leo donofrio - quo warranto expanded

8/14/2019 Leo Donofrio - Quo Warranto expanded

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Leo Donofrio Quo Warranto

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Misconceptions About Quo W arr anto

Posted in Uncategorized on November 26, 2009 by naturalborncitizenhttp://naturalborncitizen.wordpress.com/

There is quite a bit of confusion regarding the federal quo warranto statute

(http://tinyurl.com/yg7humv). Since the statute will most likely be invoked by private citizensin the near future, I will discuss some of the confusion floating about. Recently, Mario ApuzzoEsq. added to the confusion with a blog post (http://tinyurl.com/yl5anlb) that contains multiplemisconceptions regarding the federal quo warranto statute and applicable case law.

I know Mr. Apuzzo is an honorable attorney and an intelligent man. I do not want my readersto get the impression that I am advocating otherwise. Regardless, it is necessary for me tostrongly counter the impression his recent report has given the public.

I will ask that readers please bone up on the exhaustive work I published back in March whichMr. Apuzzo failed to acknowledge in his post. My previous three part series can be found at

the following links:

Quo Warranto Legal Brief Part 1 (below, page 10)



I will draw from these previous publications to correct Apuzzos recent mistakes.

Mr. Apuzzo stated on November 9th, 2009:

Before we begin, we must understand that a quo warranto action is a directattack on an office holder, questioning his qualifications to hold an office andtherefore his warrant and authority to occupy that office. It does not challengeany action taken by that person while having been in office. This type of actionis to be distinguished from one where the plaintiff brings an indirect attack(collateral attack) aga inst that office holder, arguing that some action taken byhim or her is invalid because he or she is not qualified to hold the office fromwhich the action is takenAndrade v. Lauer, 729 F.2d 1475 (D.C.Cir.1984). Aswe shall see below, this distinction is important, for it can be argued that directattacks must satisfy the requirements of a quo warra nto 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 takeagainst Obama.

I have discussed the difference between collateral attacks and direct attacks in quo warrantoon multiple occasions going all the way back to March 2009 when I introduced my readers tothe important DC Court of Appeals case Andrade v. Lauer:


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- Under the holding in ANDRADE v. LAUER, 729 F.2d 1475, 234 U.S.App.D.C.384 (1984), (http://tinyurl.com/y9d5saq ) the Court of Appeals for the District ofColumbia has held that the defacto officers doctrine does not prohibit collateralattacks of official actions based upon a public officers lack of eligibility. Theseare not quo warra nto suits to remove the official, they are civil suits tochallenge a specific action of that official.

In the Andrade case, the plaintiffs were Government employees who lost theirjobs to reduction in force ordinances which cut whole departments from theGovernment budget. The plaintiffs sued alleging those who did the cutting werenot Constitutionally qualified to make such decisions in that their appointmentsviolated the appointments clause of the US Constitution.

The DC District Court held that the plaintiffs had no standing other than tobring a direct attack in quo warra nto to remove the alleged usurper. But theDC Court of Appeals reversed and said the plaintiffs, who had suffered realinjuries, could bring such an action on a case by case basis if they could provetheir injury in fact (being fired) was caused by a Government official who wasnot eligible to serve.

The false implication from Mr. Apuzzos recent article is that I havent considered thedifference between direct and collateral attacks. I certainly have, as my prior reports predatehis by eight months. Apuzzo goes on to say:

Since Mr. Donofrio is proposing a quo warra nto action, he must be planning adirect attack against Obama. Mr. Donofrio fails to recognize the manyproblems that exist with the quo warra nto procedure that he advocates.

I have been on the record numerous times to explain the difficulties in proving one is an

interested person under the statute. The difficulty is covered in great detail in my previousthree part series. Apuzzo fails to acknowledge this work and then berates me as if the workdoes not exist.

But the most serious deficiency in Mr. Apuzzos work concerns his failure to properly quotethe US Supreme Court wherein he states:

Under the standard for being an interested person as pronounced by Newmanv. United States ex rel. Frizzell, 238 U.S. 537 (1915), in a case involving a publicoffice one would have to have an interest in the office itself peculiar tohimself and be filing an action against another who allegedly usurped that

office. Indeed, Newman requires that the plaintiff be actually and personallyinterested in the office and that there be another person against whom theaction is brought who has unlawfully occupied the office in question. In otherwords, the plaintiff must himself make a claim to the office in order to qualify tobring the action.

Mr. Apuzzo has ignored the most important part of the holding in the controlling US SupremeCourt case which has construed the quo warranto statute Newman v. United States ex rel.Frizzell, 238 U.S. 537 (1915) (http://tinyurl.com/ygycrpm). His reporting here is blatantly


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mistaken. In the Newman case, the SCOTUS discussed the issue concerning who may be aninterested person under the statute and they left a huge barn door open on this point. Pleaserefresh your memories on this most important SCOTUS precedent:

For in neither case is there any intent to permit the public office to be the subjectmatter of private litigation at the instance of one who has no interest therein

which differs from that of every other member of the public. The claim that thisconstruction makes the statute nugatory cannot be sustained, for the statute, asalready pointed out, gives a person who has been unlawfully ousted before histerm expired a right, on proof of interest, to the issuance of the writ, a n d t h e r em i g h t b e ca s e s u n d e r t h e c iv i l s e r v i ce la w i n w h i c h t h e r e la t o r w o u l d

h a v e a n i n t e r es t a n d t h e r e fo r e a r i g h t t o b e h e a r d .

It is that final line issued by the SCOTUS which provides the best possible access to the quowarranto statute and the DC District Court for review of Obamas eligibility. As readers of thisblog are fully aware, I have said over and again that somebody like former Inspector General Walpin (http://tinyurl.com/lxedzg) fired from his civil service position by Obama wouldhave a fair chance at qualifying as an interested person to make a direct attack via quowarranto upon Obamas eligibility in the DC District Court.

Back in March I stated in Quo Warranto part 3 below:

SCOTUS held that interested persons would include persons ousted from theoffice they are challenging. But they left the door open with that last line, andthere might be cases under t h e c i v i l s e rv i ce l aw in which the relator wouldhave an interest and therefore a right to be heard.

Mr. Apuzzo fails to mention this part of the holding in Newman, and he fails to mention myprevious discussion thereof. Furthermore, he goes on to say:

Are there any a vailable plaintiffs at this time who fill this bill or w ill there beany in the future who will do so? I know that Mr. Donofrio is now looking for aplaintiff 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 interestin the office itself peculiar to himself and that he be actually and personallyinterested in the office?

The record is quite clear. I have advised the public regarding the Newman case and the quowarranto statute since March. And I have done so comprehensively whereas Mr. Apuzzo hasnot. There is no excuse for Apuzzos ignorance of this important aspect of the Newman

holding. It greatly expands the definition of interested person.

Furthermore, I am not looking for plaintiffs. But plaintiffs have certainly come looking forme. I have not directly solicited anyone. I simply stated on my blog that I was open tospeaking to persons who might fit into the statutes requirements as defined by SCOTUS.

I have turned most who contacted me down because they did not meet the requirementsdiscussed by the SCOTUS in Newman. Ive had long conversations with active militarypersons. I counseled them not to bring quo warranto actions in the DC District Court since


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the holding in Newman provides no wiggle room for military plaintiffs. Our brave soldiers arecertainlyinterested in their Commander being eligible, but the holding in Newman is ratherstrict. The court only listed two possible groups of eligible candidates for 3503 access to adirect attack via quo warranto those who seek the office and others who might have claimsunder the civil service laws. Since SCOTUS went out of their way to limit this holding tothese two possible sets of persons, the chances of military persons gaining access under the

statute is remote. Not impossible but certainly remote.

Until the statute is tried by per sons effe cted by the civil service laws, I do notbelieve the m ilitary should be on the fro nt line for this issue. And I explainedthis back in Mar ch as w ell, stating:

I dont believe the military are party to the civil service laws, so I dont see themas being the plaintiffs with the best possible standing.

Apuzzo then goes on to argue that the quo warranto statute cant remove a sitting President,stating:

Second, if the DC statute were to be read as Mr. Donofrio does so as to be usedas a tool to oust from office a sitting putative President, then I doubt such anapplication of that statute would be constitutional. It is highly doubtful thatCongress, a co-equal branch of government to the Executive, has theconstitutional power to pass a statute which would allow a federal district courtto alone directly remove a sitting President.

