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

 

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

By Mario Apuzzo, Esq.

January 26, 2021

Fifth Amendment's Due Process Clause

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Copyright © 2021
Mario Apuzzo, Esq.
All Rights Reserved     

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

 

Quo Warranto and the Kerchner v. Obama and Congress Case

Leo Donofrio, Esq. wants the “right” plaintiff to bring a quo warranto action against putative President Obama under 16 D.C.Code Secs. 3501-3503 in the Federal District Court for the District of Columbia. He in effect maintains that quo warranto is an exclusive remedy available to remove Obama from office. He maintains that Obama may be removed from office only through a quo warranto action and that the DC District Court is the only court in the United States where such an action may be brought. I recently wrote an article about this issue, entitled The DC District Court Is Not the Only Court In Which to File a Quo Warranto Action. http://puzo1.blogspot.com/2009/10/dc-district-court-in-not-only-court-in.html. I explained that given the causes of action that I have raised in the Kerchner action, I can also file a quo warranto claim in the Third Circuit. Mr. Donofrio recently posted his disagreement with my article at his blog, http://naturalborncitizen.wordpress.com/2009/10/29/judge-carter-the-writ-of-quo-warranto-must-be-brought-within-the-district-of-columbia-because-president-obama-holds-office-within-that-district/. I will now address Mr. Donofrio’s response to my article.

Before we begin, we must understand that a quo warranto action is a direct attack on an office holder, questioning his qualifications to hold an office and therefore his warrant and authority to occupy that office. It does not challenge any action taken by that person while having been in office. This type of action is to be distinguished from one where the plaintiff brings an indirect attack (collateral attack) against that office holder, arguing that some action taken by him or her is invalid because he or she is not qualified to hold the office from which the action is taken. Nat’l Ass’n of Greeting Card Publishers v. U.S. Postal Service, 569 F.2d 570 (D.C.Cir.1976) (per curiam), vacated and remanded on other ground, 434 U.S. 884 (1977); Andrade v. Lauer, 729 F.2d 1475 (D.C.Cir.1984). As we shall see below, this distinction is important, for it can be argued that direct attacks must satisfy the requirements of a quo warranto action while indirect attacks must satisfy the requirements of the de facto officer doctrine. Mr. Donofrio does not explain which one of these approaches he proposes to take against Obama. The Kerchner action does not challenge any action taken by Obama. Rather it challenges his Article II eligibility (that he is not a “natural born Citizen”) to hold the office of President and Commander in Chief of the Military. Hence, it is a direct attack on Obama’s title to hold the Office of President, contending that he is not Article II eligible to occupy that office.

Since Mr. Donofrio is proposing a quo warranto action, he must be planning a direct attack against Obama. Mr. Donofrio fails to recognize the many problems that exist with the quo warranto procedure that he advocates. Under the common law, only the United States can 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). Hence, it would appear that the DC District Code would solve the problem for a private person wanting to bring such an action against Obama. But the DC District Code presents a cumbersome procedure that has to be followed and which renders the very statute inapplicable to a quo warranto action against a sitting putative President such as Obama.

This procedure starts by requiring that the quo warranto 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 Secs. 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 putative 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 are the United States itself along with the U.S. Congress, Senate, and House of Representatives. 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 Obama’s stance that he is constitutionally eligible to be President. Especially shocking is how the Justice Department has taken the side of Obama rather than support and defend the Constitution and support the plaintiffs who argue that he is not an Article II “natural born Citizen” and therefore not eligible for the Office of President and Commander in Chief of the Military. How does Mr. 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?

