A Declaratory Judgment Action In a Court of Law Is the Best Chance that We Have to Learn the Truth About the 2020 Presidential Election and the Capitol Invasion
By Mario Apuzzo, Esq.
February 8, 2021
It looks like I was correct when I warned about Republicans turning on former President Donald J. Trump. See my previous articles with comments, “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), “President Trump Needs to Make His Impeachment Defense First In Court Before Making It In the Senate” (Jan. 17, 2021), and “Former President Donald J. Trump Should File a Declaratory Judgment Action and Not a Quo Warranto Action” (Jan. 26, 2021).
We have this just before Trump's Senate impeachment trial is set to begin. "Breaking With G.O.P., Top Conservative Lawyer Says Trump Can Stand Trial.” Conservative Attorney Charles J. Cooper is the writer. The mainstream media is in love with Mr. Cooper, given that he has represented and continues to represent various political foes of Trump and now argues that under the Constitution’s impeachment clause the House has the authority to charge and the Senate to convict a former president for his conduct occurring while he was in office, even though at the time of the Senate trial he is no longer in office. The simple reason for that is, as I have also stated, the Congress may still want to, in addition to removing such an offender from his current office, also ban him from future political office. I have warned that this will be the winning argument, but the Republicans are bent on trying to get Trump's case dismissed without ever reaching the merits of the election irregularities and whether Trump caused the Capitol invasion.
At this time, Trump faces four scenarios, with only the fourth providing the public with the truth about the 2020 presidential election and the Capitol invasion that followed and Trump clearing himself from any wrongdoing.
First, without Trump preparing and presenting a defense on the merits, Trump's Republican political enemies will win. I have explained that they hope to achieve a procedural dismissal so that the question of the 2020 presidential election does not have to be laid open before the Senate of the United States, which voted to certify that election on January 6, 2021. Hence, if Trump’s detractors win on procedural grounds, the election issue will not be revisited, and Trump will not have cleared his name.
Second, if the Senate denies Trump's motion to dismiss on procedural grounds and moves forward with the merits, Trump will need to be prepared to defend himself. At this time, it is not clear what Trump will present as his defense during the trial. The media is already reporting that there probably will not be any witnesses at the trial which means that it is not possible that Trump would be able to present all the facts related to the 2020 presidential election and his alleged role in the Capitol invasion. It would also be a farce for Trump to testify at the trial without presenting any other evidence. If Trump’s detractors lose on procedural grounds, it is likely that 17 Senators, for the sake of their future political careers, will not join the impeaching Democrats which gives Trump only a veneer of victory, for Trump, while not being banned from future political office, will still not have cleared his name. The merits trial will be filled with propaganda imagery of the invasion which will be the Democrats' unspoken let alone proof that Trump caused what the viewers can see on the big media screens. That show trial will create a biased record that will follow Trump and his supporters for life.
Third, if 17 Republicans do vote to convict, Trump will not have cleared his name and will most probably be forever barred from future office.
Fourth, Trump has chosen at his peril the politically charged Senate rather than a court of law in which I have recommended he should file a declaratory judgment action, request a stay of the Senate trial, and where he has a better chance that his due process rights would be respected. The pending election lawsuits to be heard in the U.S. Supreme Court only addresses the actual election. They do not involve the Capitol invasion and the critical question of whether Trump legally caused that invasion. It is only in a declaratory judgment action filed in a court of law--where Trump (assuming he does not fear being deposed and called as a witness) would have discovery, subpoena powers, the ability to call witnesses, and the right to litigate both the integrity of the election in the contested states and whether he legally caused the Capitol invasion--that Trump stands any chance of creating a credible factual record of what happened in the 2020 presidential election and in the Capitol invasion. It is only in a court of law that Trump has any chance of proving to the American people and the world the truth of what happened in the 2020 election and in the Capitol invasion that followed.
Mario Apuzzo, Esq.
February 8, 2021
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Mario Apuzzo, Esq.
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