Former President Donald J. Trump Should File a Declaratory Judgment Action and Not a Quo Warranto Action

 

Former President Donald J. Trump Should File a Declaratory Judgment Action and Not a Quo Warranto Action

By Mario Apuzzo, Esq.

January 26, 2021

Fifth Amendment's Due Process Clause

Regarding former President Donald J. Trump’s impeachment, Leo Donofrio, Esq. has adopted many of the suggestions that I have outlined in my two articles, “President Trump Must Immediately File A Declaratory Judgment Action to Vindicate Himself and Put an End to the Election Controversy and New Impeachment” (Jan. 11, 2021)  and “President Trump Needs to Make His Impeachment Defense First In Court Before Making It In the Senate” (Jan. 17, 2021).  See Donofrio’s article, “Trump Must Bring Quo Warranto Action as Complete Defense to Impeachment” (Jan. 23, 2021). Where I part company with Donofrio is in his reliance on quo warranto as a legal avenue for Trump to follow for defending himself in the upcoming Senate impeachment trial and for ousting President Joe Biden and Vice President Kamala Harris from office.

Donofrio wants Trump to bring a quo warranto action under 16 D.C.Code §§ 3501-3548 in the Federal District Court for the District of Columbia as a means to defend himself against the impeachment and to remove Biden and Harris from the offices they currently occupy. Donofrio maintains that quo warranto is the exclusive remedy available to accomplish that.  He maintains that the D.C. District Court is the only court in the United States where such an action may be brought. I will now demonstrate that Trump following Donofrio’s advice and putting all his eggs in the quo warranto basket would be a grave mistake.

At common law, a private person had no right to bring a quo warranto action. Under the common law, only the United States could bring a quo warranto action. Wallace v. Anderson, 18 U.S. 5 Wheat. 291, 292 (1820). Congress can, however, pass a statute allowing a private person to bring such an action. Johnson v. Manhattan Railway Co., 289 U.S. 479 (1933). Congress has done so, and the D.C. statute is the only statute passed by Congress that permits such a procedure. Blackburn v. O’Brien, 289 F.Supp. 289 (D.C.W.D.Va. 1968). A quo warranto action is a direct attack on an officeholder, questioning his or her qualifications to hold an office and therefore his or her warrant and authority to occupy that office. Donofrio fails to recognize the many problems that exist with the quo warranto procedure that he advocates. The D.C. District Code presents not only a cumbersome procedure that has to be followed, but its very text shows that it is not applicable to a sitting president and vice president.  Additionally, even if it could be successfully argued that it is so applicable, it would be unconstitutional.

Neither the U.S. Attorney General nor the U.S. Attorney will help Trump

Under § 16-3502, only the Attorney General of the United States or the United States Attorney for the District of Columbia can initiate a proceeding for issuance of a writ of quo warranto “on his own motion or on the relation of a third person.” “[A] quo warranto action against a public official may be brought only by the Attorney General or the U.S. Attorney.” Taitz v. Obama,707 F. Supp. 2d 1, 3 (D.D.C. 2010) (citing Andrade v. Lauer, 729 F.2d 1475, 1498 (D.C. Cir. 1984)).  If the writ is brought on behalf of a third person, it may only issue by leave of the District Court for the District of Columbia.  D.C. Code § 16-3502.  “If the Attorney General or United States attorney refuses to institute a quo warranto proceeding on the request of a person interested, the interested person may apply to the court by certified petition for leave to have the writ issued.”  § 16-3503. 

Hence, the quo warranto procedure starts by requiring that the quo warranto writ issue in the name of the United States. It compels a concerned citizen to apply to the Attorney General or the United States Attorney to bring the action on his behalf in the District Court for the District of Columbia (16 D.C. Code §§ 3501-3502). These officials have broad discretion. It is not realistic that they would file a quo warranto action in the name of the United States against a sitting president, their own boss and the same person who appointed them. It is also unrealistic that they would file such an action in a case in which among the list of defendants may be the House of Representatives, Senate, and the whole Congress.  Even appointing a special prosecutor would present a problem, for who would appoint him or her? We have already seen how the Executive and Congressional branches of government are both defending Biden’s stance that he has been constitutionally elected president.  The Justice Department has dismissed out of hand any challenge to the Biden election. How does Donofrio expect to get any cooperation from either of these two branches of government which he would need to sanction and support his quo warranto action?