It is true that the DC statute provides a private litigant with a mechanism by which he can still bring the quo warranto action even if the government refuses to do so. But if these government officials refuse to institute a quo warranto proceeding as they have thus far so demonstrated, 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.” 16 D.C. Code Sec. 3503. At common law, a private person had no such right to bring the quo warranto action and this DC 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). Nevertheless, 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 in order to qualify to bring the action. Are there any available plaintiffs at this time who fill this bill or will there be any in the future who will do so? I know that Mr. Donofrio is now looking for a plaintiff to retain him to bring a quo warranto action in the DC District Court. But has he advised the public that any would-be plaintiff has to have an interest in the office itself peculiar to himself and that he be actually and personally interested in the office? We must keep in mind that the quo warranto action is only an attack on the title of the office holder and not an attack on any action taken by that person. A suit based on alleged illegal action taken by an office holder provides many more possibilities to establish standing (e.g. illegal firings from employment, illegal takings of property rights, breach of contract, etc.), but as we will see below must satisfy the requirements of the de facto officer doctrine, unless grounded on a constitutional violation in which case it does not. Even if the quo warranto plaintiff could show that he was an “interested person,” the court would still have to grant him its permission to bring the quo warranto action. Can we reasonably expect the DC District Court to give its permission to a plaintiff to bring an eligibility action against Obama whom as we have seen the court views to be a legitimate sitting President? For all of these procedural reasons, it is highly doubtful that the DC District Code even applies to a quo warranto action involving a President.

But there is a more serious problem with what Mr. Donofrio proposes and that is one of constitutional dimensions. Mr. Donofrio claims that Congress has delegated its powers to remove a sitting President to the DC District Court by passing the DC District Code statute. First, I maintain that Congress in passing the DC statute did provide private litigants with a statutory mechanism for bringing quo warranto actions in the DC 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, it is doubtful that Congress meant to include the Office of the President itself when it wrote “public office of the United States” in Section 16-3501. Hence, as written and only interpreting it as though the Office of the President is not included in its sweep, the DC statute would pass constitutional muster. Second, if the DC statute were to be read as Mr. Donofrio does so as to be used as a tool to oust from office a sitting putative President, then I doubt such an application of that statute would be constitutional. It is highly doubtful that Congress, a co-equal branch of government to the Executive, has the constitutional power to pass a statute which would allow a federal district court to alone directly remove a sitting 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.

The Constitution itself textually provides the means by which to remove a sitting 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 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 for misconduct or prevent a person from becoming or continuing as President who is not Article II qualified. The Constitution at Article I, Sec. 2 and 3 gives Congress the power to impeach the President which only applies to a duly elected and confirmed sitting President who is convicted of “Treason, Bribery, or other Crimes and Misdemeanors…” As we can see, impeachment would only apply to a duly elected President who has intentionally committed a serious criminal offense.

To prevent an ineligible person who has won the Electoral College vote from becoming President, the Constitution requires that Congress itself qualify and confirm a President Elect under the Twentieth Amendment. To remove a person who may have improperly gotten past Congress’s qualification and confirmation function, who is not eligible for the Office, and who has not necessarily intentionally committed any serious criminal offense, the Twenty Fifth Amendment provides a procedure for the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide to initiate removal of the President should they deem him “unable to discharge the powers and duties of his office.” The amendment does not limit the scope of the President being “unable” to function, suggesting that such inability can included physical, mental, or legal inabilities. Inability to discharge the powers and duties of an office surely includes the lack of legal capacity to perform those powers and duties. Lack of legal capacity in that regard can be established if one is not qualified to hold that office. Lack of qualification surely includes not being eligible for an office. Not being Article II eligible to be President then shows that Obama is not qualified for the office, lacks legal capacity to perform what is required of him while occupying that office, and is therefore unable to discharge the powers and duties of his office.

A Court presented with a case or controversy could decided and declare that Obama is currently not Article II eligible to be President and therefore constitutionally unable to discharge the powers and duties of this office and transmit that declaration to the Vice President and a majority of the executive department officers who would then initiate the removal procedure prescribed by the Twenty Fifth Amendment. Such a procedure respects separation of powers concerns that a court may have with a notion as Mr. Donofrio espouses of being asked to directly remove a sitting putative President. This procedure, with both the judicial and legislative branches of government involved in the process, also provides checks and balances which are necessary to prevent one branch of government from abusing or usurping powers at the expense of the People. The Kerchner complaint/petition has asked the court to take this exact approach to the eventual removal of the Article II constitutionally ineligible Obama. This approach to Obama’s removal also shows that there is no redressablity (one of the Article III standing requirements) problem should the court want to act.

