Donate

Tuesday, January 26, 2021

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 (9th 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 9th 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 (9th 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

####

Copyright © 2021
Mario Apuzzo, Esq.
All Rights Reserved     



[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.  

 


39 comments:

Stranger said...

"their legal team that they take such action, for some unknown reason they chose not to."

Unfortunately, there can be no good reason for not having responded to your notice to them. It just goes into the big hopper of all of the many things that Trump could have done and should have done but did not do to everyone's puzzlement. It was as if he, along with Barr, was not going to hold anyone accountable. Which is exactly how it has turned out to the great irritation of tens of millions of patriots. No judgement. No draining of the swamp. No holding anyone accountable. We needed a warrior but he proved to be anything but that when it came to bringing judgement to the elite aristocracy of America.

DrJim77 said...

OK, say Trump has a jury trial and succeeds in a declaratory judgement being made. Then what?

Does anyone have the power to remove the then proven usurper in the White House? Perhaps it allows Trump to be able to run again and continue his movement but I fear with what the Dems and the Uni-Party have in store for us, fair and honest elections will no longer exist in the USA by the time the next election comes.

I feel we have crossed a very substantial line in the sand. Mario, is there any legal path forward to deem the 2020 election null and void or reversed?

ajtelles said...

Hi Mario,

The phrase "time is of the essence" applies in a business contract and in an honest court, so, if the Senate can't muster 11 Republican votes to get to 61 votes to "convict" an innocent former President, then "time" is not relevant now it seems to me. Right?

As you wrote in the last sentence of the fourth paragraph from the end, "Simply stated, Trump cannot expect to receive due process of law in the Senate that he would receive in a court of law".

True. And, not only is quo warranto action very iffy even with enough time, it also seems that declaratory judgment action in a court of law is now moot "if the Senate can't muster 11 Republican votes to get to 61 votes to "convict" an innocent former President".

However, here's a legal question.

Should President Trump continue to press a defamation case against the political "insurgents", Democratic and Republican, who, by their political silence, encouraged the insurgency foot soldiers of the marxist revolution who called for defunding and curtailing the authority of the police, the first step in marxist insurgency movements in the past?

L. Lin Wood, a 40 year experienced defamation defense lawyer, is available.

Art
http://originalbirtherdocument.blogspot.com

Mario Apuzzo, Esq. said...

Art,

67 Senators are needed to convict Trump, not 61.

Mootness is judged in the present, not in the future. The present need to defend oneself is not moot if being found not guilty depends on the jury not convicting in the future.

Usborne Story Tamers said...

Can Trump issue a declaratory judgment on Kamala for her ineligibility to the second highest office

She’s not a natural born citizen and the Ct should define that term

Mario Apuzzo, Esq. said...

1 of 2

Trump does not issue the declaratory judgment. It is a court that does that. For the court to issue a declaratory judgment on Harris, he would have to name her a party to his lawsuit and then prevail in the action. At this stage (post-Congress confirmation on January 6 and her swearing-in on January 20), Trump would have no grounds to ask a court to issue a declaratory judgment against Harris for her not being eligible to be vice president, i.e., for not being an Article II natural born citizen. Her eligibility at this time is moot in the legal sense. That does not mean that her eligibility will always stay moot. Second, Trump would have to show that her ineligibility caused him personal harm and that a court could give him a remedy with respect to his harm. That would be very difficult to accomplish at this time.

Having said all that I do want to reiterate that Vice President Harris is not eligible to be vice president, for she is not an Article II natural born citizen. Harris was born in California in 1964 to Donald J. Harris and Gopalan Shyamala. Both of Harris’ parents at the time of her birth in 1964 were foreign citizens and not citizens of the U.S. Her father was a citizen of Jamaica and her mother a citizen of India. They were in the U.S. on a temporary basis and on student visas to study at American Universities. Harris, while born in the U.S., was therefore not born to two U.S. citizen parents.

The definition of an Article II "natural born citizen" of the United States is a child born in the United States to parents who were both either “natural born citizens” or “citizens” of the United States at the time of the child's birth. See Emer de Vattel, The Law of Nations, Section 212 (1758) (1797) ("The citizens are the members of the civil society: bound to this society by certain duties, and subject to its authority, they equally participate in its advantages. The natives, or natural-born citizens, are those born in the country, of parents who are citizens."). Vattel’s law of nations definition of a natural born citizen was incorporated into American common law with which the Framers were familiar when they drafted the Constitution. See Minor v. Happersett, 88 U.S. 162, 167 (1875) (“At common-law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners.

Continued . . .

Mario Apuzzo, Esq. said...

2 of 2

Kamala Harris is arguably a "born" citizen of the United States by positive law, i.e., under an expanded interpretation of the Fourteenth Amendment, because she was born in the United States while subject to its jurisdiction. See U.S. v. Wong Kim Ark, 169 U.S. 649, 705 (1898) (decided a “single question” under the Fourteenth Amendment and held that a child born in the United States to alien parents who were subjects of a foreign nation but who were domiciled and permanent residents and not part of an invading army or working in a foreign diplomatic capacity was born “subject to the jurisdiction” of the United States and therefore a “citizen” of the United States from the moment of birth by virtue of the Fourteenth Amendment. It did not reach the question of whether children born in the U.S. to alien parents temporarily present in the United States, i.e., subjects or citizens of a foreign nation and neither domiciled nor permanently residing in the U.S., are “citizens” of the United States under the Fourteenth Amendment, let alone whether they are Article II “natural born citizens”). But she is no Article II "natural born citizen” of the United States by nature alone as defined by American common law, for while she was born in the United States (born in a country), she was not born to U.S. citizen parents (not born to members of that country). She is neither a “natural born Citizen,” nor a “Citizen of the United States, at the time of the Adoption of this Constitution.” She is therefore not eligible to be President or Vice President. See U.S. Constitution, Article II, Section 1, Clause 5; U.S. Constitution, Twelfth Amendment.

ajtelles said...

Hi Mario,

Open palm to the forehead -- "I know better" -- 67 Senators are needed to convict, not 61. The Senate needs 17 Republican votes. With 5 Republican snakes, the Senate is 12 snakes short.