I have addressed the constitutional issues in great detail in my prior reports. But this isexactly the argument recently made by the Department of Justice before Judge Carter inBarnett v. Obama. The DOJ argued that the quo warranto statute could not be used to removea sitting President. But Judge Carter did not adopt the DOJ argument in his holding in

Barnett v. Obama (http://tinyurl.com/ykfljd3). Instead, Judge Carter stated on page 25 ofthat decision:

The writ of quo warranto must be brought within the District of Columbiabecause President Obama holds office within that district. The quo warrantoprovision codified in the District of Columbia Code provides, A quo warrantomay be issued from the United States District Court for the District of Columbiain the name of the United States against a person who within the District ofColumbia usurps, intrudes into, or unlawfully holds or exercises, a franchiseconferred by the United States or a public office of the United States, civil ormilitary. D.C. Code 16-3501 16-3503.

Its very encouraging that faced with the chance to affirm the DOJ position, Judge Carterrefrained form doing so. Instead, he quotes the clear language of the statute which applies toall United States offices. As Mr. Apuzzo is well aware, when the language of a statute is clear,the courts have consistently refused to construe the statute otherwise. Accordingly, JudgeCarter was careful to state that The writ of quo warranto must be brought within the Districtof Columbia because President Obama holds office within that district.


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Another mistake made by Apuzzo is his reliance upon Wilder v. Bracewhere he states that afederal court with diversity jurisdiction can hear quo warranto action. Unfortunately,Apuzzo fails to acknowledge that the holding in Wilder only extends to a state quo warrantoaction, not a federal action. This was discussed in Tuscon v. US West(http://tinyurl.com/ygxtufy) as follows:

Wilder v. Brace, 218 F. Supp. 863-65 (D. Me. 1963) (holding that a federal courtwith diversity jurisdiction can hear a state quo warranto action).

Astate quo warranto action is a very different beast than a quo warranto to remove a USnational office holder. Most of the States have their own quo warranto statutes effecting stateofficers. The holding in Wilder simply clarifies that a federal court with diversity jurisdictionapplying state law may applystate quo warranto law. This is a completely different situationthan a federal quo warranto action to remove a US national office holder.

As I have pointed out in my previous reports (please review links form above), the federalcourts have consistently refused to entertain federal quo warranto actions against US nationaloffice holders due to the very specific wording of the quo warranto statute. As stated above,Judge Carter recently reaffirmed this to be the law.

In conclusion, I must reiterate that Mr. Apuzzo fails to quote the highest court in the landproperly and in doing so he misses the forest for the trees. Once again, SCOTUS stated in theNewman holding:

there might be cases under the civil service law in which the relator wouldhave an interest and therefore a right to be heard.

This one line is the single most important precedent concerning the issue of who may be aninterested person under 16-3503 of the quo warranto statute. Why Mr. Apuzzo fails to

mention it is a mystery to me. I have been educating the public thereto since March 09. I amproud of my work and I stand by it.

Leo C. Donofrio

http://naturalborncitizen.wordpress.com/

The "exchange" found Puzo writing a lengthy comment and Donofrio writing rejoinders (in brackets

after the abbreviation "Ed.") so that points (Puzo's) and counterpoints (Donofrio's) were embeddedthroughout. The original had different colors which helped, insofar as LD didn't always insert an END

bracket.

puzo1 Says:

November 27, 2009 at 3:04 AM

Leo,

I am surprised that you state that I missed the Newman statement: there might be cases under

the civil service law in which the relator would have an interest and therefore a right to be


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heard. I did not miss this point.

[Ed. You failed to include the Newman "civil service law" quote in your long essay. You failed to

analyze it or mention it at all. You also failed to mention where the DC Court of Appeals in Andradealso discussed the "civil service law" statement by the SCOTUS in Newman. You completely avoided

it.]

First, I will remind you that during our 5-hour, March 3, 2009 meeting in my office, I was the one

who pointed that language out to you and suggested that it may be a means by which a plaintiff

could gain standing otherwise than by being interested in the Office of President. When I raised

that point with you, you even complimented me on my theory.

[ed. I take strong issue with this assertion. That is not my recollection at all, sir. I went to your office

and explained to you that you had brought your action for quo warranto in the wrong venue. I told youthat you needed to file your request for use of the name of the United States with the AG or US

Attorney as well. I stated quite clearly to you that your case would be dismissed and it was.

Back on February 27, 2009, I made reference in my blog to the coming legal brief on Quo Warranto.

This was a full week before I met you. Even the image to my blog post of Feb. 27, 2009 is a referenceto quo warranto.]

Second, you are under the mistaken impression that a case involving the civil rights laws would

be a quo warranto action. On the contrary, any case involving the civil rights laws would not be a

quo warranto action, for the plaintiff would be challenging Obamas action related to some

employment situation and indirectly attacking his title to office. Such an attack would be an

indirect attack (a collateral attack), not a quo warranto action which is a direct attack against the

title to office.

[ed. That's not what the SCOTUS said. They were analyzing who would be an "interested person"

under 3503 when they stated:

"The claim that this construction makes the statute nugatory cannot be sustained, for the

statute, as already pointed out, gives a person who has been unlawfully ousted before his

term expired a right, on proof of interest, to the issuance of the writ, and there might be

cases under the civil service law in which the relator would have an interest and

therefore a right to be heard."

The statute being discussed is the same throughout the case and the passage. When the SCOTUS says

that there might be cases under the civil service law in which the relator would have an "interest" and a

right to be heard, they are obviously discussing standing as an "interested person" under the statute

previously mentioned in the very same sentence. To suggest otherwise is bizarre.

One is only considered a "relator" if one brings a direct attack action in the name of the United States

"ex relator" followed the name of the injured party whereas a collateral attack is brought directly in thename of the injured party. A collateral attack is NOT brought ex relator. For example:

- the official name of the Newman case is -

Newman v. United States ex Rel. Frizzell

Newman was a direct attack for removal of a usurper.

- the official name of the Andrade case is -


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citation "cf.". "cf." means -

Cf. is used when the cited authority supports a proposition different from the main proposition but

sufficiently analogous to lend support. The citation's relevance will usually be clear to the reader only ifit is explained in a parenthetical.

Therefore, the DC Court of Appeals in Andrade made it clear that while the main focus of the Newmanholding was that only a person who sought the office would be an interested person, the SCOTUS in

Newman also made a contrary statement as to those effected by the civil service laws. Hence, the court

in Andrade properly made reference to the ancillary "civil service law" proposition which is differentfrom the main proposition but sufficiently analogous to lend support.

What's most important on this issue is that your post neither mentions the civil service law statement by

the SCOTUS in Newman nor does your report mention the civil service law statement as to Andrade

where it was quoted as well.]

I remind you that in my article I did mention that an indirect attack challenging Obamas action

would have a better chance of getting standing than would a quo warranto direct attack under

the DC Code in the DC District Court.

[ed. You never once discussed the "civil service law" statement in Newman. You never once discussedthe "civil service law" statement from Andrade. Both Newman and Andrade quote the civil service law

caveat to the main proposition, but you never quoted it or discussed it.]

As I explained in my article, the latter presents procedural and constitutional roadblocks which

most probably cannot be overcome. In my article, I explain how the quo warranto DC Code

cannot for constitutional reasons be used to remove a putative sitting President. In your three-

part series brief you state that the DC Code used in the DC District Court is the only way to

remove such a person. This is the biggest difference between us. I would have thought that you

would have addressed this point in your response to my article rather than the other tangential

issues.

[ed. The point is addressed in my three part legal brief and the link was provided as I explained.Readers of this blog know that I have addressed the issue you raise in numerous comments and I have

done so comprehensively. You are coming rather late to my blog with your arguments. I have seen it all

before and I do not find it persuasive at all. Furthermore, you failed to cite to my previous work datingback to March and you provided no link thereto.]

I will also inform you that the reason for my writing my quo warranto article is that you attacked

me and the Kerchner case, publicly stating that we will fail in the courts, and criticized me for

filing an exotic case rather than a quo warranto case under the DC code in the DC District

Court. I do not know what could possibly be your motivation for attacking my work. I do not

understand why you would attempt to undermine the efforts of others who are earnestly working

to bring the Obama eligibility issue to justice.

Mario Apuzzo, Esq.

[ed. My motivation as a legal blogger is to tell the legal truth, not to undermine your case. But if your

case is undermined by the truth that is not my problem. As to your criticism of my work, I am more

than confident the record supports that you are mistaken in your approach.


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Now, I've given you the chance to respond and I have printed your response in full. Please do not

bother responding again unless you are willing to correct yourself on the obvious mistake you've made

in interpreting the Newman and Andrade holdings. The stakes are much too high to grant any respect at

all to your obviously mistaken analysis.]


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QUO W ARRANTO LEGAL BRIEF: par t 1

INTRODUCTION:

Chapter 35 16-3501 Persons a gainst whom issued; civil action.