Mr. Donofrio insists that I file the quo warranto action in Washington. But as we have seen, Mr. Donofrio’s approach is fraught with procedural and constitutional obstacles which may be very difficult if not impossible to overcome in a case brought by a plaintiff who challenges the Article II constitutional eligibility of a sitting putative President and who brings his action in the United States District Court for the District of Columbia under the District of Columbia Code, but who does not have any personal interest in that Office. Indeed, even if a plaintiff is an “interested person,” such a plaintiff would probably be unsuccessful in utilizing that procedure to remove a sitting putative President because of the procedural requirements it demands. Finally, to use the DC District Code in the manner that Mr. Donofrio proposes is probably unconstitutional for want of power in Congress in passing such legislation if Congress intended the DC statutes to work as Mr. Donofrio would want them to work, for being an illegal Congressional delegation of powers to the judicial branch if Congress has such power and for being a violation of separation of powers. Hence, these obstacles would only prevent persons like the Kerchner plaintiffs and others who may be interested in pursuing the Obama eligibility issue from vindicating their individual constitutional rights under the due process clause of the Fifth Amendment to have only a constitutionally qualified President take action against them that significantly and profoundly affects their fundamental individual constitutional rights to liberty, safety, security, protection, and tranquility. Indeed, the technical statutory requirements and the unconstitutionality of a DC District Code quo warranto action against a sitting putative President would most likely render the constitutional eligibility requirements of Article II virtually unenforceable by a person injured thereby. These virtually insurmountable hurdles show that the DC District Code quo warranto action is not adequate for the Kerchner plaintiffs’ needs. Not being adequate it cannot be the exclusive procedure available to them. United States v. Machado, 306 F.Supp. 995 (D.C.N.D.Cal. 1969).

Our Constitutional Republic is based on the Constitution and the rule of law which guarantees individuals due process of law. A denial of all judicial forums and remedies may be a denial of due process. Hence, our judicial branch of government should not allow such a result and rather should use its Constitutional and equitable powers to give a deserving plaintiff the requested constitutional relief he or she seeks. Given these virtually insurmountable procedural and constitutional obstacles, I have therefore taken a different approach to the removal of the Article II ineligible Obama which Mr. Donofrio does not address or refuses to recognize. I have shown that the DC District Court would have exclusive original jurisdiction over a quo warranto petition only if a party is not able to prove that a district court other than the DC District Court has original jurisdiction in the case any other way. If a party wants to avoid having to file its action under the DC code in the DC District Court, a party must show the forum court that it has original jurisdiction by way of some other constitutional or federal statutory provision. If the party can prove that the court has original jurisdiction otherwise by showing that it has an underlying claim based on some other constitutional or federal statutory provision which gives that court original jurisdiction, the party is neither compelled to use the DC statute nor the DC District Court but rather can file the party’s common law quo warranto petition in any district of the United States seeking quo warranto remedies in conjunction with that underlying constitutional or federal statutory provision which is the basis for the court to assert original jurisdiction in the first instance. See F.R.C.P. 81(a)(2) (does not provide for a substantive quo warranto proceeding but rather only allows federal courts to use the already existing common law quo warranto action); See also Ames v. State of Kansas ex rel. Johnston, 111 U.S. 449, 471-72 (1884) (holding that quo warranto was a civil action properly heard by any federal court having federal question jurisdiction); Wilder v. Brace, 218 F.Supp. 860, 863-65 (D.Me. 1963) (a federal court with diversity jurisdiction can hear quo warranto action). Because of the unique nature of a Presidential constitutional eligibility action, the court should not require that a plaintiff bring the action in the name of the United States or that the Attorney General or the United States attorney institute the action or that the court itself grant the plaintiff leave to file the action. A quo warranto action when first created was a civil action, became a criminal one, and now is back to being a civil one. Also, the Kerchner plaintiffs are only asking for quo warranto remedies that will be exercised not directly by the Court but rather by Congress with the assistance of the Court in defining the rights and obligations of the parties to the controversy (e.g. defining what an Article II “natural born Citizen” is). Hence, there exists no constitutional problem (no political question or separation of powers problem) in a court proceeding in this fashion.