The court would probably not give its permission for Trump to have the quo warranto writ issued 

The D.C. statute provides a private litigant with a mechanism by which he or she can still bring a quo warranto action even if the government refuses to do so. If these government officials refuse to institute a quo warranto proceeding, only an “interested person” may petition the court for leave to have the writ issued in the name of the United States on the relation of the “interested person.” § 3503. The court has broad discretion to deny the writ. Under the standard for being an “interested person” as pronounced by Newman v. United States ex rel. Frizzell, 238 U.S. 537 (1915), in a case involving a public office one would have to have “an interest in the office itself peculiar to himself” and be filing an action against another who allegedly usurped that office. Indeed, Newman requires that the plaintiff be “actually and personally interested” in the office and that there be another person against whom the action is brought who has unlawfully occupied the office in question. In other words, the plaintiff must himself make a claim to the office to qualify to bring the action. Even if the quo warranto plaintiff could show that he was an “interested person,” which Trump would have no problem showing, the court still has to grant him its permission to bring the quo warranto action.

Neither the president nor vice president is an officer of the United States

The court would most likely rule that the statute does not apply to removing a sitting president or vice president because they are not “Officers of the United States” under the statute. § 3503 provides that for who are the persons against whom the quo warranto writ may issue. It states that the writ can issue “against a person who within the District of Columbia usurps, intrudes into, or unlawfully holds or exercises, a franchise conferred by the United States or a public office of the United States, civil or military.”  The impeachment clause of the Constitution does not consider the offices of president and vice president as offices of the United States. Article II, Section 4 provides:  “The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” Note that the sentence does not say “all other” civil Officers of the United States.  For example, members of Congress are not civil officers subject to impeachment and removal.  See “Impeachable Offenses: Early Historical Practice (1789–1860).” Notwithstanding the Fourteenth Amendment, Section 3 which does separately list “Senator or Representative in Congress” apart from “any office, civil or military,” but does not separately list the president or vice president, the president would also not be found to be a civil officer subject to the quo warranto statute. Congress in passing the D.C. statute did provide private litigants with a statutory mechanism for bringing quo warranto actions in the D.C. District Court, but it did not intend for it to apply to ousting sitting presidents. Under the Appointments Clause (Article II, Sec. 2, cl. 2), it is the president that is given the power to make, with the advice and consent of the Senate, appointments of “Officers of the United States” and other positions that are not considered inferior. Given the president’s power to fill these offices and the impeachment mechanism existing in the Constitution, it is doubtful that Congress meant to include the Office of the President itself, which appoints those officers, when it wrote “public office of the United States” in § 16-3501.

The court would not rule that Biden and Harris have usurped their offices

Under § 3501, the plaintiff must prove that the person holding the contested office “usurps, intrudes into, or unlawfully holds or exercises, a franchise conferred by the United States or a public office of the United States, civil or military.”  Can we reasonably expect the D.C. District Court to give its permission to a plaintiff to bring an action against Biden and Harris who Congress just recently confirmed as the president and vice president of the United States on January 6, 2021 and who were  sworn into their offices on January 20, 2021, for the purpose of asking the court to issue a ruling that they have usurped their offices? On the contrary, the court can use that process to hold that the issue of Biden’s and Harris’s election has already been constitutionally decided by Congress, is moot, and therefore deny the application for the writ as a matter of law. Congress’s final determination followed by both Biden and Harris being sworn into their offices is binding upon a court. It does not appear that the Constitution provides any way to undo any of that.         