A quo warranto may be issued from the United States District Court for the District ofColumbia in the name of the United States against a person who within the District ofColumbia usurps, intrudes into, or unlawfully holds or exercises, a franchise conferred by theUnited States or a public office of the United States, civil or military. The proceedings shall bedeemed a civil action.

The federal statute for quo warranto was tailor made by the legislature to challenge anyperson occupying anypublic office of the United States under questionable title thereto.

This legal brief considers all relevant issues pertaining to the proper legal use of theextraordinary writ ofquo warranto to determine Presidential eligibility. The brief will be sent

via regular and certified mail to Attorney General Eric Holder as well as to the US Attorney forthe District of Columbia, Mr. Jeffrey Taylor, along with an open letter requesting their directattention to the issues contained herein.

Please note from the start that onlyone of these officials need bring the action in quowarranto. The applicable statute vestsboth officials with the same mutually exclusiveauthority to do so. The statute requires either/or, not both. And the statute also provides aseparate mechanism by which their official consent is not necessary to an action in quowarranto where the third person petitioning for the writ is also an interested person.

Regardless, I fear justice will never prevail on this issue. By Justice I mean that the relevant

issues will probably never be decided on the merits by any court. Yet, I believe every mancharged with the duty to uphold the law must be given his rightful chance to follow and beguided by the rule of law. And until every effort is made to most effectively bring an action inquo warranto, I personally cant be satisfied Ive done everything in my power to protect theConstitution and the Republic. Thanks to my readers for pointing this out. (Also see myapology to SCOTUS (http://tinyurl.com/9eomrw) for previous inflammatory comments alongwith removal of noted image.)

Since an action in q u o w a r r a n to is unque stionably the cor rect legal device tochallenge the eligibility of any public office holder and since q u o w a r r a n to hasnot been pr operly set in mo tion or explained to the pu blic, this brief will attempt

to educate the public and the proper officials as to the need to resolve the ObamaPOTUS eligibility issue in a single quo war ranto hear ing rather than subject thenation to a floodgate of litigation from plaintiffs with proper standing to bringcollateral attacks challenging, on the basis of POTUS ineligibility, any num ber o fpotential order s and actions to be issued by the Obama adm inistration.

Additionally, having studied controlling quo warranto cases, I have come to the conclusionthat military plaintiffs probably do not have any special standing to institute an action for quo


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warranto which differs from the standing of the general public. Please consider that thisstatement is not based on emotion but on the following;

1) the controlling statute

2) the seminal US Supreme Court decision

3) other relevant SCOTUS and federal cases

When these are examined together, it appears no special standing exists for military personnelto institute actions in quo warranto under the statute.

However, there is a civilian subset of third persons who do have a viable claim toquowarranto standing to challenge Presidential eligibility in a direct legal attack on Obamas titleto office. And so long as this civilian subset exists, theres no good reason to subject ourmilitary to possible court martial by recklessly exposing them to UCMJ Article 88 violations(http://tinyurl.com/297kut) as well as numerous other statutes which could potentially endtheir careers or land them in jail.

That military personnel are being exposed to court martial via contemptuous language andfalse headlines (ie, news report which erroneously stated an officer had defied a Presidentialorder) is one of the strongest public policy reasons why Attorney General Holder and/or USAttorney Taylor should be convinced to step in on their own motion, which is theirunquestionable right by statute, to request a straight forward quo warranto hearing on thetwo basic core issues now in dispute.

1. Does Obamas birth status having been governed by the British Nationality Actof 1948, as was admitted by Obama, prevent him from satisfying the naturalborn citizen requirement of the Constitution.

2. Should Obama be forced to present, to the District Court for the District ofColumbia, proper legal documentation to prove his place of birth by a form ofidentification regularly accepted by the Government for legal purposes.

POINT I: WHETHER A WRIT OF QUO WARRANTO CAN BE ISSUED TO REMOVE ASITTING PRESIDENT?

A. Applicability of Statute 16-3501.

16-3501 applies against any person within the District of Columbia who usurps, intrudes

into, or unlawfully holds or exercises a public office of the United States. Under the statute,the writ of quo warranto is issued by the DC District Court in the name ofthe United States.

The seminal SCOTUS case which has interpreted this statute is Newman v. United States exRel. Frizzell, 238 U.S. 537 (1915) (http://tinyurl.com/ygycrpm). The opinion is truly one ofmost rational and clearly written decisions in Supreme Court history and by itself serves as athorough education on the history of quo warranto as well as the proper statutoryinterpretation. I suggest everyone read the entire case.


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According to SCOTUS, Newman at 552, the statute applies to anypublic office:

The Revised Statutes declare that the District of Columbia shall be the seat ofgovernment, and all offices attached to the seat of government shall beexercised in the District of Columbia. The Code provides that the court shallhave jurisdiction to grant quo warranto against a person who unlawfully

holds or exercises within the District a . . . public office, civil or military. It wasprobably because of this fact that national officers might be involved that theAttorney General of the United States was given power to institute suchproceedings

the District Code, in proper cases, instituted by proper officers or persons,may be enforceable against national officers of the United States. The sectionsare therefore to be treated as general laws of the United States, not as merelocal laws of the District. Being a law of general operation, it can be reviewedon writ of error from this Court. American Co. v. Commissioners of the District,224 U. S. 491; McGowan v. Parish, 228 U. S. 317.

Years later, any doubts as to the accuracy of this interpretation were completely nullified whencurrent federal statute16-3501 revised the predecessor code to include officers of the UnitedStates and not just the District of Columbia.

Neither the statute nor any existing federal case provides an exception to the office ofPresident or any public office of the United States.

CONCLUSION: An action in Quo Warranto is the statutory legal device availableto challenge the eligibility of a sitting President.

B. Constitutionalityof using the federal quo warranto statute to remove a sitting President.

There are two sections of the Constitution which allow for the removal of the President.Article 2, Section 4 allows for impeachment (http://tinyurl.com/ydzwz55). This is the remedyfor removal of the President should he partake in high crimes or treason. A quo warrantoaction as to POTUS eligibility does not appear to be covered by impeachment.

The second section of the Constitution which provides the removal of the President is Article2, Section 1, Clause 6 (http://tinyurl.com/5kjpcj ):

In Case of the Removal of the President from Office, or of his Death,Resignation, or Inability to discharge the Powers and Duties of the said Office,

the Same shall devolve on the Vice President, and the Congress may by Lawprovide for the Case of Removal, Death, Resignation or Inability, both of thePresident and Vice President, declaring what Officer shall then act as President,and such Officer shall act accordingly, until the Disability be removed, or aPresident shall be elected.

Many have argued that only Congress can remove a sitting President and that the separationof powers enumerated in the Constitution denies the courts any legal ability to remove asitting President. But with the federal quo warranto statute, Congress hasdelegated that


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authority to the District Court of the District of Columbia by providing for the removal of thePresident (and other public officers) by quo warranto where the President is found to be ausurper to the office even if he assumed the office with a good faith belief he was eligible.

Consider the following scenario: A quo warranto action is instituted by AG Holder or, in thealternative, US Attorney Taylor on their own motion. In that case, theremust be a hearing on

the merits (this will be explained in detail below). Further assume Obama then produces aperfect long form birth certificate proving he was born in Hawaii, but then the District Courtof DC holds that since Obama was also a British subject at the time of his birth, he is not anatural born citizen and is therefore not legally occupying the office of President. Furtherassume that the DC District Courts ruling is upheld by SCOTUS.

Under this fact pattern, Obama would not have broken any laws and so he couldnt beimpeached, but he would be removed from office pertaining to the removal authority ofCongress enumerated in Article 2, Section 6, and so delegated by federal statute Chapter 35,16-3501.

CONCLUSION: Congress has provided for the removal of a sitting Presidentfound to be ineligible by enacting the federal quo warranto statute .

POINT II: W HO HAS THE AUTHORITY TO INSTITUTE AN ACTION IN QUOW ARRANTO TO CHAL LENGE THE CONSTITUTIONAL ELIGIBILITY OF ASITTING PRESIDENT?


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QUO W ARRANTO LEGAL BRIEF Part 2: TheFederal Quo W arr anto Statute Is The Only

Constitutiona l Means of Rem oving a Sitting Preside ntOther Than Impeachment

[TYPO UPDATE: The first federal Quo Warranto statute was enacted in 1878 not 1787.]

[UPDATE 9:16 AM: 03.06.09: EXHIIBITS 7-9 were added below. And they areheavyweights.]

[UPDATE: 12:30 AM: 03.06.09 EXHIBIT 6 was added below . ]

The issue of whether the President can be rem oved from office other than byimpeachm ent is the single most impor tant question presen ted with regard tochallenging the eligibility of a sitting Presiden t. This section of the brief con tainsimportant new informa tion supporting the conclusions discussed in Part 1 of thislegal brief .