Mr. Donofrio does not address my argument that under such circumstances, the district court would obtain ancillary jurisdiction over the petition for quo warranto under 28 U.S.C. Sec. 1651(a) (the All Writs Act), for the court would already have original jurisdiction over plaintiffs’ other constitutional or federal statutory claims. See United States of America Ex Rel. State of Wisconsin, Plaintiff-appellant, v. First Federal Savings and Loan Association and Federal Home Loan Bank Board, Defendants-appellees, 248 F.2d 804 (7th Cir. 1957). In the scenario described, the quo warranto jurisdiction is said to be ancillary to the court's original jurisdiction that rests on a separate and distinct constitutional or federal statutory provision in the first instance. Under such circumstances, the district court would obtain ancillary jurisdiction over the petition for quo warranto under 28 U.S.C. Sec. 1651(a) (the All Writs Act which authorizes the court to "issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law"), for the court would already have original jurisdiction over plaintiff’s other federal claims. Under such circumstances, the All Writs Act may be used because the party is not using the act to augment the jurisdiction of the court but rather only petitioning the court that it issue the quo warranto writ as an aid to the court's already existing original jurisdiction. Indeed, “[u]nless appropriately confined by Congress, a federal court may avail itself of all auxiliary writs as aids in the performance of its duties when the use of such historic aids is calculated in its sound judgment to achieve the ends of justice entrusted to it.” Adams v. United States ex rel McCann, 317 U.S. 269, 273 (1942). Hence, the court can avail itself of the quo warranto writ to provide the plaintiffs with authority to discover the facts and Obamas’s legal position concerning his Article II eligibility to be President. Finally and critically important, in the Kerchner proceeding the quo warranto action does not stand alone which in the context of attempting to remove a sitting putative President under the DC District Code would present the procedural and constitutional problems that I have explained above, but also with other constitutional causes of action against Obama and Congress that give the court the ability to fashion the appropriate remedy (solving any redressability problems) and to satisfy separation of powers and checks and balances concerns.

Use of the quo warranto remedy has already come up in the Third Circuit Court of Appeals in Philadelphia in the case of United States v. Malmin, 272 F. 785 (3rd Cir. 1921). While the Court decided the case by issuing a peremptory writ of mandamus to a federal district court judge sitting in the Virgin Islands of the United States rather than a writ of quo warranto testing his title to the office, it did leave open the possibility that in the future a quo warranto action may be needed to test that title. The Court did not state that such action could not be brought in the Third Circuit and that such an action would have to be brought in the DC District Court under the DC statute.