As to "Mootness is judged in the present, not in the future".

True. My understanding is that when the Senate does not convict, the issue is at that point "now" moot.

Of course, as you wrote, "The present need to defend oneself is not moot if being found not guilty depends on the jury not convicting in the future".

As to defamation, is a defamation suit possible?

As a former public “official” and now a private “citizen”, does DJTrump have standing to go to court against those, in public office and the media, who are purposely and repeatedly lying about him tacitly urging an "insurrection" at the Capitol as Speaker Pelosi has said, and who are actively trying to defame his character and reputation by saying that he is lying about his intentions in his January6, 2021 speech?

Should DJT hire L. Lin Wood to be his defamation lawyer? I mention Lin Wood because he is well known as a pro-Trump lawyer, and because he is available now since Nicholas Sandman removed him from his legal team and, according to the Washington Times, filed the notice in each of the 6 defamation law suits submitted against the media companies.

Mario, you may not want to say pro or con about Lin Wood or any lawyer by name, but should a defamation lawyer be hired? We're curious.

Art

Charles Hughes said...

Is a native citizen the same as a natural born citizen?

Mario Apuzzo, Esq. said...

You asked whether a “native citizen” is the same as a “natural born citizen.”

Native citizen is not a word of art. Neither the Constitution nor any Act of Congress contains the term native citizen. The clause has taken on a life of its own from the beginning of our nation and it has different meanings depending on the context in which it is used.

Vattel states at Section 212: “The natives, or natural-born citizens, are those born in the country, of parents who are citizens." Hence, if by “native citizen” you mean “native[]” in the Vattelian sense, then yes, a native citizen is the same as a natural born citizen. But if by “native citizen” you mean a person born in the U.S. and subject to its jurisdiction (born in the U.S. to one or two qualifying alien parents) which makes him or her only a “citizen” of the United States from the moment of birth under the Fourteenth Amendment but not also a natural born citizen under Vattel’s Section 212 (born in the U.S. to two U.S. citizen parents), then no, a native citizen is not the same as a natural born citizen.

At common law all natural born citizens are ipso facto also native citizens under the Fourteenth Amendment, but not all native citizens under the Fourteenth Amendment are natural born citizens. Stated more simply and without any doubt, all natural born citizens are citizens, but not all citizens are natural born citizens. See Minor v. Happersett, 88 U.S. 162, 167 (1875).

By the union of jus soli and jus sanguinis at the moment of birth, natural born citizens are born with unity of natural allegiance to and citizenship in the U.S. Lacking the union of jus sanguinis and jus soli at birth, persons who are not natural born citizens but who are citizens of the U.S. at birth under the Fourteenth Amendment are born with allegiance to the U.S. and to one or two foreign nations. Being born with conflicting allegiances disqualifies them from being natural born citizens.

Charles Hughes said...

Justice Wait wrote “These were natives, or natural-born citizens, as distinguished from aliens or foreigners.“ He seems to also be saying that natives = natural-born.

Were the Founders than native citizens and natural-citizens?

Charles Hughes said...

In November, 1788, Thomas Jefferson wrote a letter to John Jay suggesting that US Consuls be “Native citizens.” He wrote, “Native citizens, on several valuable accounts, are preferable to Aliens, and to citizens alien-born.” And “it appears to me adviseable to declare, by a standing law, that no person but a native citizen shall be capable of the office of Consul.”

Note Jefferson breaks the categories of individuals into native citizens, aliens and “citizens alien-born.”

Obviously, Jefferson is not advocating for 12 year old children to be named US Consuls. His understanding must be that native citizens were born in the 13 colonies before July 4th, 1776. Before July 4th, they were all native subjects of Great Britain and after July 4th, there would have been two classes of natives, those who remained native subjects to Great Britain and those who became native citizens of the United States.

If the native subjects became the native citizens, did the natural-born subjects become the natural-born citizens? (Remembering that Vattel equates native and natural-born).

BTW, in his letter to Jay, Jefferson specifically mentions John Bondfeild (a misspelling of Bondfield) of Bordeaux. Jefferson calls Bondfield a “native citizen”. Prior to July 4th, 1776, Bondfield lived in Quebec. He supported the American Revolution and helped the American troops in the invasion of Quebec. In 1777 he moved to Bordeaux, France.

Jefferson’s letter to Jay;

https://founders.archives.gov/documents/Jefferson/01-14-02-0054

John Bondfield’s letter to Jefferson:

https://founders.archives.gov/documents/Jefferson/01-17-02-0203

Mario Apuzzo, Esq. said...

You said:

Justice Wait [sic] wrote “These were natives, or natural-born citizens, as distinguished from aliens or foreigners.“ He seems to also be saying that natives = natural-born.”

Yes, you are correct. Justice Waite paraphrased Vattel’s definition: “The natives, or natural-born citizens, are those born in the country, of parents who are citizens,” which was translated into English in 1797 from the French: “Les naturels, ou indigenes, sont ceux qui sont nes dans le pays, de parents citoyens.”

You asked:

“Were the Founders than [sic] native citizens and natural-citizens?”

Most of the Founders were born in the British colonies to British parents. Hence, they were “natural-born subjects” of the King of Great Britain.

With the Declaration of Independence of 1776, the Founders and all others living in the colonies, regardless of place of birth and provided they adhered to the American Revolution, became citizens of their respective states. Of those citizens, all those born in the colonies were native citizens and all others were citizens but alien born
With the ratification of the Articles of Confederation and Perpetual Union in 1781, the Founders and other citizens continued to be citizens of their respective states.

With the ratification of the Constitution in 1787, the Founders and other citizens became “citizens of the United States.”

The first children born in the United States to the citizens of the United States became the first “natural born citizens.”

Thereafter, children born in the United States of those parents who were citizens of the United States were also natural born citizens and so on.

