Monday, February 8, 2021

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


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


Copyright © 2021
Mario Apuzzo, Esq.
All Rights Reserved


AnnD said...

I'm not an attorney, but this sounds like a very reasonable course of action. How to get it to President Trump's legal team?

Carlyle said...

"permanently banned from office"

How is this supposed to happen? The last I looked there were only 4 qualifications for president - the 3 often discussed here and term limit provisions. The impeachment trial cannot affect any of these. They could throw Trump in jail and we could still vote for him and elect him president!

Mario Apuzzo, Esq. said...

“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.” Article II, Section 4.

“Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust or profit under the United States: but the party convicted shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law.” Article I, Section 3, Clause 7.

Hence, the constitutional punishment upon impeachment and conviction is removal from office and can include disqualification from future office, the former with a two-thirds vote and the latter arguably with a simple majority vote. This is what the Constitution says and means.

Hence, you cannot read Article II, Section, 1 Clause 5 in isolation. The rest of the Constitution also counts. Also, we cannot just read the Constitution for what we like but must also read it for what we do not like.

Are you suggesting that a hypothetically disqualified Trump is going to just run for President in 2024 and pay no attention to the Constitution? Are you also suggesting that his adversary is going to just sit idly by and let him do that? Unlike natural born citizen clause enforcement which does not exist in our nation due to political correctness and cowardice, the same would not apply if Trump could be knocked down with disqualification from office.

ajtelles said...

Hi Mario,

Hmm, interesting point, "Judgment...removal from office, and ... disqualification to hold …" future office.

Since "impeachment" is step # 1, and "Judgment...removal from office" is step #2, and the so-called "impeachment" of President Trump while he was President did not result in a "judgment" for his "removal from office" after a Senate trial, it seems at we are in constitutional neutral territory.

Will former President X of the future, male or female, have a case to refute a so-called Senate "trial" if the Senate did not make a “judgment” and convict while the President was in "office" as President?

Will the answer depend on who is in control of the House and the Senate, and whether “the law disappeared”, or will the answer depend on the “rule of law” regardless of who is in control of the Congress?

Time will tell in a few days – or maybe weeks, and will tell us what will happen in the future.


Carlyle said...

Thank you for the thorough answer to my previous concern. Now, what about this?

I sure hope Trump and his lawyers have a better defense than "you have no authority to do this". In a political trial, that defense has never, not once, ever worked. It only excites the accusers to escalate their hate - foaming at the mouth.

The charge on the table is "he lied, therefore incited violence". The only possible defense is "I did not lie". And then proceed to prove it. That would be a good time to "release the kraken".

PS - I agree with your Declaratory Judgement idea, but it looks like that is not going to happen.

Mario Apuzzo, Esq. said...


We are in full agreement.

Mario Apuzzo, Esq. said...

As I correctly predicted, the Senate (with 6 Republican Senators joining the 50 Democrat Senators) has rejected Trump's lawyers' argument that the impeachment Senate trial of a president who is no longer in office is unconstitutional. The trial is now supposed to move forward to the merits. But will it really?

The Senate will not treat him fairly there. The Democrat presentation will be driven by mostly emotion and rhetoric, all splashed via videos on big screens and impassioned speeches by invasion survivors, not to mention speeches about the unfortunate deaths. The legal issues, i.e., the integrity of the election in the contested states and whether Trump legally caused the Capitol invasion, will get lost in all that demagoguery. We have to hope that the Republican Senators do not get swept up by the propaganda and media pressure.

Now that Trump lost the unconstitutionality argument, he has to address the merits. Trump still has time to file his declaratory judgment action in federal district court to do that. That is why Trump has to get out of the show Senate and take his case to federal district court while he still has time. If Trump does not take his case out of the Senate, he would be stuck with a Senate conviction should it go that way. A declaratory judgment action court post-Senate impeachment conviction will decline jurisdiction, finding that there is no longer a live controversy between the parties given that the court could not give Trump any remedy that he would need to prevent his conviction in the Senate since that conviction would have already occurred. Hence, Trump would lose the ability to vindicate himself in a federal court.

