Supreme Court as a reward for getting 9 eligibility challenges about his birth certificate dismissed.

Published Aug. 5, 2010


Claim:   President Obama nominated Elena Kagan for the U.S. Supreme Court as a reward for her help in getting nine challenges to his eligibility dismissed.


Example:   [Collected via e-mail, August 2010]

Well, someone figured out why Obama nominated Elana Kagan for the
Supreme Court. Pull up the Supreme Courts website, go to the docket
and search for Obama. She was the Solicitor General for all the suits
against him filed with the Supreme Court to show proof of natural born

He owes her big time. All of the requests were denied of course.
They were never heard. It just keeps getting deeper and deeper, doesn't it?

The American people mean nothing any longer. It's all about payback
time for those that compromised themselves to elect someone that
really has no true right to even be there. We should be getting so
sick of all of this nonsense. The USA has finally become the laughing
stock of the world. GOD help and deliver us.


Variations:   An e-mailed screed claiming that this
article is wrong is itself wrong.

Origins:   Rumors that Elena Kagan was nominated for a position on the U.S. Supreme Court by President Barack Obama as a tit-for-tat payment of Kagan's assistance in using her position as U.S. Solicitor General to fend off lawsuits challenging Obama's eligibility for the presidency began circulating in August 2010, prompted by a 4 August 2010 online article published by
WorldNetDaily (WND). That article claimed that Kagan "has actually been playing a role for
some time in the dispute over whether Obama is legally qualified to be in the White House" and that a "simple search of the high court's own website reveals Kagan's name coming up at least nine times on dockets involving Obama eligibility issues," then went on to suggest that all nine of the referenced docket items

were dismissed due to Kagan's influence, an action for which President Obama "owes her big time" and has rewarded her with a quid pro quo Supreme Court

One small problem for the advocates of this political conspiracy theory: None of the nine docket items cited by WND was about "whether Obama is legally qualified to be in the White House." The WND article simply cites the results of a non-specific search on all Supreme Court docket items containing the names "Obama" and "Kagan" and misleadingly claims them all as "involving Obama eligibility issues," without regard for the real underlying issues of those cases.*

Each of the docket items included the name of the lower court from which it was appealed, as well as a case number. Using those pieces of information as reference points for looking up the subject of each of the cited docket items (as WND utterly failed to do) revealed that NONE of the nine entries cited by WND had anything at all to do with cases challenging Barack Obama's eligibility to hold the office of President of the United States; in fact, most of them actually stemmed from cases which were originally filed against the federal government long before the presidential candidacy of Barack Obama (but which since "rolled over" to the current administration).

The nine entries cited by WND comprised cases filed by:

  • Gary William Holt, a federal prisoner in Tennessee who was convicted of firearms-related offenses and whose case is a prisoner civil rights issue filed during the Bush administration.
  • Jerome Julius Brown, whose case not only long antedates the Obama administration, but is also largely incomprehensible and has nothing do to with eligibility issues. The case was originally dismissed by a lower court that could not discern either "which claims are made against which defendants on what basis" nor what "relief [the] plaintiff demands," and a description of the case provides some idea of why the lower court found it unworthy of consideration:

    This matter is before the Court on the Complaint filed by Plaintiff Jerome Julius Brown ("Brown"), who refers to himself as "U.S. Bounty # 1014, U.S.A., Mr. Jerome Julius Brown Sr. et al." On June 7, 2010, Brown filed a one-page Complaint accompanied by 167 pages of attachments. The one-page Complaint is incomprehensible. It consists of several disjointed sentence fragments that do not make sense. It refers to a "petition for writ and attachments," an appeal from a magistrate judge, the United States Marshals Service, "assessment & taxation no real property data land condemnation business check card" and demands $70,000.00. The attachments include copies of his Maryland Driver's License, a business check card apparently issued to him by Chevy Chase Bank, and a Federal Express account card. Other attachments demonstrate that he has filed other lawsuits against Chevy Chase Bank, and that he has filed other lawsuits against other various persons and entities. Also included among the attachments are copies of various checks drawn on what appears to be a business account for "Zip One Mail Contractor Courier" and "Jerome Julius Brown," an "ID Theft Affidavit" that refers to the Federal Bureau of Investigation, a credit report for Brown that includes handwritten notes regarding purported fraud and identity theft, and what appears to be a copy of a home equity loan application.

  • Louis Lutz, a truck driver who was employed as a U.S. Army civilian contractor in Iraq between 2004 to 2006 (long before the advent of the Obama administration) and whose case has to do with the combatant status of civilian contractors and employees working in Iraq and Afghanistan, not presidential eligibility issues.
  • Two filings involving Abdul Hamid Abdul Salam Al-Ghizzawi, a Libyan citizen seeking release from his incarceration at Guantanamo Bay Naval Station. (Al-Ghizzawi was finally released in March 2010, after seven years of imprisonment.)
  • Three filings involving Jamal Kiyemba, a Ugandan who was incarcerated at Guantanamo Bay Naval Station for four years beginning in 2002. (Although Kiyemba was released from Guantanamo in 2006, due to "some procedural detail of the American legal system, Jamal Kiyemba’s name remains in the headlines of the highly public legal battle that began as Kiyemba v. Bush and which sits now on the desks of the nine justices of the Supreme Court of the United States under its new name: Kiyemba v. Obama." The case is a separation-of-powers issue that has nothing to do with presidential eligibility.)
  • The Real Truth About Obama, Inc., a case which, although the plaintiff's name might suggest a presidential eligibility issue, is actually a challenge to three Federal Election Commission regulations which the plaintiff organization alleges are "unconstitutionally overbroad" and thereby infringed their right "to disseminate information about presidential candidate Senator Obama's position on abortion."

After we published our article on this topic, WND hurriedly scrubbed the original article from their site without explanation, then misleadingly replaced it three days later with a thoroughly rewritten article on a different topic which was prefaced by an Editor's Note acknowledging their error:

Editor's Note: An earlier version of this story incorrectly described a series of cases for which Elena Kagan represented the government as eligibility cases. Those cases, in fact, were a series of unrelated disputes pending before the Supreme Court and the references have been removed from this report.

Many people unfamiliar with the function of the Solictor General's office have claimed that even if the referenced docket items are not cases involving eligibility issues, they somehow demonstrate a questionable or inappropriate connection between Barack Obama and Elena Kagan, as if the latter personally represented the former in court and was rewarded for her efforts with a Supreme Court nomination. This claim is also false

One of the duties of the Solicitor General is, in layman's terms, to act as advocate for the United States before the Supreme Court
in any lawsuits filed against the federal government over abridgements of constitutional rights; thus the current Solicitor General's name will appear on virtually every Supreme Court docket item entered during his or her tenure. (Indeed, a simple search of docket items for the name "Elena Kagan" turns up over 500 matching entries.) Because such lawsuits often name the President of the United States as a respondent, it is also not uncommon for the current president's name to appear on such docket items (even if he was not yet in office at the time the underlying cases were originally filed in lower courts). In all such cases, however, the Solicitor General functions as a representative of the interests of the federal government, not as personal counsel for the President. (Several dozen Supreme Court docket items still identify Barack Obama's predecessor, George W. Bush, as a respondent, and in every one of those cases the Solicitor General is likewise listed as an attorney for the respondent.)

*NOTE: Immediately after we published this piece, WND scrubbed all references to the original article from their web site without explanation. Three days later, WND misleadingly replaced the original with a thoroughly rewritten article on a completely different topic.

Last updated:   3 August 2015

David Mikkelson founded the site now known as snopes.com back in 1994.

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