As early as 1790, Congress added to the “citizens of the United States” through naturalization statutes and later also through treaties. Under those laws, persons born out of the United States could become at birth (by statutes) or after birth (by statutes or treaties) “citizens of the United States” through naturalization at birth or after birth.
The Fourteenth Amendment in 1868 further added to the “citizens of the United States” by allowing persons born in the United States to qualifying alien parents to be “citizens of the United States” from the moment of birth. Congress confirmed their status by statute and called them “citizens of the United States” “at birth.” Children born in the United States to this latter group of added citizens of the United States became themselves, like the descendants of the Founders, natural born citizens and without any doubt also “citizens of the United States.”

Regarding Thomas Jefferson’s letter to John Jay of November 14, 1788, Jefferson uses three classes of persons, “native citizens,” “aliens,” and “citizens alien-born.” He did not use the clause “natural born citizen” which he could easily have done given that the Framers used the clause in the Constitution only in 1787. Jefferson, therefore, distinguished a native citizen from a natural born citizen. Native citizen was more inclusive, for it included persons who were born in the colonies and who became citizens through the Revolution and natural born citizens who were born in a state to citizen parents. Jefferson did not want to limit consular posts to only natural born citizen so he used the term “native citizen” which would allow the founding generation born in the colonies to British parents to also occupy those positions.

Contrary to your theory, the development of U.S. citizenship, including the Jefferson letter, demonstrates that a natural born citizen does not have its origins in an English natural-born subject. Rather, it has its origins in natural law, the use of the clause “natural born citizen” in historical literature, and the law of nations, as confirmed not by English common law but rather by American common law.

ajtelles said...

Hi Mario,

I like the way you add depth and substance, and this response is an excellent example.

Dittos to your post and to what both Vattel wrote which you quoted and to what Minor v. Happersett Chief Justice Wait wrote which Charles Hughes quoted.

"Native citizen is not a word of art.
"Neither the Constitution nor any Act of Congress contains the term native citizen.
"The clause ... has different meanings depending on the context in which it is used.

"Vattel states at Section 212:
“The natives, or natural-born citizens,
"are those born in the country, of parents who are citizens."

Chief Justice Waite in Minor v. Happerset:
“These were natives, or natural-born citizens,
"as distinguished from aliens or foreigners“.

Charles concludes with "He seems to also be saying that natives = natural-born".

Dittos to “=”. The two "or" words in Waite’s comment mean ONLY ”=” – “same as” – NOT “different from”.

That means that putative Vice President Kamala Harris is not a “natural born Citizen” by birth alone, the “original intent” of founder and New York ratifier John Jay when he underlined the ”original genesis” word “born” in “natural born Citizen” in his July 25, 1787 note to George Washington, and which was adopted in the new Constitution on September 17, 1787.

Mario, that is so clear.

However, in 2021, do the erudite “constitutional scholars” in America care what the 1787 words “natural born” and “Citizen” meant in 1787 to John Jay, George Washington, and previously to Emer de Vattel, and in 1875 to Chief Justice Morrison Waite?

Art
http://originalbirtherdocument.blogspot.com

Charles Hughes said...

Mario wrote: “He did not use the clause “natural born citizen” which he could easily have done given that the Framers used the clause in the Constitution only in 1787. Jefferson, therefore, distinguished a native citizen from a natural born citizen.

This is speculation on your part. If like Vattel, Jefferson considered natives and natural born to be the same things, he could have used either term to convey the same idea. Just as future Supreme Court Justice, James Iredell said that the Constitution required the President to be a native (“No man but a native, and who has resided fourteen years in America, can be chosen President.” in North Carolina debates over ratification of the Constitution). Iredell must have equated native with natural born.

During the Constitutional Convention when it was suggested that only natives be eligible to be senators, future Supreme Court Justice James Wilson complained that as he was not a native (born in 1742 in Scotland, came to America about 1766), he would be shutout from serving in the government he was helping to form.

You said back in 2009, “During the founding, "natural born Citizen" meant the same thing as "native born citizen.”

Historical tidbits: in a letter to his commanders in 1777, General Washington requested they create a special guard unit for his protection. He specifically requested, “You will therefore send me none but Natives, & Men of some property, if You have them—I must insist that in making this Choice You give no Intimation of my preferance of Natives, as I do not want to create any invidious Distinction between them & the Foreigners.

Mario wrote, “Native citizen was more inclusive, for it included persons who were born in the colonies and who became citizens through the Revolution and natural born citizens who were born in a state to citizen parents.

We seem to agree that it is clear the Founders/Framers did not have the same definition of “natives” as Vattel.

North Carolina Debates:

https://docsouth.unc.edu/nc/conv1788/conv1788.html

Washington letter to commanders:

https://founders.archives.gov/documents/Washington/03-09-02-0301

Mario Apuzzo blog:

http://puzo1.blogspot.com/2009/01/difference-between-natural-and-native.html?m=0

Wilson debate over senate being natives:

https://avalon.law.yale.edu/18th_century/debates_809.asp

Mario Apuzzo, Esq. said...

1 of 3

Charles Hughes:

You said:

Mario wrote: “He did not use the clause “natural born citizen” which he could easily have done given that the Framers used the clause in the Constitution only in 1787. Jefferson, therefore, distinguished a native citizen from a natural born citizen. This is speculation on your part.

Response:

We are all speculating what the Framers meant by “natives,” “native citizens,” and “natural born citizen.” The difference between us is in how much evidence we can provide to support our positions and in the end, who has the more convincing argument.

You said:

If like Vattel, Jefferson considered natives and natural born to be the same things, he could have used either term to convey the same idea.

Response:

Which terms Jefferson would have selected depended on what message he intended to convey. Jefferson in recommending those consular positions could not have used “native citizens” or “natural-born citizen” in the sense that Vattel used those terms when Vattel said: “The natives, or natural-born citizens, are those born in the country, of parents who are citizens." The people that Jefferson proposed be named to the consular positions were not born in the United States to U.S. citizen parents. At best, their children would have met that definition.

You said:

Just as future Supreme Court Justice, James Iredell said that the Constitution required the President to be a native (“No man but a native, and who has resided fourteen years in America, can be chosen President.” in North Carolina debates over ratification of the Constitution). Iredell must have equated native with natural born.