Mr. Donofrio also argues that Congress through the DC District Code has given the DC District Court “exclusive” jurisdiction over any quo warranto action filed in the federal courts against Obama. He wants to give the DC district court exclusive jurisdiction over any quo warranto action existing in any place of the United States by way of Article I, Sec. 8, cl. 17, which provides: “The Congress shall have power…[t]o exercise exclusive Legislation in all Cases whatsoever, over such District…as may…become the Seat of the Government of the United States…” First, the statutes themselves no where say that Congress gave such exclusive jurisdiction to that court alone over any quo warranto action against any federal officer let alone a sitting President. Mr. Donofrio does not read Article I, Sec. 8, cl. 17 correctly, for it is designed only to establish who shall have jurisdiction over this specially created piece of 10-square-miles piece of land, not to restrict in any way the powers of the federal courts of the United States to that specific location. Starting with the Judiciary Act of 1789, c. 20 (1 St. 73) we can readily see that Congress has always been very careful about how it assigns jurisdiction to the federal courts and if that were its intent, it would have clearly said that the jurisdiction in the DC District Court is both original and exclusive. See Ames v. State of Kansas ex rel. Johnston, 111 U.S. 449 (1884). For example, some state legislatures have put language in their quo warranto statutes indicating that quo warranto jurisdiction is exclusive with a certain court of the State. See Henning v. Village of Waterford, 78 Wis.2d 181, 253 N.W.2d 893 (1977) (Wisconsin). Second, Mr. Donofrio’s argument cannot be correct given that Article III, Section 2 of the Constitution provides that “[t]he judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treatise made, or which shall be made, under their Authority….” This broad grant of judicial power extends to all the federal courts in the United States, not to just any specific ones. The Kerchner action is not only based on a federal statutory infraction, but also a constitutional violation. I established jurisdiction in the Third Circuit under, among other statutes, 28 U.S.C. Sec. 1346(a)(2) and 28 U.S.C. Sec. 1331. Moreover, I established venue in the Third Circuit by satisfying 28 U.S.C. Sec. 1391(e). See Ames, 111 U.S. at 462 (it has never been doubted that a case is presented which arises under the laws of the United States, citing Cohens v. Virginia, 6 Wheat. 379, Gold Washing & Water Co. v. Keyes, 96 U.S. 201, Railroad Co. v. Mississippi, 102 U.S. 140). Third, as I have shown above, “original and exclusive” jurisdiction is lodged in the DC District Court only if a litigant does not have any other constitutional or federal statutory cause of action. The Kerchner action does have independent constitutional and federal statutory causes of action and therefore is not bound by the DC District Code to be filed only in the DC district court. Fourth, as I have shown above, it is doubtful that Congress has the constitutional power to pass a statute such as the DC District Code if it were to be used to remove a sitting President.

Mr. Donofrio curtly dismisses the Kerchner action as an “exotic concept.” But there is nothing “exotic” about it. Indeed, in the words of Chief Justice Waite in United States v. Cruiksahank, 92 U.S. 542 (1875): ‘Citizens are the members of the political society to which they belong. They are the people who compose the community , and who , in their associated capacity, have established or submitted themselves to the dominion of a government for the promotion of their general welfare and the protection of their individual as well as their collective rights.” For sure, Obama, if he were a legitimate President and regardless of whether they voted for him or note, would have the constitutional duty to provide for the Kerchner plaintiffs’ general welfare and to specifically provide for their protection. In return, they would consent to submit to his legal authority over them. I have included in the complaint/petition various original jurisdiction constitutional claims. These claims are based on the First (redress of grievances), Fifth (deprivation of liberty, safety, security, protection, and tranquility without procedural and substantive due process of law and denial of equal protection), and Ninth Amendment (denial of rights retained by the people), all of which support the independent quo warranto action and which provide the original jurisdictional foundation on which the quo warranto rests. The Ninth Amendment to the United States Constitution guarantees to the People rights not granted in the Constitution to the Federal government and reserves to the People certain rights as they were understood at the time that Constitution was adopted in 1789. The guarantee of those rights is a matter of compact or contract between the Federal government and the People of the United States as of the time that the compact or contract with the United States was agreed upon and adopted by the People in 1789. Quo warranto is an ancient common law writ which existed at the time the Constitution was adopted. The Ninth Amendment, which preserves for the People their ancient common law remedies and writs, along with the common law and principles of equity therefore take the place of the D.C. statute which is not needed to give the Kerchner plaintiffs a right to seek quo warranto remedies through the judicial and legislative branches working together, provided the forum court has original jurisdiction otherwise.