Trump has to make a critical decision. The Democrats need 17 Republican votes. They already have 6 without getting to the merits show. Can Trump trust the remaining 11 Republican Senators not to cave in for whatever reason that may drive them to do so?

Mario Apuzzo, Esq. said...

Nikki Haley has turned on Trump for the sake of what she considers to be in the best interest of her political career. See here,

Well, someone should never be rewarded for being a traitor. Dante, in his Dante's Inferno, placed traitors in Hell's innermost Ninth Circle, a punishment for the deep moral sin of treachery against and betrayal of one's loved ones, friends, countries, cities, guests, and masters. Dante assures that these offenders are forever frozen for their sins.

Furthermore and more importantly, Nikki Haley is not, like putative Vice President Kamala Harris, constitutionally qualified to be President or Vice President. While she might have been born in the United States, she was not born to two U.S. citizen parents.

Mario Apuzzo, Esq. said...

Geoff Johnson has written an article, “Students need to learn about consequences of spreading disinformation,” . Well, Johnson should take a lesson from his own advice.

Johnson wants people to be ethical in their communications. Johnson complains about “misinformation, innuendo and, on occasion, outright indefensible lies” that people spread in social media and news sources. He wants schools to teach courses on ethics in online communications and courts to punish lies in the media. He gives two examples of these “lies.” He states that former President Trump spread the “stolen election” lie regarding the integrity of the election in the contested states and Fox News’s Lou Dobbs claiming “that former U.S. president Barack Obama was not a natural-born U.S. citizen.” Now, what irony. Johnson complains of people spreading disinformation. As to the election, the U.S. Supreme Court has yet to decide the election issues in some of the contested states. Johnson makes no mention of that. As to whether Obama is a natural born citizen, anyone who has adequately researched the meaning of a natural born citizen should conclude that Obama was not a natural born citizen. He might have been born in the U.S., but he was not born to two U.S. citizen parents. His father was not a U.S. citizen when Obama was born. This is a significant constitutional issue that the U.S. Supreme Court also needs to resolve. So, Johnson should follow his own advice and stop spreading lies in the news.

ajtelles said...

Hi Mario,

In reading your comment on February 15, 2021 at 5:39 AM, It seems that Geoff Johnson is an example of being "woke" about truth and lies.

What is a truth and what is a lie?

Well, Victor Davis Hanson has some interesting things to say about the mindset that may be behind new truths and new lies.

This is the info text from American Thought Leaders.

"American Thought Leaders - The Epoch Times

"In this episode, we sit down with classicist and historian Victor Davis Hanson to discuss the rise of critical social justice and woke ideology, growing limits on freedom of speech, and his take on the second impeachment trial of former President Donald Trump.

" 'It's like a public-shaming like the Communist Party used to make people wear dunce caps,' Hanson says.

"This is American Thought Leaders, and I’m Jan Jekielek."

Mario, Geoff Johnson can’t do anything about what he thinks ‘cause he’s “woke”, and he knows the truth about the election and the presidential eligibility status of Barack Obama. Donald Trump is wrong simply because he said what he said about fraud, and Lou Dobbs is wrong simply because he said what he said about eligibility. Geoff is “woke” and the U. S. Supreme Court opining about presidential eligibility will not be accepted unless the Court opines that being born on U. S. soil does NOT require birth to two U. S. citizen parents. See, it’s so easy to know a truth from a lie ‘cause when you are “woke” you are on the winning side.

For that “woke” reason, a constitutional amendment would be better than a Supreme Court “opinion” about the implicit intent of “natural born Citizen” for eligibility to be president. Unless, of course, the amendment agreed to articulated explicitly, not implicitly, that birth on U. S. soil to two U. S. citizen parents was not necessary to be president.

With a “woke” Supreme Court, who knows what could “opined” by the Court?

I’m just wondering out loud about what being “woke” implies because absolutely nobody has said anything about Kamala Harris NOT being eligible to be Vice President or President. That includes President Trump and also Lou Dobbs, before or after FOX silenced him by keeping him on the payroll.