Response:

That is correct, for Vattel did exactly that. In fact, the Constitution itself provides, in addition to requiring a president to be at least 35 years old, that the president be a “natural born citizen” and have resided a minimum of 14 years in the United States. Hence, Iredell, knowing the eligibility requirements of Article II, Section 1, Clause 5, simply used “native” in the place of “natural born citizen” given that Vattel defined the words the same.

You said:

During the Constitutional Convention when it was suggested that only natives be eligible to be senators, future Supreme Court Justice James Wilson complained that as he was not a native (born in 1742 in Scotland, came to America about 1766), he would be shutout from serving in the government he was helping to form.

Response:

That is correct, for Wilson was not born in the colonies, but rather in Scotland. Hence, he was what Jefferson called a “citizen[] alien-born.”

Continued . . .

Mario Apuzzo, Esq. said...

2 of 3

You said:

You said back in 2009, “During the founding, "natural born Citizen" meant the same thing as "native born citizen.””

Response:

Yes, provided that “native born citizen” was used to mean a “native” as Vattel defined the word in Section 212. Note that Jefferson naming who should be named to consular positions does not make one mention of a “native born citizen” and he could not have, for no one available to fill those positions was a natural born citizen. I also explained in my article that “natural born citizen” is a term of art. Blackstone in his Commentaries said that terms of art "must be taken according to the acceptation of the learned in each art, trade, and science."

I also said in my article that in later years the expression “native born citizen” took on a different meaning, one that meant that the person was born in the U.S., with no reference to the citizenship of the parents. The term was so used to distinguish a born citizen (acquired U.S. citizenship from the moment of birth by being born in the U.S.) from a naturalized citizen, i.e., those who acquired U.S. citizenship through a naturalization Act of Congress “at birth” (were born out of the U.S. to one or two U.S. citizen parents) or after birth (were born out of the U.S. to two alien parents). Since only presidents and vice-presidents are required to be natural born citizens, there was no need for Americans to be so precise when referring to U.S. citizens.

You said:

“[I]n a letter to his commanders in 1777, General Washington requested they create a special guard unit for his protection. He specifically requested, ‘You will therefore send me none but Natives, & Men of some property, if You have them—I must insist that in making this Choice You give no Intimation of my preferance of Natives, as I do not want to create any invidious Distinction between them & the Foreigners.

Response:

Here too, Washington is using “Natives” the same way that Jefferson used “Native citizens.” Again, those soldiers would not have been born in the U.S. to U.S. citizen parents, so he could not have been referring to Vattel’s “natives, or natural-born citizens.”

Continued . . .

Mario Apuzzo, Esq. said...

3 of 3

You said:

Mario wrote, “Native citizen was more inclusive, for it included persons who were born in the colonies and who became citizens through the Revolution and natural born citizens who were born in a state to citizen parents.“
We seem to agree that it is clear the Founders/Framers did not have the same definition of “natives” as Vattel.

Response:

First, the unanimous U.S. Supreme Court in Minor v. Happersett (1875) disagrees with you. There the Court said: “At common-law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners.” As you see, the Court equated “natives” with “natural-born citizen” exactly how Vattel did in Section 212 of The Law of Nations and the Court defined such “nomenclature” as “all children born in a country of parents who were its citizens.” Clearly, the Court neither relied upon nor referred to Blackstone’s definitions of “natives” or “natural-born subjects.” Furthermore, neither the Founders/Framers nor the U.S. Supreme Court ever used the clause “natural born citizen” in any way that contradicts how Vattel defined the clause in Section 212. See Minor and United States v. Wong Kim Ark (1898) (show that the Framers defined the clause the same as Vattel did).

Second, that there are instances in which the Framers used “native” or “native citizen” to mean something other than how Vattel defined the “natives” does not prove that the Framers defined a natural born citizen differently than how Vattel defined one. Again, see Minor quoted above. As I have demonstrated, that is so for the simple reason that we must look to the context of each time a Founder or Framer used the word “native” or “native citizen” to determine what he meant by the term. From the underlying circumstances, we must examine whether he used the word in a more inclusive sense (like Jefferson, Washington, and Wilson did) because such use satisfied his current need or only in the sense of how Vattel defined the term (like Iredell probably did) which after the Constitution was ratified applied only to determining presidential eligibility.

I do not think you have proven anything by trying to show how the Founders and Framers defined a “native” or “native citizen.” Article II uses “natural born citizen,” not native or native citizen. Even if analyzing the Founders’/Framers’ meaning of natives provides the natural born citizen smoking gun and if there are any doubts about how the Founders and Framers used “natives” or “native citizens” which doubts you contend favor your position, those doubts are removed by the Framers choosing the word of art “natural born citizen” in Article II, for that choice avoided any ambiguity presented by the word “native” or “native citizen.” Again, Minor also instructs how the Framers defined both “natives, or natural-born citizens” which is exactly how Vattel did, i.e., all children born in a country of parents who were its citizens.

ajtelles said...

Hi Mario,

Dittos to the last five words in the last sentence in the last paragraph in section 3, "...parents who were its citizens" (January 30, 2021 at 6:50 PM).

A "natural born Citizen" is a child born to "...parents [plural] who were its citizens" BEFORE the children were born on the soil of which the parents were citizens. If Vattel had intended only one parent (as some people suggest that “native” and “native citizen” imply) on either the soil of the parents or on soil foreign to the parents, he most definitely would have so stated.

Not only did John Jay agree with Vattel about married parents with the same citizenship, and birth of children on the soil of the married parents, Jay agreed that union by marriage of the singular citizenship parents AND the soil of their citizenship devolved ONLY singular citizenship on their child.

What is the alternative? Well, dual citizenship, of course.

However, Jay was not schizophrenic, vague, confused, and neither was (1758) (1797) Emer de Vattel or (1875) Minor V. Happersett Supreme Court Chief Justice Morrison Waite. ONLY singular citizenship was implied in Vattel’s use of “natives “or” natural born citizens” and in Waite’s use of “...natives, “or” natural-born citizens” in conjunction with “aliens “or” foreigners”.

Mario, with respectful reference to your interlocutor, when, where, who is the erudite constitutional scholar who will engage you? Maybe you should write that book that I’ve asked you about twice before if you are going to write a book.