A quo warranto action does not extend to the issue of whether Trump’s speech legally caused the Capitol invasion

The quo warranto action would only extend to the question of whether Biden and Harris lawfully occupy their officers (which as I have stated is now moot in the eyes of a court).  It would, however, not extend to the question of whether Trump's speech on January 6, 2021, is a legal cause of the illegal entry into the Capitol. This is a critical issue that Trump has to pursue.  If Trump’s speech did not legally cause the invasion of the Capitol, then there is no legal basis to the Article of Impeachment. 

For all these textual, procedural, and substantive reasons, a quo warranto action would not help Trump in any way. 

The quo warranto statute would be unconstitutional if it could be applied to a sitting president or vice president

But there is a more serious problem with what Donofrio proposes and that is one of constitutional dimensions. Donofrio claims that Congress has delegated its powers to remove a sitting president to the D.C, District Court by passing the D.C. District Code statute. As written and only interpreting it as though the Office of the President or Vice President are not included in its sweep, the D.C. statute would pass constitutional muster. On the other hand, if the D.C. statute were to be read as Donofrio does, to be used as a tool to oust from office a sitting president or vice president, then such an application of the statute would be unconstitutional.

It is highly doubtful that Congress, a co-equal branch of government to the Executive, has the constitutional power to pass a statute that would allow a federal district court to alone directly remove a sitting president or vice president. See Marbury v. Madison, 1 Cranch, 137 (1803) (shows that Congress in enacting laws must do so within the confines of power given to it in the Constitution and held that Congress had no power to give the Supreme Court original jurisdiction in cases not described in the Constitution). Surely, if Congress cannot give the Supreme Court power which the Constitution does not give to that Court, Congress also cannot give to a federal district court any power not belonging to it under the Constitution.

§ 3504 provides that the court remedy of a quo warranto action includes a judgment that “he be ousted and excluded” from the illegally occupied office.  But the Constitution itself textually provides how to remove a sitting president and vice president and Congress has no constitutional authority to legislate a different way to do it. See Article I, Section 8 which prescribes the legislative powers given to Congress. The Constitution itself does not give Congress any authority to create by legislation any such quo warranto actions that may be used to oust a sitting president or vice president, let alone any authority to delegate that removal power to the judicial branch of government. It is also doubtful that Congress would attempt such a delegation of power given that the Constitution itself provides for a mechanism to remove a president or vice president for misconduct or prevent a person from becoming or continuing as vice president who is not Article II qualified. The Constitution at Article I, Sec. 2 and 3 and Article II, Section 4 gives Congress the power to impeach the president or vice president which only applies to a duly elected and confirmed president or vice president who is convicted of “Treason, Bribery, or other high Crimes and Misdemeanors.” As we can see, impeachment would only apply to a duly elected president or vice president who has committed a serious offense. The Constitution cannot be amended by an act of Congress.  See Article V (provides the procedure for amending the Constitution). 

The quo warranto remedy of removal from the office of president and vice president that Donofrio seeks is beyond the power of the federal courts to grant and would violate the political question doctrine and separation of powers, for Congress has finally spoken on the matter and Biden and Harris have already been sworn into office.   

Finally, Donofrio cites the case of Drake v. Obama, 664 F.3d 774 (9^th Cir. 2011) in support of his position.  But that case does not help him.  The central issue there was where a quo warranto action based on the D.C. Code must be filed.  The federal district court had dismissed the quo warranto claim because plaintiffs had filed it in the wrong venue (California).  The 9^th Circuit Court of Appeals affirmed.  Id. at 786.  The Court held that a quo warranto action based on the D.C. Code can only be filed in the District of Columbia.  Id. at 785.  There was no issue before the Court whether the statute applies to a sitting president or vice president.  It did not give any opinion on whether a quo warranto action under the D.C. Code applied to a sitting president or vice president. 