Moreover, if quo warranto is not available because of some procedural obstacle, the remedy of quo warranto may be asked for in a declaratory judgment action which also seeks injunctive and mandamus relief. In such a case, declaratory judgment is permitted because the common law requirement that quo warranto be brought by the attorney general (at common law a private individual has no standing to institute a quo warranto action) limits the availability and adequacy of the remedy. Bochard, Declaratory Judgments, 2d ed., p. 362; Anderson, Declaratory Judgments, 2d ed., sec. 195, p. 385; United States v. Machado, 306 F.Supp. 995 (N.D.Cal.1969). Hence, a court can provide a plaintiff with equitable remedies that include those offered by a quo warranto action. There is no reason why the court should not exercise its equitable powers to do justice when warranted by the special circumstances of the case with which it is presented. It is only right that plaintiffs not be left with no remedy should quo warranto relief not be available because of its cumbersome requirements which probably can not be satisfied in a case challenging a sitting putative President. Declaration, mandamus, and injunction based on constitutional violations can include the quo warranto remedies even though the quo warranto remedies might not be available if the quo warranto action stood alone. See United States ex rel. Noel v. Carmody, 148 F.2d 684 (D.C.D.C. Cir. 1945) (if quo warranto does not provide plaintiff with an effective remedy, plaintiff would be limited to relief by way of bill in equity). In the Kerchner action, in addition to quo warranto remedies, I have asked for equitable relief in the form of declaration, injunction, and mandamus. See Andrade, v. Lauer, 729 F.2d 1475 (D.C. Cir. 1984) (in this action challenging an office holder’s action and his title to the office, the court explained that such equitable remedies can replace quo warranto remedies, provided a plaintiff can show he has standing and that he has met the requirements of the de facto officer doctrine by showing that he took timely action against the office holder and that the government agency had reasonable notice of the claimed defect in the officer’s title to the office so as to have the opportunity to remedy any such defects). Even though the Kerchner case is not one that challenges any action taken by Obama but only his Article II constitutional qualifications to hold the title to the Office of President, we nevertheless satisfy any de facto officer doctrine concerns and therefore make a stronger case compelling equitable relief.

First, I filed the Kerchner complaint/petition, seeking declaratory, injunctive, and mandamus relief, before Obama was sworn in as President on January 20, 2009. Hence, my action is surely timely. Second, Obama and Congress have had notice of the challenge to Obama’s Article II eligibility well before the election and even through the Kerchner action itself. Hence, they have had an opportunity to address and remedy the challenge to Obama’s constitutional eligibility to fill the Office of President. But despite this opportunity, they have both refused to acknowledge the “natural born Citizen” issue (that Obama has not conclusively proven that he was born in Hawaii and even if he was he is not a “natural born Citizen” because he was not born in the United States to a mother and father who were at his birth United States citizens) let alone address and remedy this serious constitutional crisis. On the contrary, both Congress and the Executive have sided with Obama, who being sued not only in his official capacity but also in his private capacity has the burden to show that he is constitutionally qualified for the Office of President, and have taken every possible step to deny any plaintiffs their day in court. Additionally, it can be successfully maintained that given that the Kerchner plaintiffs have raised substantial constitutional questions involving whether Obama is eligible under Article II to fill the Office of President, the de facto officer doctrine cannot be used against them in the first place. Glidden Co. v. Zdanok, 370 U.S. 530, 535-38 (1962); Ryder v. United States, 515 U.S. 177 (1995).