Put your Natural Born Citizen blog into a book with an ISBN designation and you will most definitely stir up a hornets nest of “erudite constitutional scholars” who think that, for example, that my Texas federal Senator Ted Cruz was a 1790 Naturalization Act “natural born citizen” and so was eligible to be president and should have been elected instead of President Trump. You know to whom I’m referring since he’s still on national radio for 3 hours 5 days a week at 6 PM. And I really like the guy as a fellow patriot, but he is simply wrong about Ted Cruz being a “natural born Citizen” and eligible to be president.

Art
http://originalbirtherdocument.blogspot.com

Mario Apuzzo, Esq. said...

In 2 of 3, I said

Yes, provided that “native born citizen” was used to mean a “native” as Vattel defined the word in Section 212. Note that Jefferson naming who should be named to consular positions does not make one mention of a “native born citizen” and he could not have, for no one available to fill those positions was a natural born citizen. I also explained in my article that “natural born citizen” is a term of art. Blackstone in his Commentaries said that terms of art "must be taken according to the acceptation of the learned in each art, trade, and science."

It should say:

Yes, provided that “native born citizen” was used to mean a “native” as Vattel defined the word in Section 212. Note that Jefferson listing who should be named to consular positions does not make one mention of a “natural born citizen” and he could not have, for no one available to fill those positions was a natural born citizen. I also explained in my article that “natural born citizen” is a term of art. Blackstone in his Commentaries said that terms of art "must be taken according to the acceptation of the learned in each art, trade, and science."

Mario Apuzzo, Esq. said...

CNN, in an article entitled, “First on CNN: Five of Trump's impeachment defense attorneys leave team less than two weeks before trial, reports that five attorneys have left Trump’s impeachment defense team." https://www.cnn.com/2021/01/30/politics/butch-bowers-deborah-barbier-trump-impeachment-team/index.html. The article states, among other things:

A person familiar with the departures told CNN that Trump wanted the attorneys to argue there was mass election fraud and that the election was stolen from him rather than focus on the legality of convicting a president after he's left office. Trump was not receptive to the discussions about how they should proceed in that regard.

It is good to see Trump stand up for what makes perfect and simple sense. In my opinion, it would be a grave error for his defense team to focus Trump’s entire defense on the issue of whether the impeachment itself is constitutional. First, granting for sake of argument that the Senate even had any role in deciding that jurisdictional issue, that issue has already been decided. There is no more jurisdiction in the Senate to continue arguing that issue, for the Senate’s job now is to decide the merits, i.e., convict or acquit on the evidence. Additionally, there are plenty of good arguments on both sides of this issue. The Trump side focuses on limiting the meaning of the words of the Constitution’s impeachment clause. They argue that the noun “The President” no longer applies once “The President” is no longer in office. They add that if Congress could impeach and try Trump after he has left office then it could impeach and try private citizens. But the House impeached Trump while he was president for his alleged conduct that occurred while he was president and now the Senate must try him on that conduct, although now that he is a private citizen. Hence, Congress is not impeaching and trying just a private citizen. Those who support impeaching and trying Trump also present textual (the need for disqualification from office in the future) and many other sound policy arguments on why the impeachment clause should not be read so narrowly. Notwithstanding that 45 Republican Senators voted to dismiss the impeachment trial (causing many to speculate that only 5 Republicans will vote with the Democrat Senators rather than the 17 needed), in the end, I believe that due to political pressure the Republican Senators when voting on the merits will not be wed to how they voted on the procedural motion to dismiss. And that is the risk that Trump faces in taking his case to the Senate rather than to the court.

With no dismissal, Trump would be totally out of luck if that were his only defense. Hence, Trump is correct that he needs to show that his position on the election in the contested states was not a “big lie” and that his speech before and after January 6, 2021 was not the legal cause of the invasion of the Capitol. Again, I have written three articles in which I explain why Trump should present his evidence on these issues in a declaratory judgment action filed against the House, Senate, and whole Congress in federal district court before making his defense in the Senate. Only a federal court will protect his due process rights, not a politically charged and driven Senate. Only time will tell how he will proceed and then it will all be history.

Mario Apuzzo, Esq. said...

Art,

Here is a short comment on whether Senator Ted Cruz is a natural born citizen.

Rafael Edward Cruz (“Ted Cruz”), was born on December 22, 1970 at the Foothills Medical Centre, Calgary, Canada, to a Cuban citizen father and U.S. citizen mother.

When Thomas Jefferson wrote his letter of November 14, 1778 to John Jay, there was no law (statutory or common law) that provided that Cruz, born in Canada to a Cuban father and U.S. mother, was a “native, or natural-born citizen” as Vattel defined those words. Hence, in Jefferson’s eyes Cruz would have been an “alien.”

The First Congress passed the nation’s first naturalization act in 1790. Thereunder, if Cruz’s father would have naturalized after Cruz’s birth and during his minority and if dwelling in the United States, Cruz would have become a “citizen” of the United States after his birth. Hence, at that point, Jefferson would have called him a “citizen[] alien-born.” If Cruz’s father did not naturalize during Cruz’s minority, Cruz would have had to file his own naturalization petition upon reaching the age of majority and have it approved. Under that scenario, he still would have been a “citizen[] alien-born.”

It was not until May 24, 1934, that someone born under Cruz’s birth circumstances was accepted by the nation as a “citizen” of the United States “at birth” (not to be confused and confounded with an Article II “natural born citizen”). Prior to that time, Congress's naturalization Acts did not permit a child born out of the U.S. to a U.S. citizen mother and an alien father to acquire U.S. citizenship at birth. Starting on that date, children born out of the U.S. to U.S. citizen mothers and alien fathers, satisfying all conditions precedent and subsequent, were adopted under the naturalization Acts of Congress as “citizens” of the United States at birth and have remained so.

Cruz relies upon section 301(a)(7) of the Immigration and Naturalization Act of 1952 as support that he is a natural born citizen. First, that statute did not nor could it amend Article II, Section 1, Clause 5 (the natural born citizen clause). Second, that statute plainly says in its text that persons who meet its requirements are “citizens” of the United States. It does not say that they are “natural born citizens” of the United States.