The declaratory judgment action that I propose is the only way that Trump should go

A declaratory judgment action that I propose gives Trump the best fighting chance he has to defend himself in the Senate impeachment trial. A declaratory judgment action under 28 U.S.C. §2201 and F.R.C.P. 57 does not suffer from the procedural and constitutional infirmities of a quo warranto action that I have outlined above. Trump has standing to bring the action against the House, Senate, and the whole Congress.[1]   First, Trump will be personally harmed from the impeachment and he presents a real live controversy with respect to that impeachment. He will be able to show that it is Congress’s impeachment that is causing him his harm.  He would also be able to show that the court can give him the remedy he seeks which is a declaration of his rights and obligations respecting whether he spoke the truth about the irregularities of the elections in the contested states and whether his speech regarding those elections legally caused the Capital invasion.  Second, he also has competitive standing against Congress, Biden, and Harris which continues beyond the 2020 election.  See Owen v. Mulligan, 640 F.2d 1130, 1133 & n.8 (9^th Cir. 1981) (citing Schiaffo v. Helstoski, 492 F.2d413, 417 (3d Cir. 1974) (holding that a rival candidate had standing to challenge an incumbent’s activities seeking to secure an unfair advantage in future elections)). Trump has stated publicly that there is a likelihood that he will run for president again in 2024.  In fact, the Democrats and some Republicans want to impeach Trump so that he can no longer run for president. Given that Trump is no longer in office, personally harming Trump politically in the future is one of the main reasons why Congress, with the tacit support of Biden and Harris, is pursuing its impeachment of Trump.  In his declaratory judgment action, Trump can challenge and seek to enjoin the activities of the House and Senate, designed to impeach and convict him and intended to produce an unfair advantage in favor of his primary and/or general election rivals in the next presidential election. Hence, for these two reasons, Trump would present a justiciable controversy in his declaratory judgment action. 

In his declaratory judgment action, Trump would be seeking a declaration from the court as to his rights and obligations with respect to (1) his statements that the elections in the six or seven contested states were not conducted according to the Constitution and state and federal law and (2) whether his speech on January 6, 2021 is a legal cause of the violent entry into the Capitol. An impeachment trial in the Senate does not afford Trump the same due process rights he would enjoy in a court and satisfy his need to pursue those issues. As we witnessed in Trump’s first impeachment, there is no real legal standard as to what a high crime or misdemeanor is.  The interpretation and application of those words are rife with political bias existing in any given moment of history. For example, then-House Minority Leader Gerald R. Ford in 1970 defined the words thus: "The only honest answer is that an impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history; conviction results from whatever offense or offenses two-thirds of the other body considers to be sufficiently serious to require removal of the accused from office.  Again, the historical context and political climate is important."  Gerald Ford's Remarks of April 15, 1970 on the Impeachment of Supreme Court Justice William Douglas Archived April 12, 2019, at the Wayback Machine. Retrieved January 17, 2021. Hence, Trump needs to develop and prove as much factual information as he can in a hopefully dispassionate court of law before a jury free of passion, prejudice, and sympathy prior to the Senate trial in order to meet that political challenge there.   

Trump would not have in the Senate the same discovery and subpoena powers that he would have if he first filed the declaratory judgment action in federal district court.  A court of law has more power and will to sanction discovery violators than would a politically charged Senate. The rules of evidence apply in a court but not in the Senate.  Neither a civil nor criminal court would allow as we saw in the House of Representative a witness to offer that President Trump is the “white-supremacist-in-chief,” clearly irrelevant and inflammatory, as evidence of liability or guilt with respect to the Capitol invasion. 

Furthermore, just showing that Trump spoke the truth about the election irregularities is not sufficient.  Trump must also demonstrate that he did not cause the Capitol violence and invasion.  The issue of causation (is Trump’s speech a legal cause of the violent invasion of the Capitol) can better be presented and argued in a court of law, which is highly experienced with the complexity of the causation issue. Consider how the politically charged members of the House of Representatives during the impeachment trial basically ignored the fundamental issue of causation.  Like in the House of Representatives, we cannot expect a similarly politically charged Senate to give to the causation issue the importance that the law demands it deserves. In the Senate, like we saw in the House of Representatives, Trump would probably be subjected to that body’s political judgment however tainted and be made a victim of our current political and social “cancel” culture rather than given the benefit of any legal judgment. Simply stated, Trump cannot expect to receive due process of law in the Senate that he would receive in a court of law.         