Please understand that if the Constitution limits Congressional power to remove the Presidentto onlycases of impeachment then there is no Constitutional mechanism available to remove aPresident who is proved to be a usurper. And if thats true, then the federal quo warrantostatute doesnt have the power to remove a sitting President even if it was proved beyondany doubt he was ineligible.

The best dream team of lawyers you can draft may bring all the law suits they like for the bestpossible reasons in favor of the most perfectly possible plaintiffs withundeniable standing asto injury in fact and causality, but the courts do not have the authority under the

Constitution to remove a sitting President. Those law suits will fail andtheyshould fail.

In order to protect the Constitution, we m ust not s u b v e r t the separation ofpowers.

I f it c a n t b e d o n e b y q u o w a r r a n t o , t h e n i t ca n t b e d o n e a t a l l. Why?

Because Congress is the only branch authorized by the Constitution to remove the Presidentshould he be found ineligible. And the only court Congress has delegated that power to is theDistrict Court of the District of Columbia, and such delegation of power is strictly limited toactions governed by the federal quo warranto statute.

If we are going to challenge eligibility to protect the Constitution, then we certainly cannot doan end around the separation of powers. I have recognized this from the outset and thats whyI tried to have the eligibility issue litigated prior to election day and then again prior to theelectoral college meeting. After the electoral college met and cast its votes for Obama, he wentfrom being an ordinarycandidate to being the President-elect.

That metamorphosis has important Constitutional consequences which cannot be ignored.The Constitution provides that once we have a President-elect, the eligibility of that person


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can be challenged by Congress. The political question doctrine kicks in at that point and theability of any other branch to challenge for POTUS eligibility is probably nullified. And oncethe President-elect is sworn in and assumes office, the Constitutional separation of powerscertainly controls the issue.

Recall, Congress didnt challenge Obamas eligibility before he was sworn in, so those

provisions are now moot. And once a person is sworn in as President, the Constitution thenprovides specific means for removing the President from office, none of which grant suchpower to the Judicial Branch. Now please consider the following two points:

1. Nowher e in the Constitution does it give the Judicial Bran ch the power torem ove a sitting President.

Those who are currently petitioning the Judicial branch to challenge Presidential eligibility areseeking to subvert the Constitution.

They will argue Obama isnt legallyPresident and so therefore the Constitutional separation ofpowers can be ignored. Should a court ever accept that theory, you will have the recipe forcivil war, and you will be doing more damage to the nation than you can even imagine. Protestall you like, but the US Government recognizes his authority.

Furthermore, United States Courts all the way up to SCOTUS have refused to get involved, andthis was the casebefore Obama was sworn in when the Judicial Branch actuallydid have thepower to adjudicate the eligibility issue. They punted. Fact.

Now that Obama has taken the office of President and is officially recognized as President, nocourt is going to suddenly take a leap around the separation of powers by agreeing theConstitution doesnt apply to Obama as President. That will never happen.

Let that sink in because its true.

2. Nowher e in the Constitution does it say that impeachm ent is the sole mean s ofrem oving the President.

Some who support Obamas eligibility will seek to subvert the Constitution by arguing that theConstitution states that the sole remedy for removing the President is impeachment. Nowherein the Document does it say that. Those who believe it must imply or assume that is thecase. But the Constitution does not state that impeachment is the sole means of removing thePresident.

The Constitution (http://tinyurl.com/ynolyc ) does say that Congress has the sole authority toimpeach and the Senate to convict, and that the President shall be removed upon conviction,but it does not say that impeachment is the sole means of removal. You will hear people saythat it does say that in the days ahead. It is a lie.

I have uncovered a plethora of evidence within and without the Constitution which Istrongly believe proves that the framers provided Congress with the power to remove aPresident who is found to be ineligible. This makes sense because not every person who isfound to be ineligible is guilty of a crime.


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HYPOTHETICAL:

Two double agents born in the evil nation of KILLAMERICASTAN sneak achild into America over the Canadian border and later obtain false documentsindicating they are US citizens and that their child was born in the United States.The child is raised like a Manchurian Candidate and believes his parents are US

citizens and that he was born in the US. The child grows up a gifted politicianand eventually becomes President. After being sworn in, the truth is discoveredby US Intelligence and proved beyond any doubt. The President then refuses toleave office since he didnt do anything wrong and had no knowledge of the plot.

W h a t h a p pe n s ?

Well, the President has done nothing to be impeached. Hes not guilty of any high crimes ormisdemeanors, bribery or treason. Did the framers leave us naked in such a situation? I dontbelieve so. We will return to this shortly.

SEPARATION OF POWERS

My respect for the separation of powers in our Constitution is the core reason I was so willingto drop the eligibility fight once the Electoral College met. I understand and respect theConstitution. And I would never further damage it by aiding a new Constitutional crisis whichmight help to bring our Republic down.

W e m u s t r e s p e ct t h e s e p a r a t io n o f p o w e r s o r w e w ill lo s e t h e Co n s t i tu t i o n a n d

t h e R e p u b l ic f o r w h i c h it s t a n d s .

The separation of powers argument will be the proper undoing of every single POTUSeligibility law suit running through the courts at this moment in time. They will all fail. Andthey should, because for any of them to prevail, the separation of powers would be violated.

Even in law suits where federal courts have been petitioned to request Congress investigate -by way of mandamus Obamas eligibility (as opposed to seeking removal), the courts willdismiss on the basis of separation of powers limitations and/or subject matter jurisdiction,even if the plaintiffs were found to have passed the difficult standing tests (and thats notgoing to happen either).

While I respect the litigants and the efforts they have made, I take issue with some of thetactics employed and Im also not that impressed with many of the pleadings. I hope that, bypublishing this brief, I will correct some of the previous errors and provide the public at large

with the best possible education so that proper pressure can be applied to authorizedGovernment officials. Knowledge is power. I seek to empower you.

Should those officials not respond, I also hope the following will act as a template for anyattorneys who may wish to pursue a quo warranto petition. This should save time andresources.

I have reached out to some of the attorneys who impressed me, but none have brought a lawsuit which can succeed in light of the separation of powers enumerated in the Constitution.


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IS THERE A CONSTITUTIONAL SOLUTION?

It appears there is a Constitutionally viable method available for the eligibility issue to belitigated which does not violate the separation of powers enumerated in the Constitution. Istrongly believe the federal q u o w a r r a n to statute provides the onlyConstitutionally viablemeans by which a sitting President can be removed from office if found to be a usurper,

whether such usurpation is intentional or unintentional. Full details and analysis below, butfirst lets discuss the following:

REVIEW OF CURRENT QUO WARR ANTO ACTIVITY

As far as I can tell, only one attorney has filed for an actual quo warranto claim at this point intime. Unfortunately, that attempt will fail as it was brought on behalf of private plaintiffs. Asyou will see below, any action in quo warranto must be brought on behalf of the United States.The attorney needed to first petition the Attorney General or US Attorney in DC to institute anaction in quo warranto. Additionally, that same action was brought in the wrong venue.According to the statute, a quo warranto action to challenge the eligibility of a United Statesofficer whether elected or appointed can onlybe brought in the District Court of theDistrict of Columbia.

Another attorney has sent a pre-litigation letter to Attorney General Holder. But the statuterequires a verified petition be forwarded to the Attorney Generaland/or the US Attorneyrequesting consent plaintiffs be allowed to institute a quo warranto action in the name of theUnited States. No such petition has been filed.

This letter sent to AG Holder insists he recuse himself due to an alleged conflict of interestsince the Attorney Generals office is the designated defender of the President. But that is onlytrue as to the Presidents official actions. A Quo warranto dispute is not related to officialactivity of the Presidents office. It relates to whether the President is eligible to hold the

office and that is not an official action undertaken by the President. The statute defines quowarranto as a civil action. I believe the President would have to hire private counsel to defendhim.

So, theres probably no legal conflict of interest requiring Eric Holder to recuse himself. Anyconflict of interest which exists is probably limited to the personal gratitude AG Holder mayhave for Obama since he appointed him. But thatsnot the type of conflict which requiresrecusal. For example, a Supreme Court Justice does not have to recuse himself in a disputeinvolving the President who appointed him.

Its not fair to suggest AG holder wont do his job because he owes personal allegiance to

Obama. I believe in fighting a fair fight even if others fight unfairly against me. Its only fairthat the man be given the chance to do the right thing. Furthermore, no verified petition haseven been forwarded to the Attorney Generals office.