Cruz only in 2014 renounced his Canadian citizenship with which he was born and which according to those who argue that he is a natural born citizen would also have made him a natural born citizen of Canada.

Finally, you got to love this one: "Natural Born Citizenship Clause. The clause of the U.S. Constitution barring persons not born in the United States from the presidency." Black's Law Dictionary, Eighth edition (1999).

All this and much more leads to the inescapable conclusion that Senator Ted Cruz is not an Article II natural born citizen.

Mario Apuzzo, Esq. said...

It's hilarious to see the pompous oaf Reality Check posting comments on Twitter about my writings here. He has no courage to post them here because he knows that as I have always done, I will knock his snotty arrogance down several notches.

ajtelles said...

Hi Mario,

Dittos to these two sentences in your post on January 31, 2021 at 12:31 AM.

Paragraph 1, sentence 1. "It is good to see Trump stand up for what makes perfect and simple sense".

Paragraph 4, sentence 2. "Hence, Trump is correct that he needs to show that his position on the election in the contested states was not a “big lie” and that his speech before and after January 6, 2021 was not the legal cause of the invasion of the Capitol".

After I heard that President Trump had let 2 and then 5 of his defense lawyer go by mutual agreement for the reason that you stated in the post, I thought to myself that it seems that he is back in "gut feeling" mode, which is a very good sign. As he said in rally speeches, he didn't need to pay big bucks to pollsters to find out what he should think and say to appeal to voters, white, black, hispanic, etc. As it turned out, he spoke what he thought in his heart and the people responded “magafically”. Psalms 51:10 applies, “Create in me a clean heart O God, and renew a right spirit within me”. He spoke what he thought from his heart.

So, it looks like President Trump may be going for the big K.O. of the political Democratic and Republican "insurgents" who DON'T CARE about truth and honor, and he’s going for a full faceted election fraud sword thrust and at the same time defending the people who heard him speak on January 6, 2021.

Art

Mario Apuzzo, Esq. said...

Former President Trump and all of his supporters should welcome a declaratory judgment action in federal court in which Trump could present all his evidence of election irregularities and demonstrate that he did not legally cause the Capitol invasion. In such a procedure, Trump would be free to argue the issues he wants, have full discovery and subpoena powers, present all his admissible evidence, and call whatever witness he desires. In the politically charged Senate, he will not have the same due process rights. In the federal court action, not only Trump but all his supporters would be vindicated.

Trump is being pressured both in the Senate and in various legal circles to keep out of the Senate trial the election issue. He is being told to pursue only the constitutional issue which if successful would avoid ever getting to the merits. By analogy, it would be like a court dismissing a case for lack of standing which allows it to avoid without a public trial deciding the merits of the matter. I wonder why Trump is being so pressured. Is it that Trump simply does not have the evidence of election irregularities or is it that presenting such evidence will be a great embarrassment to our nation and to so many of today's legal, political, and media institutions and personalities? Only time will tell us what is really going on.

ajtelles said...

Hi Mario,

Dittos. “Trump is being pressured both in the Senate and in various legal circles to keep out of the Senate trial the election issue”. The “election issue” is the LAW that the Democratic and Republican “political insurgents” do NOT want to talk about because they DON’T CARE what Article II Section 1 clause 2 says. They DON’T CARE what the law is because to them "the law disappeared" on November 3, 2020 and the disappearance was affirmed on January 6, 2021 and the day that the House impeached then President Trump with a warp speed impeachment scam.

That is the obvious example that the “insurgents” DON’T CARE about truth and honor. The “DON’T CARE” mob are the true “insurgents”, not former President Trump and the patriotic “maganificent” Trump supporters. So, that is why I throw the “insurgent” word back at Speaker of the House of Representatives Nancy Pelosi. She is the “insurgent in chief” of the “DON’T CARE” mob.

Dittos. "Only time will tell us what is really going on". And time will also tell us if "the law disappeared" (as marlene quoted on January 7, 2021 at 5:00 in the third paragraph "the law disappeared").

Art
http://originalbirtherdocument.blogspot.com

Mario Apuzzo, Esq. said...

Art,

Trump is a contractor. He does not just dream about the Constitution.

ajtelles said...

Mario, hi. Yes.

Dittos to "contractor". DJT contracts with others who will help him build something of value. In this case, to build a be good--be better--ah, "BE BEST" America than has ever existed before.

In a sense the U. S. Constitution is for "dreamers" who want an individualistic FREE America where free people are free to be unequal with hard work and free to accumulate private property, not a collectivist—socialist—communist America where people are forced to submit--to unite--to conform to a dictator-in-chief with excessive executive orders and very excessive executive actions in the first 12 days as a “Philip Dru, Administrator”, and with the oligarch comrades in control of commune America.

PS. if, Reality Check (see your comment on January 31, 2021 at 5:28 PM) and others who do not like the Philip Dru, Administrator appellation being applied to the President they believe is an honest man, they are either ignorant of history or they do know the history of America but the DON’T CARE about the U. S. Constitution.

Edward Mandell House, author © 1912. Download the pdf here.
https://www.voltairenet.org/IMG/pdf/House_Philip_Dru__Administrator.pdf

Art

Mario Apuzzo, Esq. said...

Another reason why Trump needs to file a declaratory judgment action in federal district court prior to his Senate trial is to take out of the hands of the Senate the two questions: (1) did Trump tell a “big lie” about the elections in the contested states, and (2) did Trump legally cause the invasion of the Capitol. If he prevails on those issues in court, the court judgment would be binding on the Senate. That means that the Senate would not have to decide those issues. That would free Republican Senators from having to vote on those issues, matters from which they may want to stay away given the current cancel culture climate. Hence, Trump’s successful court action would be a win for both Trump and the Republican Senators.

Mario Apuzzo, Esq. said...