On October 20, 2009, the Federal District Court for the District of New Jersey dismissed the Kerchner case on the defendants’ motion to dismiss. The Court did not rule that Obama has conclusively proven that he was born in Hawaii. The Court also did not rule that Obama is an Article II “natural born Citizen.” Rather, the Court dismissed the plaintiffs’ case because of jurisdiction (Article III and prudential standing) and the political question doctrine without commenting on the underlying merits of whether Obama is constitutionally qualified to be President and Commander in Chief of the Military. The Court also did not rule that the plaintiffs’ claims are frivolous. Additionally, unlike in the Keyes/Barnett v. Obama case in California, the defendants did not argue that the Kerchner quo warranto action was filed in the wrong court. Judge Simandle also did not rule that it was incorrectly filed. By the Court finding that plaintiffs do not have standing and that their claims present a political question, the Court was able to avoid having to address the underlying merits of the Kerchner case. With such a decision, the American People unfortunately still do not know where Obama was born and whether he is an Article II “natural born Citizen” and therefore constitutionally eligible to be President and Commander in Chief. The Kerchner action is now on appeal to the Third Circuit Court of Appeals in Philadelphia where it is hoped the Kerchner plaintiffs will receive the judicial and public attention that their case so rightfully deserves.

Mario Apuzzo, Esq.
185 Gatzmer Avenue
Jamesburg, New Jersey 08831
http://puzo1.blogspot.com/
November 9, 2009

The DC District Court Is Not the Only Court In Which to File a Quo Warranto Action

I do not agree with the notion that only the DC District Court has general jurisdiction over a Quo Warranto petition. The DC district court would have exclusive original jurisdiction over such a petition only if a party is not able to prove that a district court other than the DC court has original jurisdiction in the case any other way. If a party wants to avoid having to file its action under the DC code in the DC district, that party must show the forum court that it has original jurisdiction by way of some other constitutional or statutory provision. This means that the party cannot rely upon the quo warranto action alone to try to prove that the forum district court has original jurisdiction. If the party can prove that the court has original jurisdiction otherwise by showing that it has an underlying claim based on some other constitutional or statutory provision which gives that court original jurisdiction, the party is neither compelled to use the DC statute nor the DC district court but rather can file the party’s quo warranto petition in any district of the United States seeking relief in conjunction with that underlying statutory or constitutional provision which is the basis for the court to assert original jurisdiction in the first instance. In such later case, the quo warranto jurisdiction is ancillary to the court's original jurisdiction that rests on a separate and distinct constitutional or statutory provision in the first instance. Under such circumstances, the district court would obtain ancillary jurisdiction over the petition for quo warranto under 28 U.S.C. Sec. 1651(a) (the All Writs Act), for the court would already have original jurisdiction over plaintiff’s other claims. See United States of America Ex Rel. State of Wisconsin, Plaintiff-appellant, v. First Federal Savings and Loan Association and Federal Home Loan Bank Board, Defendants-appellees, 248 F.2d 804 (7th Cir. 1957).

In the scenario described, the quo warranto jurisdiction is said to be ancillary to the court's original jurisdiction that rests on a separate and distinct statutory or constitutional provision in the first instance. Under such circumstances, the district court would obtain ancillary jurisdiction over the petition for quo warranto under 28 U.S.C. Sec. 1651(a) (the All Writs Act which authorizes the court to "issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law"), for the court would already have original jurisdiction over plaintiff’s other claims. Under such circumstances, the All Writs Act may be used because the party is not using the act to augment the jurisdiction of the court but rather only petitioning the court that it issue the quo warranto writ as an aid to the court's already existing original jurisdiction.

As far as showing that the Court has original jurisdiction otherwise than through the quo warranto action, one has to put forward a cause of action based on the Constitution or federal statute that gives the court that original jurisdiction. In the Kerchner complaint, I have included various original jurisdiction constitutional claims. These claims are based on the First (redress of grievances), Fifth (deprivation of liberty, safety, security, and tranquility without procedural and substantive due process of law and denial of equal protection), and Ninth Amendment (denial of rights retained by the people), all of which support the independent quo warranto action and which provide the original jurisdictional foundation on which the quo warranto rests. Quo warranto is an ancient common law writ. The Ninth Amendment, which preserves for the sovereign We the People their ancient common law remedies and writs, takes the place of the D.C. statute.

Mario Apuzzo, Esq.
185 Gatzmer Avenue
Jamesburg, New Jersey 08831
http://puzo1.blogspot.com/
October 31, 2009