The federal quo warranto statute provides that the United States attorney may institute anaction in quo warranto on his own motion. The US Attorney for the District of Columbia isJeffrey Taylor (sic) (http://www.justice.gov/usao/dc/). He was appointed to that position in2006 by the Bush administration and certainly has no conflict of interest. I am not aware of


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anybody who has contacted US Attorney Taylor in this regard. It will only take one of thoseofficials to bring the action, not both.

W HY EVERY EFFORT SHOULD BE MADE BY THE PUBLIC TO PRESSURE AGHOLDER AND US ATTORNEY TAYLOR TO INSTITUTE ON THEIR OW NMOTION AN ACTION IN QUO WA RRANTO ON B EHALF OF THE UNITED

STATES W ITHOUT EX RELATOR PLAINTIFFS

While arguments about whether the military make the best plaintiffs have been raging, thesimple truth is that a quo warranto case with the best chance of success ought to be initiatedwith no private plaintiffs at all. The federal quo warranto statute shows a preference for casesbrought on behalf of the United States by the Attorney General or the US Attorney. And untilrespectful pressure is applied to those officials, the nation is deprived of the most perfectavenue to justice. Until this course of action is exhausted, I pray that all private attorneysbrieflydelay requesting consent from these officials while an effort is made to persuade themthat its in the best interests of the nation for them to proceed on their own motion.

This is not a private issue. The controversy is raging. Nobody can deny that. AGHolder an d US Attorney Taylor need to consider that the citizens, the military,the Government a s w e ll a s O b a m a h i m s e lf will all be better off once cleartitle to the office is estab lished.

16-3502. Parties who may institute; ex rel. pr oceedings.

The Attorney General of the United States or the United States attorney mayinstitute a proceeding pursuant to this subchapter on his own motion or on therelation of a third person. The writ may not be issued on the relation of a thirdperson except by leave of the court, to be applied for by the relator, by a petitionduly verified setting forth the grounds of the application

In Newman v. United States ex Rel. Frizzell, 238 U.S. 537 at 546 (1915)(http://tinyurl.com/ygycrpm), the Supreme Court interpreted the role of the AG and USattorney as follows:

The District Code still treats usurpation of office as a public wrong which can becorrected only by proceeding in the name of the government itself. It permitsthose proceedings to be instituted by the Attorney General of the United Statesand by the attorney for the District of Columbia. By virtue of their position,they, at their discretion and acting under the sense of official responsibility, caninstitute such proceedings in any case they deem proper. But there are so many

reasons of public policy against permitting a public officer to be hara ssed withlitigation over his right to hold office that the Code not only does not authorize aprivate citizen, on his own motion, to attack the incumbents title, but it throwsobstacles in the way of all such private attacks. It recognizes, however, that theremight be instances in which it would be proper to allow such proceedings to beinstituted by a third person, but it provides that such third person must notonly secure the consent of the law officers of the government, but the consent ofthe Supreme Court of the District of Columbia before he can use the name of thegovernment in quo warra nto proceedings.


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The modern federal statute is virtually identical except the US attorney has been included withthe Attorney General as the two officials who mayat their discretion and acting under thesense of official responsibility institute such proceedings in any case they deem proper.

Such an action is so proper that despite which side of this argument you fall on, it should beobvious the nation would be better served by having this issue settled once and for all in open

court but not in the name of private plaintiffs who can be so easily painted as partisan.

If either official bring an action in quo warr anto upon their ow n mo tion, such anaction is brought on beh alf of the United States and n o le a v e o f t h e c o u r t i sn e c e s s a r y .

Comparatively, if a private attorney petitions these officials to allow them to bring suit in thename of the US ex relator then even if one of the two officials gives their consent, leave of thecourt must be requested and if denied, thats it. The matter is done. One could then appeal toSCOTUS, but SCOTUS is the last resort, not the first. Theres no need to disrespect the statuteand the resources of the court by going straight to SCOTUS. Thats justsensational, not wise.

Another interesting point to consider is that while the predecessor statute only named theDistrict Attorney for the District of Columbia the modern statute which controls quowarranto as to national officers mentions both the Attorney General and the United Statesattorney. As written, its possible any US attorney might be eligible to institute such a quowarranto action. Notice that in the statute attorney isnt capitalized in either 16-3502 or16-3503 when the United States attorney is mentioned. Of course, US Attorney Taylor iscertainly authorized, but this needs further research.

Assuming AG Holder or US Attorney Taylor were to institute an action in quo warranto, theDistrict Court might attempt to avoid a hearing on the merits (which every court of the nationseems hell bent upon avoiding) by claiming that the federal quo warranto statute if applied

to the President would violate the Constitutional separation of powers and that they are ofthe opinion that the Constitution only allows removal of the President for impeachment.

If that argument can be overcome then, due to the obvious public policy benefits inherent inestablishing that the President has a clear title to the office of President, there should be noobstacle preventing at least one of the two officials charged with the authority to act in thename of the United States to bring this issue to the court for the benefit of the nation.

THE CONSTITUTION HAS PROVIDED CONGRESS W ITH THE AUTHORITY TOREMOVE THE PR ESIDENT FROM OFFICE IN CASES OTHER THANIMPEACHMENT.

Evidence of this power is directly written into the Constitution. The most obvious section isArticle 2, Section 1, Clause 6 which states in full:

In Case of the Removal of the President from Office, or of his Death, Resignation,or Inability to discharge the Powers and Duties of the said Office, the Same shalldevolve on the Vice President, and the Congress may by Law provide for theCase of Removal, Death, Resignation or Inability, both of the President and VicePresident, declaring what Officer shall then act as President, and such Officer


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shall act accordingly, until the Disability be removed, or a President shall beelected.

Unlike in Wikipedia (http://tinyurl.com/yfpf4ez ), the actual text (http://tinyurl.com/ynolyc)of the Constitution does not apply the heading Vacancy and Disability. The heading ismisleading. A comprehensive investigation appears to reveal that the framers intended Article

2, Section 1, Clause 6 as it applied to the POTUS for two distinct purposes.

- the first purpose is the commonly accepted purpose: to provide for a vacancy in the office ofPresident

- the second purpose was to provide Congress a means to remove the President should itbecome clear that he is not entitled to hold the office, for example a classic quo warrantosituation or if the President becomes disabled.

I realize this is an entirely new theory of Constitutional law and that the common acceptedinterpretation is that the President can only be removed by impeachment. As stated above,the Constitution does not state anywhere in its text that impeachment is the onlymeans bywhich the President can be removed. And since the concept of demanding public officialsprove their legal warrant to hold office via the extraordinary writ of quo warranto goes back tofeudal times, nobody can deny the framers were aware that usurpation was a sad fact of life.

How likely is it that the Framers failed to provide for usurpation of public office in theConstitution? Knowing their collective wisdom, not very likely. So please suspend judgmentuntil the full weight of the evidence is revealed.

EVIDENCE THE FRAMERS INTENDED TO PROVIDE FOR REMOV AL OF THEPRESIDENT BY QUO WARRANTO SUCH POW ER VESTED IN CONGRESS

If my theory is correct, then we should be looking for evidence that the Framers considered in their deliberations upon Article 2, Section 1, Clause 6 that impeachment was not the solemeans of ousting a sitting President. The following are my list of exhibits.

EXHIBIT 1: A perfect on point referen ce from James Ma disonspersonal notes are included in the Records Of the Federal Convention(http://tinyurl.com/y9mnak7):

In Case of his Impeachment, (Dismission) Removal, Death, Resignation orDisability to discharge the Powers and Duties of his (Department) Office; thePresident of the Senate shall exercise those Powers and Duties, until another

President of the United States be chosen, or until the President impeached ordisabled be acquitted, or his Disability be removed.

[2:186; Madison, 6 Aug.]

James Madisons notes here pertain directlyto Clause 6 and they list - separated by commas all the various possibilities whereby the Presidents office might be vacated. Clearly, theyconsidered that the Presidency might be vacated by a Case of Impeachment as well as(Dismission) Removal, Death, Resignation, or Disability.


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Impeachm ent and Dismission are listed as mutually exclusive devices to removethe President.

EXHIBIT 2: Clause 6 directly follows the infam ous Ar ticle 2, Section 1,Clause 5 wh erein the exact qua lifications for the office of President arelisted.

Qualifications for office are directly followed by a clause empowering removal from office.

EXHIBIT 3: The text of Article 2, Section 1, Clause 6 w ould beredun dant unless the dual purposes listed above we re intended.