It would be a grave error for Trump not to address during his Senate impeachment trial the issue of whether he told the American people a “big lie” regarding the election in the contested states. The Democrat Senators are going to make his Senate trial all about that, with the addition of inflammatory videos of the actual invasion which they will say resulted in the death of several people. That will be their “trial.” They are going to argue that Trump violated the “public trust” and damaged our international image and democracy and pressure the Republican Senators to vote to impeach on that issue alone. The question of whether Trump legally caused the invasion of the Capital will get lost in that rhetoric and emotionally charged videos. That is evident from how the Democrats keep blaming Trump for the Capital invasion even though there is evidence that has come out as documented by the FBI that rebellious forces planned the Capitol invasion days before Trump gave his speech on January 6, 2021.

That is why it will be a grave mistake for Trump’s legal team to just focus on the question of whether the impeachment is constitutional. If the Senate does not dismiss on that issue and Trump does not address the election issue, he will be fried.

In the Senate, the Democrat Senators are going to roll right over him with plenty of rhetoric on the election issue, with Trump not having had a chance to present his evidence of election irregularities. There even exists the chance that the Senate will not allow for any witnesses to testify during the impeachment trial, which to me sounds like a set up job designed to make Trump lose. How is Trump supposed to address the election issue without any witness testimony? As I have said in my previous articles on this blog, http://puzo1.blogspot.com/2021/01/former-president-donald-j-trump-should.html , Trump needs to file a declaratory judgment action in the federal district court before his Senate trial starts and ask for a stay of that trial (historically there are examples of Senate impeachment trials lasting for months). It is only there that he will be able to get due process of law, which includes full discovery, subpoena powers, and the ability to call witnesses, and to thereby get a fair trial on the issues of the election irregularities and whether he legally caused the Capitol invasion.

Mario Apuzzo, Esq. said...

The Democrats realize that by impeaching Trump, they have opened the election irregularities door. But they want it both ways, they want to impeach and convict Trump and at the same time they want him to shut his mouth about the integrity of the election. Now that takes a lot of gall. But why should the Republicans cower to such bullying?

There are many persons around Trump trying to convince him to take the Democrats’ advice and not mention the election irregularities issue in his Senate trial. We should ask ourselves why? I am glad to see that Trump’s lawyers, Bruce L. Castor, Jr. and David Schoen, at least included in their Answer to the Article of Impeachment filed today that Trump denies that his statements about the election irregularities were false. By alleging that “[i]nsufficient evidence exists upon which a reasonable jurist could conclude that the 45th President’s statements were accurate or not,” they deny that Trump’s statements about the election were false. Hence, Trump’s lawyers have challenged the Democrat Senators to produce the evidence that the election was not tainted and thereby have placed the burden of proof on the Senate to prove that Trump’s election statements were false. The problem with such a strategy is that as I learned in high school debate class, he who asserts must prove. It was Trump who said that the elections in the contested states are not valid. Hence, the burden is on him to show that he was correct.

Additionally, the trial is taking place in the Senate and not in a court of law. That means that the circus will be in the Senate, not in a court. The problem will be that the circus will not be for Trump’s entertainment, but rather for that of his political enemies. That also means that the Democrat Senators and those Republicans who will join them will do and say anything they want without any way to check them. They are emboldened because they have the mainstream media and some establishment elements behind them. They can do no wrong and are not accountable to anyone. They will pile the rhetoric on and in the end, say that they have shown that Trump’s statements about the election were false. They will all pat each other on the back in the mainstream media and no one will be able to stop them.

That is why I still insist that Trump must take his case to a federal district court in a declaratory judgment action before he goes forward with his trial in the Senate. There, with due process of law to protect him, Trump would be able to meaningfully address the issue of the election irregularities and whether he legally caused the Capitol invasion.

Mario Apuzzo, Esq. said...

CNN reports:

Hundreds of congressional staffers wrote an open letter to senators urging them to consider the trauma aides experienced during the deadly insurrection at the US Capitol and to convict former President Donald Trump "for our sake, and the sake of the country."

https://www.cnn.com/2021/02/03/politics/congressional-staffers-impeachment-letter/index.html

Just imagine hundreds of biased persons (the writers are mostly Democrats) writing letters to a jury in a court trial, telling them of the trauma they suffered and that they should convict the defendant.

The Senate trial just keeps on getting better. This is exactly why I keep saying that Trump needs to take his case to a court of law and not to the circus Senate.

ajtelles said...

Hi Mario,

This morning, February 3, 2021, in the first half hour on Steve Bannon’s War Room ( https://pandemic.warroom.org ) on America’s Voice News TV, Florida Representative Matt Gates said that since sitting members of the House can't represent President Trump in the Senate "trial", he would step down from his House seat to represent DJT if he was asked. He said that he never lost a case at trial, and representing DJT would not be his first loss.

Gates agreed with Steve Bannon that Senator Rand Paul's move which identified the 45 Republican Senators who would NOT vote to convict means that the "trial" is a farce going nowhere, so why not remove the two new lawyers who don't seem to have the larger view of how to appeal to the emotions of the people of America and NOT only the Senators at the “trial”. So they agreed, why not have Gates represent DJT in the "trial" for the history books by making an emotional appeal in the Senate to the greater audience, the people of America who voted who agree that election fraud should be on “trial”, not just an unconstitutional scheme by the “insurrectionist” Democrats and Republicans.

Here is Steve Bannon’s news site which looks like the Drudge site – https://bannonswarroom.com .

Art
http://originalbirtherdocument.blogspot.com

Mario Apuzzo, Esq. said...

Of course, some Republican Senators as much as the Democrat Senators do not want Trump to raise the issue of the election irregularities in this Senate impeachment trial. After all, they voted to certify the result of the election and they want to avoid embarrassment. The Republican Senators want Trump to just stay quiet and make the impeachment go away on procedural grounds without anyone ever knowing whether Trump had any basis for making his statements that the elections in the contested states were not conducted properly. The problem with that strategy is that the Democrats and some Republican Senators are coming after Trump with a full vengeance to convict him and to bar him from ever holding office again. Trump must make up his mind whether he is going to stick up for himself or sacrifice himself for the interest of Republican Senators which in the latter case does not provide him with any defense against his political enemies in the Senate.