Corporate interests have significantly cut President Trump’s ability to communicate with the American people and the world.  They are therefore interfering with his political speech and ability to defend himself and the nation.  With a lawsuit in court, President Trump can fully defend himself by taking action to show that he did not commit any wrong.  There, he would also have the right to have a jury of the people decide the facts based on admissible testimony, exhibits, and stipulations rather than the politically motivated Senate acting as a jury.  Finally, he would also be able to appeal to the Circuit Court of Appeals and have a path to the U.S. Supreme Court, if necessary. There is no appeal from an impeachment trial by the Senate. Even if he were to file an appeal to a court of a Senate conviction, that court would most likely rule that it has no jurisdiction because an impeachment presents a political question and is therefore a nonjusticiable issue. See  https://www.lawfareblog.com/supreme-court-has-no-role-impeachment .  

In the declaratory judgment action, he would be able to present all his evidence of the illegal elections in the contested states.  He already has much of the information he needs right in the Texas lawsuit, other legal actions, and evidence which he was never given an opportunity to present in court.  With such evidence, he could prove that his claims of election irregularity were legitimate.  Trump would then utilize those factual findings in his later Senate impeachment trial. After developing his evidence and factual record in court, he can then stand fully prepared to challenge his impeachment trial in the Senate and show there that he did not commit any “high Crime[]” or “Misdemeanor[]” and that the impeachment has no factual foundation.  Trump also needs to apply for a temporary injunction of the Senate trial, requesting that the trial be stayed pending completion of his declaratory judgment action. Hence, such an action in the federal district court would provide Trump with greater due process rights which he will not enjoy in the politically biased Senate where political rhetoric and ambition rather than facts will reign.

Depending on what evidence Trump could bring to his declaratory judgment action and what he could prove there regarding the irregularities of the elections in the contested states, that information can be given to Congress. The question then is what Congress could do with the information. The approach that the president “is unable to discharge the powers and duties of his office” under Section 3 of the Twenty-Fifth Amendment is not practical since the Vice President is needed to start the process and then a majority of a Biden cabinet would have to support the effort. The only other avenue that I see is in Section 1 of the Twenty-Fifth Amendment which includes the possibility that a president can resign from office. Textually the section does not include a vice president, but I cannot imagine Congress not being allowed to ask a vice president to resign followed by such a resignation. Depending on what Trump would prove in his declaratory judgment action regarding the contested elections, that information can be given to Congress which could in turn request that Biden and Harris resign.

I have demonstrated that Trump should file a declaratory judgment action and not a quo warranto action. The declaratory judgment action will provide him with the due process rights outlined above which are fundamental to our justice system and which he needs to exercise to prove the facts he alleges about the elections in the contested states and that his speech did not legally cause the Capitol illegal entry.  He must bring his case to a court of law first before he brings his defense to the Senate.  Legal action in a court is the only way that he can hopefully receive the due process and justice to which he is entitled. Hopefully, he will do so, for it will provide him with the factual evidence that he needs to defend himself in the Senate impeachment trial.    

Mario Apuzzo, Esq.
January 26, 2021
http://puzo1.blogspot.com

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Copyright © 2021
Mario Apuzzo, Esq.
All Rights Reserved     

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[1] Trump and Pence had competitive standing to personally sue Biden, Harris, and the contested states which does not mean making a motion to intervene in an ongoing suit like Trump did in the Texas litigation.  They had to bring their own personal action against those defendants before Biden and Harris were sworn into office on January 20, 2021.  They could have sued them based on the election irregularities in the contested states and on Harris not being an Article II “natural born citizen.” Despite my writing to them and their legal team that they take such action, for some unknown reason they chose not to.