Examine the first part of Clause 6 alone:

In Case of the Removal of the President from Office, or of his Death, Resignation,or Inability to discharge the Powers and Duties of the said Office, the Same shalldevolve on the Vice President,

If the sole intention of the framers was that Clause 6 only applied as to the POTUS withregard to replacing a vacancy then there was no need to say anymore about it as to thePresident. The first line indicates that the powers devolve upon the Vice President when avacancy occurs. So whats the need for the next line?

and the Congress may by Law provide for the Case of Removal, Death,Resignation or Inability, both of the President and Vice President,

In this line we see that the Framers, who in the first line already provided directly forsuccession as to the President, have given Congress in the 2nd line the authority to byLaw provide for the Case of Removal of the President and Vice President.

Now, lets examine the third line:

declaring what Officer shall then act as President, and such Officer shall actaccordingly, until the Disability be removed, or a President shall be elected.

Without the bias of pre-conceived notions, a balanced reading of Clause 6 indicates that theFramers intended to give Congress the authority to remove the President as long as themanner in which they do that is provided for by law in line 2. Then in line 3, the Framerscharged Congress to provide for a line of succession should the Presidency be vacated as wellas the Vice Presidency, and so on.

If there was only one purpose, why mention the vacancy of the Presidency twice?

EXHIBIT 4: The 25th Amendm ent. (http://tinyurl.com/2tzhlp)

One of the arguments against my theory is the misconception that the 25th Amendmentsuperseded everypurpose of Clause 6. I dont believe thats correct. The 25th amendmentwas born directly due to the clunky ambiguities contained in Article 2 Section 1 Clause 6. Andthe 25th Amendment response to that wording directly attests that the Congressional power


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vested by Clause 6 was not just concerned with providing for a vacancy since the 25thAmendment also provides specific means by which Congress can force the President to leaveoffice, temporarily and/or permanently:

Whenever the Vice President and a majority of either the principal officers of theexecutive departments or of such other body as Congress may by law provide,

transmit to the President pro tempore of the Senate and the Speaker of the Houseof Representatives their written declaration that the President is unable todischarge the powers and duties of his office, the Vice President shallimmediately assume the powers and duties of the office as Acting President.

If Clause 6 only grants Congress the power of providing for a vacancy, then why does the 25thAmendment provide Congress the ability to by law provide (the same language as used inClause 6 as to removal) some other body the right to declare the President unable todischarge his duties?

Clearly, if the 25th Amendment was simply a clarification of Clause 6, then Clause 6 must havevested Congress with more power than just the power to provide for succession since the 25thAmendment allows Congress to replace the President with the Vice President.

Whether the President was found undeniably ineligible to be President due to his not being anatural born citizen would make him unable to discharge his duties is certainly debatable,but I dont think the 25th Amendment pertains to that fact pattern since Clause 6 andMadisons notes both list Removal and inability to discharge the Power and Duties asmutually exclusive. It would be disingenuous to argue that the 25th Amendment directlypertains to a quo warranto situation.

However, its obvious that if the 25th Amendment is a response to the ambiguity of Clause 6,then Clause 6 wasnt just intended to fulfill vacancies. If Congress was given power in Clause 6

(as codified by the 25th Amendment) to actually replace the President upon his inability todischarge duties then Congress also had the power to remove the President for being foundineligible.

The 25th Amendment is quite an amazing grant of power when you consider the President canbe forced to step down if Congress believes hes lost his mind. Thats certainly a much greaterpower than just being authorized to decide how to fill the vacancy if he loses his mind.

More evidence to support my theory is found in what the 25th Amendmentdoesnt discuss.

The 25th Amendm ent doesnt discuss death or r esignation.

Why?

Because there is nothing to discuss. When the President dies or resigns has nothing to do withCongress. But when it came to deciding whether the President is able to discharge his duties,Congress is authorized to exercise removal power by the 25th Amendment and such powermust be derived directly from Article 2 Section 1 Clause 6.


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Compare the wording of Clause 17 with 16-3501 of the federal quo warranto statute:

A quo warranto may be issued from the United States District Court for theDistrict of Columbia in the name of the United States against a person who withinthe District of Columbia usurps, intrudes into, or unlawfully holds or exercises, afranchise conferred by the United States or a public office of the United States,

civil or military. The proceedings shall be deemed a civil action.

When you read the two back to back, it appears Constitutional that the office of President being in the District of Columbia should be governed by the federal quo warranto statute.

EXHIBIT 7: Analogous Congressional preceden t the voiding of Mr.Shields and Mr. Galatins US Sena te elections a f t e r they were foundto be usurpe rs wh o did not m eet the qualifications for officeenum erated in the Constitution.

While the Constitution doesnt provide for impeachment of Senators or Representatives, itdoes provide for their expulsion by a vote of two thirds of all members of each bodyrespectively. Article 1 Section 5 (http://tinyurl.com/yfe94d4) states:

Each House may determine the rules of its proceedings, punish its members fordisorderly behavior, and, with the concurrence of two thirds, expel a member.

Like impeachment for a President, expulsion is sometimes erroneously assumed to be the onlyConstitutional process by which a Senator can be removed from office. But thats notaccurate. The Senate can remove a sitting Senator should he be found to be a usurper, just asthey can remove a President found to be a usurper and they have done so at least twice that Iam aware of.

At Senate.gov (http://tinyurl.com/yc3e2w), all fifteen of the Senators who have been removedby the Constitutionally enumerated process of expulsion are listed. Please notice that the listdoesnt include Senator Shields who was removed by Congress in 1849(http://tinyurl.com/ycu4fka ).

Senator Shields was removed by the Senate after it was discovered that he was an alien bybirth, and that when he was elected in January 1849 from the State of Illinois, to serve as aUS Senator he had not been a US citizen for the requisite nine years. However, he was notremoved pursuant to the Article 1 section 5 expulsion power.

Instead, the Senate held that his election was entirely void. Senator Shields even offered his

resignation to the Senate, but his resignation was not accepted by the Senate who held thatsince Shields was never qualified, he was never a Senator even though he had been sworn inand had been serving as a Senator until March 1849 when his election was completely madevoid and the seat declared vacant.

Since Shields it was discovered after Shields had occupied the Senate seat that he didnt meet the Constitutional qualifications for the o ffice of Senate, theSenate held that he was never an actual Senator and so his rem oval is notrecorde d as an expulsion.


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Nowhere in the Constitution does it explicitly state that the Senate may remove a Senator bymaking a determination that his election was void and that he was a usurper. But thatsexactly what happened. If the power to remove a usurper wasnt Constitutionally allowed, theSenate couldnt have voided Mr. Shields election and vacated his Senate seat. But they did.

The Congressional Globe account of the Shields (http://tinyurl.com/ycu4fka ) removal is

preceded by an account of a similar precedent regarding a Mr. Albert Galatin. Mr. Galatin waselected to the US Senate from Pennsylvania in 1793 and it was later found that he had neverbecome naturalized. The Senate again voided his election stating that the election wasnt justvoidable, but that since there was no way to cure the qualification defect the election wascompletely void it didnt happen.

Its important to note that the first quo warranto statue enacted by Congress didnt take effectuntil 1787 [typo - that should read "1878"] so in 1793 and 1849 the Senate chose to void theelections of the two usurpers.

So here we have precedent for Congressional authority to remove Senators other than byexpulsion. Usurpation of office resulted in elections being voided and the Senate record donot even record usurpers as having been members of the Senate. If Congress can remove ausurper to the Senate without expelling him, this provides evidence that Congress can removea usurper to the Presidency without impeaching him.

It appears there is no possible separation of powers issue to confront. If a person occupyingthe Presidency is found to be a usurper, then his Presidency is a fiction to be voided in historyand his name removed from the record books. A usurper isnt allowed to have been said to bePresident. His occupation is a fiction.

In the Galatin case the Senate made clear that since there was no possible way the failure toqualify could be cured, then the election was a total fiction and is void, not voidable, but void,

as if it never happened.

[Special thanks to reader Kamira, who discovered the Galatin information in theCongressional Globe.]

EXHIBIT 8: USC CODE: TITLE 3 THE PRESIDENT Chapter 1. Preside ntialElections and Vacancies

Please review19:

Va can cy i n o f f ice s o f bo t h p r es i den t a n d v i ce p res i den t ; o f f ice r s e li g i b le t o ac t

19. (a) (1) If, by reason of death, resignation, removal from office, inability, orfailure to qualify, there is neither a President nor Vice President to discharge thepowers and duties of the office of President, then the Speaker of the House ofRepresentatives shall, upon his resignation as Speaker and as Representative inCongress, act a s President.


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Please take notice that failure to qualify is listed as one of the means by which a vacancy inthe office of President may occur. And recall, as to Mr. Shields whose election to the Senatewas voided, the Senate declared his seat vacant.