Some Republican Senators in the Senate are willing to throw Trump under the bus which will occur if Trump does not address the election irregularities issue in the Senate. If Trump wins on the procedural issue (which I doubt he will), then these Republican Senators win because the election issue was avoided, but Trump was not able to address the merits and clear his name. If Trump loses on the procedural issue, then the trial goes forward with Trump not addressing the election issue. Without any real defense having been mounted, Trump can be convicted on his “false” claims about the election and for “causing” the “insurrection,” and barred from future office, all of which rids these Republican Senators of Trump. In both scenarios, these Republican Senators win but Trump loses.

Mario Apuzzo, Esq. said...

There is no democracy if there is no honesty in our elections. There are still many unanswered questions regarding the elections in the contested states, notwithstanding many court dismissals of election contest lawsuits that did not reach the merits of the challenges.

The Democrats have chosen to impeach Trump in connection with the 2020 presidential election. That opens the door for Trump to revisit the integrity of the elections in the contested states and introduce evidence to support his allegations that we did not have fair and honest presidential elections there. Hence, Trump now has an opportunity to continue the debate about election integrity on a grand national stage. By continuing to dispute the election in the contested states as part of his defense to the impeachment charge that he told a “big lie” about the election being stolen from him (his other defense is that he did not legally cause the Capitol invasion), Trump will not only effectively defend himself from the impeachment charge of inciting insurrection, but also our constitutional republic, the Constitution, and the rule of law.

ajtelles said...

Hi Mario,

Dittos to your first sentence in the first paragraph (February 4, 2021 at 9:55 AM):
"There is no democracy if there is no honesty in our elections".

Here is the quote from marlene (January 7, 2021 at 5:00 AM) in which she related some dialogue from a TV movie about how the decline of the law during the rise of Hitler and the nazis influenced a young lawyer.

This is the url – http://puzo1.blogspot.com/2020/12/it-is-sufficient-if-only-one-house-of.html

"1. The Rule of Law is being erased in our Land

"Several years ago, I saw a movie on TV. The setting was Berlin, Germany just after WWII at the time the Soviets were laying roles of barbed wire on the ground to mark the border between East and West Berlin.

"The main characters were a young American woman and a young German man.

"He had gotten a law degree while Hitler was taking over Germany; but he never practiced law.

"She asked him why and he said, “The Law disappeared”.

“And that’s what’s going on in our Country:

"The Law – as the standard which those in government must obey – has disappeared and is being replaced by the age-old system where those with the power do what they want, and the cowards go along with it".

Mario, in your last sentence you wrote:

“By continuing to dispute the election in the contested states as part of his defense to the impeachment charge that he told a “big lie” about the election being stolen from him (his other defense is that he did not legally cause the Capitol invasion), Trump will not only effectively defend himself from the impeachment charge of inciting insurrection, but also our constitutional republic, the Constitution, and the rule of law”.

In the first impeachment “trial” farce, the Schiff “big lie” of “evidence” prevailed until Special Counsel Muller, representing the “rule of law”, revealed that there was absolutely no “evidence”. Period.

In the Senate “trial” where the Schiff way of expressing the “big lie” of “evidence” will be used to confuse the honest citizens listening to the “trial”, will the Senators accept the “big truth” when it is expressed by the lawyers for Trump?

Well, we’re going to find out if the rule of law will prevail in the U. S. Senate, or we’re going to find out, again, that “the law disappeared” for the third time as it did twice before on November 3 and 4, 2020 and on January 6 and 7, 2021.

Art
http://originalbirtherdocument.blogspot.com

ajtelles said...

Hi Mario,

Correction for clarity...

Incorrect:
"In the first impeachment "trial" farce, the Schiff "big lie" of "evidence" prevailed until Special Counsel Muller..."

Correct:
In the first impeachment “trial” farce, the Schiff “big lie” of “evidence” prevailed until the U. S. Senate, representing the “rule of law” as expected, issued its "NOT guilty" verdict and revealed that there was absolutely no “evidence” (in agreement with Special Counsel Muller). Period.

That correction is more in line with the last two paragraphs in my original comment here on February 5, 2021 at 12:30 AM .

Art
http://originalbirtherdocument.blogspot.com

ajtelles said...

Hi Mario,

Dittos, again, to your first sentence in the first paragraph on this post (February 4, 2021 at 9:55 AM):
"There is no democracy if there is no honesty in our elections", and, because “the law disappeared”, when there is “no honesty” on the streets because the “law” has been instructed to “stand down” and let the foot soldiers pillage and terrorize.

From Revolver.news

The “Canceling” of New York Times Reporter Donald McNeil Proves White Liberals Are The Useful Idiots of “Woke Culture” – February 6, 2021

>> https://www.revolver.news/2021/02/the-canceling-of-new-york-times-reporter-donald-mcneil-proves-white-liberals-are-the-useful-idiots-of-woke-culture/

Here are 3 examples from current events in America of how “the law disappeared” when the “law” did nothing to stop what the author of the article calls the “modern left” and also “new left”, but really should be identified as Antifa (if you’re not a communist you’re a fascist – that’s whey they are antifascist) and Black Lives Matter (self-identified as “trained marxists”) footsoldiers of the marxist revolution when they were burning businesses, looting stores, destroying monuments and statues in 2020 and now in 2021.

Paragraph # 8

“Forgiveness is a wholly alien concept for the modern left. The new left believes in power, and ruthlessly exercising it against its chosen enemies.

“That’s why Kyle Rittenhouse faces life in prison for defending himself from Antifa attackers.

“That’s why a mob stormed onto the McCloskey’s lawn, yet it’s the McCloskeys who face time in prison for nonviolently protecting themselves.

“It’s why the left takes gleeful joy in destroying monuments and defacing graves, frenzied in the knowledge that they can destroy with impunity”.

Art

Mario Apuzzo, Esq. said...

“A simply terrible idea,” added Sen. Chris Coons (D-Del.). “He will perjure himself, so he’s the one at risk. But I cannot tell you how much I have enjoyed my first full Trump free week of the last five years.”

And he said this just before he is going to sit as a juror in former President Trump's impeachment trial in the Senate.

I just wonder how such people ever made it to the U.S. Senate.