EXHIBIT 9: COMMON SENSE

Out of all the exhibits listed above, I think its most important to keep in mind the most simpleevidence common sense. Does anybody really believe our Constitution prevents the removalof a person who is found to be a usurper to the office of President?

The answer must be no.

CONCLUSION: T h e f ed e r a l q u o w a r r a n t o s t a t u t e p r o v i d e s t h e o n l y Co n s t i tu t i o n a lm e a n s b y w h i ch a s it t in g P r e s id e n t m a y b e r em o v e d b y t h e J u d i ci a l b r a n c h .

(I must thank a special reader for making me aware of the Clause 17 hook.)


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QUO W ARRANTO LEGAL BR IEF: Par t 3 STANDING-TRIAL BY JURY - HISTORY OF STATUTE

SEPARATION OF POWERS Cont.

[CORRECTIONS struck out below. 03.11.09]

The following points contain the most important issues as to federal quo warranto actionsbrought under the District of Columbia Code.

1. SCOTUS IS THE W RONG VENUE TO INITIATE AN ACTION IN QUOW ARRANTO BECAUS E DOING SO WOULD DEPRIVE THE PUBLIC OF A JURYTRIAL ON THE ISSUE OF WHETHER OBAMA W AS BORN IN HAWA II.

The District of Columbia Code, Title 16, Chapter 35 (Quo Warranto) Subchapter III states:

16-3544. Pleadin g; jury trial.

In a quo warranto proceeding, the defendant may demur, plead specially, orplead not guilty as the general issue, and the United States or the District ofColumbia, as the case may be, may reply as in other actions of a civil character.I s s u e s o f f a c t s h a l l b e t r i e d b y a j u r y i f e it h e r p a r t y r e q u e s t s i t . Otherwise they shall be determined by the court. (Emphasis added.)

The quo warranto statute allows a jury trial on issues of fact. Whether Obama was born inHawaii is an issue of fact. Whoever institutes a proceeding pursuant to the statute may

request a jury trial and one must be granted. The judge could not refuse.

But if the case is brou ght to SCOTUS before its brou ght to the District Court ofthe District of Columbia, and if SCOTUS wer e to accept the case, youre nevergoing to have a jury trial.

Any quo warranto proceeding should go before the DC District Court as follows:

a. a determination would have to be made, as a matter of fact, as to whether Obama was bornin the US/Hawaii.

b. if the jurys verdict is that he wasnt born in Hawaii, then the legal question is easy: hes nota natural born citizen. please take note that the issue wouldnt be whether the online COLB isgenuine, the issue is whether Obama was born in Hawaii and any COLB or other documentwould only be considered as a piece of evidence for the jury to consider.

c. if the jurys verdict is that Obama was born in Hawaii, then the next issue is a more complexjudicial question. The District Court would have to make a legal determination as to themeaning of NATURAL BORN CITIZEN.


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Congress has absolutely no power to interpret clauses of the Constitution. That would be aviolation of the separation of powers. Only the judicial branch could make such adetermination. Congress properly assigned the issue to the District Court.

While Congress has the power to remove the President under the Constitution, they dont havethe power to interpret the Constitution. The judicial branch must do that.

As to issues of fact, i.e.:

- how long a person is a citizen of the US

- how old a person is

- where a person is born

these qualifications for office are matters offact which Congress properly recognized werebest left to a trier of fact and therefore a trial by jury is statutorily allowed.

The issue of who is a natural born citizen under Article 2 Section 1 Clause 5 is an issue oflegal interpretation outside the Constitutional authority of Congress.

Only the judicial branch can interpret the laws of this nation.

Congress didnt delegate the authority to remove the Presidenttheyexercised that authority.(My previous explanation was not correct. I said they delegated their authority but that was apoor choice of words. Please forgive me.) Congressexercised their authority by allowing forthe removal of the President.

Under the statute, the DC District Court mu st follow the law ena cted byCongress. Congress has deem ed that if an action is instituted properly, the courtthen conducts a trial as to all relevant facts. After the facts are determ ined, thecourt is empow ered u nder the Constitution, to interpret the law in light of thefacts.

JURY TRIAL. Think about that.

SCOTUS is not a trier of fact and so quo warranto MUST be brought before the District Courtfor the District of Columbia EXACTLY as the statute requires.

GOD FORBID SCOTUS WOULD EVER JUMP IN AND TRY TO WR ANGLE THIS

CASE FROM A DISTRICT COURT JURY.

2. STANDING UNDER THE DISTRICT OF COLUMBIA CODE TO INSTITUTE AFEDERAL QUO WARRA NTO ACTION

a. STANDING OF GOVERNMENT OFFICIALS


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The DC code allows three different levels of standing to institute a quo warranto action. Asto private plaintiffs, SCOTUS noted in Newman at 538 that Congress has placedobstacles in the way. But as to the Attorney General or the United States attorney, whoact in the name of the United States, the statute makes it very simple for an action to beinstituted. It says:

The Attorney General of the United States or the United States attorney mayinstitute a proceeding pursuant to this subchapter on his own motion

SCOTUS in Newman at 546 has interpreted the statute to give wide discretion to theseofficials:

By virtue of their position, they, at their discretion and acting under the sense ofofficial responsibility, can institute such proceedings in any case they deemproper.

IN ANY CASE THEY DEEM PROPER.

- There is no qualification that there be a certain amount of evidence one way or the other.

- There is no qualification that the officials must consider public opinion or political partyaffiliation.

- There is no standing to prove. If your title is US Attorney General or United Statesattorney, you have standing.

- There is no need to consult with Congress because, as SCOTUS noted in their opinion,Congress has already acted on the issue by enacting the quo warranto statute.

All that is required is that the official deems a quo warranto statute proper. His discretionis unassailable judicially.

W HY SHOULD THESE OFFICIALS DEEM QUO W ARRANTO PROPER?

T h e s h o r t a n s w e r i s t h a t t h e a c t io n i s p r o p e r t o s e t t le t i tl e t o t h e o f fi ce o f

P r e s id e n t f o r t h e g o o d o f t h e n a t i o n .

Even if both officials are convinced Obama is eligible, its still proper for them institute a quowarranto proceeding because the evidence emerging now is that, by leaving the controversy asis, a floodgate of litigation will ensue. And like the waters over New Orleans levees, this

floodgate has the ability to wreak havoc on our nation.

- Active military officers have openly stated that the so called Commander In Chief is animposter and a usurper. These men have consented to be plaintiffs in eligibility law suits.Should this trend spread, it has the power to divide our forces and nation.

- Under the holding inANDRADE v. LAUER, 729 F.2d 1475, 234 U.S.App.D.C. 384 (1984), theCourt of Appeals for the District of Columbia has held that the defacto officers doctrine doesnot prohibit collateral attacks of official actions based upon a public officers lack of


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eligibility. These are not quo warranto suits to remove the official, they are civil suits tochallenge a specific action of that official.

In the Andrade case, the plaintiffs were Government employees who lost their jobs toreduction in force ordinances which cut whole departments from the Government budget.The plaintiffs sued alleging those who did the cutting were not Constitutionally qualified to

make such decisions in that their appointments violated the appointments clause of the USConstitution.

The DC District Court held that the plaintiffs had no standing other than to bring a directattack in quo warranto to remove the alleged usurper. But the DC Court of Appeals reversedand said the plaintiffs, who had suffered real injuries, could bring such an action on a case bycase basis if they could prove their injury in fact (being fired) was caused by a Governmentofficial who was not eligible to serve.

They opened the door to a floodgate of litigation by an incredibly large field of possibleplaintiffs who might challenge every single official action of the Obama administration on thebasis that he isnt eligible.

- Furthermore, there is a tenet of Government that requires there be a certainty to the officialactions taken in the name of the United States. No certainty is possible when millions of UScitizens, including active military, are concerned that Obamas credentials were not verified inthe same way all citizens must verify their identity for the most simple things in life likegetting a drivers license or passport. It smacks of imperial coronation when a Government of,by and for the people are not entitled to know that the commander in chief must submit to thesame levels of identity proof as the citizens.

Regardless of whether one believes Obamas online COLB is real, no citizen can tell theGovernment to check a web site for their birth certificate rather than bring it in to the DMV or

send it to the federal Government for a passport. You have to actually mail your BC in to themif you dont bring it in person.

I recognize that the Constitution does not require a birth certificate as a qualification, butthats not the issue anymore.

T h e is s u e is w h e t h e r t h e A t t o r n e y G en e r a l a n d / o r a U n i t e d S t a t e s a t t or n e y

d e e m s it p r o p e r f o r Ob a m a t o p r o v i d e t h e sa m e p r o o f o f id e n t i t y a s o r d i n a r y

c it i ze n s i n o r d e r t o a v o i d FO R E S E E A B L E co m p l ic a t io n s w h i c h a r e d e s t i n e d t o

r o t p u b l ic f a it h .

We need to put aside whatever prejudices we have as to the eligibility and plead for now forthe issue to be resolved as opposed to pleading what we believe the outcome of any such actionshould be.

I have stated over and again on numerous radio programs that I do not believe any privateplaintiff has standing to demand to see Obamas records of birth or any other personalrecords. These plaintiffs are appealing to emotions and not rational legal considerations.Obama should not bend to the will of those who have no legal authority to command him. I


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said this over and over and over again. But I was grouped in with these other attorneys whosetheories I take great issue with.

We are governed by laws. And there is no law which allows a private person to demand to seeObamas birth certificate or college records. It may seem like a good idea, but last time Ichecked the Constitution, neither are required to be President.

H o w e v e r , th e U n i t e d S t a t e s a t t o r n e y , t h e A t t o r n e y G e n e r a l a n d t h e D i st r i ct

Cou r t f o r t h e D is t r i c t o f Co l um bi a do h a v e a u t h o rit y t o co m m a n d O b a m a t op r o v e h is cr e d e n t i a l s . A n d t h e y o u g h t t o e x er c is e t h a t a u t h o r i t y f o r t h e g o o d o f

t h e n a t i o n , e s p e c ia l ly o u r m i li t a r y .

I fail to see any difficulty in establishing non-partisan compliance with the SCOTUS holding inNewman (http://tinyurl.com/ygycrpm) that these officials may bring a quo warranto if theysimply deem it proper to do so.

That decision is not subject to review.

There is a public policy behind this which makes a lot of sense. Obama ought to encouragethese officials to institute an action in quo warranto for the good of the nation and for the goodof his own legacy.

IMPORTANT:

T h e b e s t p o s s ib le c a n d i d a t e s I ca n t h i n k o f w h o s h o u l d r e q u e s t t h e U S A t t o r n e y

a n d / o r t h e A t t o r n e y G e n e r a l t o b r in g a n a c t io n i n q u o w a r r a n t o o n t h e ir o w n

m o t io n a r e R e t i r ed M ilit a r y o f fic er s w h o u n d e r s t a n d t h e a b s o lu t e n e ed f o r t h e

P r e s id e n t s t it l e t o o f fi ce n o t t o b e e n c u m b e r e d b y d o u b t . R e t i r e d m i li t a r y c a n

b a n d t o g e t h e r t o r e q u e s t t h a t t h e s e Go v e r n m e n t a t t o r n e y s d e e m it p r o p e r t o

p r o t e c t t h e a c t iv e m i li t a r y f r o m a l l o f t h e s w i r li n g d a n g e r s t h e i r in v o l v e m e n t i n

a p o l it i ca l a ct i o n a s t o P OT U S e li g ib i li t y w o u l d b r i n g . S u c h a r e q u e s t s h o w s n o

d i s r e s p e ct , b u t r a t h e r r e c o g n i z e s t h e a c t u a l r is k n o w b e i n g t a k e n b y s o ld i e r s

g e t t in g i n v o l v e d w i th v a r io u s l a w s u i t s. T h e r e t ir e d m i lit a r y w o u l d n o t b e

m a k i n g a c a s e fo r o r a g a i n s t O b a m a s e lig i b ili ty , b u t r a t h e r t h e y w o u l d s im p l y

b e a s k i n g t h a t t h e i s su e b e r e s o lv e d o n e w a y o r t h e o t h e r u n d e r t h e a p p l ic a b le

s t a t u t e . A g a i n , k e e p in m in d t h a t t h e s ta t u t e d o e s n t r e q u ir e a n y t h i n g m o r e

t h a n t h a t t h e U S a t t o r n e y o r t h e A t t o r n e y Ge n e r a l d e e m it p r o p e r .

Please dont confuse this with asking these retired military to be plaintiffs. Thats not what Imsuggesting. Im suggesting that retired military officers are the best possible group who might

be able to influence the US attorney or the Attorney General in making the decision to bringan action in quo warranto on their own motion with no private plaintiffs.

Another interesting question is whether anyof the 94 United States attorneys may institutethe proceeding in quo warranto [Ed. I have reconsidered the discussion on this issue and asof 03.011.2009 struck it from the brief. 16-3502 applies exclusively to the US AttorneyGeneral and to the US Attorney for the District of Columbia. I believe that's the most accurateintention of the statute.]


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b. Standing of third persons vs interested persons.

16-3502 states:

The Attorney General of the United States or the United States attorney mayinstitute a proceeding pursuant to this subchapter on his own motion or on the

relation of a third person.

16-3503 states:

If the Attorney General or United States attorney refuses to institute a quowarranto proceeding on the request of a person interested, the interested personmay apply to the court by certified petition for leave to have the writ issued.

The terms third person an d interested person have been interpreted bySCOTUS in the Newm an (http://tinyurl.com/ygycrpm) case as follows:

The Code provides that a third person the equivalent of any person mayinstitute the proceedings only after he had secured the consent of the law officersand the court. It makes a distinction between a third person and an interestedperson, and provides that, if the Attorney General refuses to give his consent tothe latter, such interested person may secure the right to use the name of thegovernment by satisfying the Court of the District that his reasons for applyingtherefore are sufficient in law

Considering the ancient policy of the law and the restrictions imposed by thelanguage of the Code, it is evident that, in passing this statute, Congress used thewords third person in the sense of any person, and the phrase personinterested in the sense in which it so often occurs in the lawThe interest whichwill justify such a proceeding by a private individual must be more than that ofanother taxpayer. It must be an interest in the office itself, and must be peculiarto the applicantThe language of the Code, supported by the history and policyof the law, sustains the proposition that one who has no interest except thatwhich is common to every other member of the public is not entitled to use thename of the government in quo warranto proceedings.

For if the allegations in such a suit by a private citizen set out any cause of actionat a ll, it shows on its face that it was a cause of action belonging to the wholebody of the public, and which therefore should be prosecuted by the publicrepresentative.

The rule is the same regardless whether the office is elective or appointive. For inneither case is there any intent to permit the public office to be the subject matterof private litigation at the instance of one who has no interest therein whichdiffers from that of every other member of the public. The claim that thisconstruction makes the statute nugatory cannot be sustained, for the statute, asalready pointed out, gives a person who has been unlawfully ousted before histerm expired a right, on proof of interest, to the issuance of the writ, and there


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might be cases under the civil service law in which the relator would have aninterest and therefore a r ight to be heard.

In Newman (http://tinyurl.com/ygycrpm), there was a jury trial and the jury held that thepublic officer didnt meet the requirements of office. The District Court ousted him based onthe jurys verdict. The DC Court of Appeals affirmed. But SCOTUS reversed by stating the

jury verdict was nullified because the plaintiff wasnt an interested party and so he didnthave standing. Since the official Government attorneys refused consent to bring the action,the plaintiff couldnt just be a third person, the plaintiff had to be an interested person.

SCOTUS held that interested persons would include persons ousted from the office they arechallenging. But they left the door open with that last line, and there might be cases undert he c iv i l s e rv i ce l aw in which the relator w ould have an interest and therefore a right tobe heard. (Emphasis added.)

THREE WAY S TO BRING QUO WARRANTO

1. The US attorney and/or the US Attorney General institute the case on their own motion which is the best way this could happen. No leave of the court need be requested. There willbe a hearing and a trial of facts.

2. If no authorized Government attorneys will bring the action on their own motion, then anycitizen may join a law suit as third persons and such law suit, by way of verified petition,shall be brought to the US Attorney and/or the Attorney General to ask their consent to usethe name of the United States. If the Government gives consent, then you must requestpermission from the court to bring the suit as well. And if the Court says yes, you will have ahearing on the merits.

3. If the Government will not give consent, then interested persons may request leave of the

court to institute the action in quo warranto. But standing will be according to SCOTUS inNewman restricted to anybody who was ousted from the office of POTUS (and nobody isgoing to meet that requirement) or, in the alternative there might by cases under the civilservice laws which provide standing.

I dont know exactly what SCOTUS meant by that vague reference to civil service laws, but Iwould assume they are making reference to Government employees, and perhaps this couldalso apply to recipients of civil service benefits. I dont believe the military are party to thecivil service laws, so I dont see them as being the plaintiffs with the best possible standing.

The holding in Newman is certainly ripe for a challenge, but care ought to be made to find the

best possible plaintiffs who might qualify as interested persons.

The best private plaintiffs who might have standing to institute an action in quo warranto asinterested persons would be those persons with an injury in fact caused by an official actionof POTUS as it relates to the civil service laws.

Active military may appear to have the best standing base

leo donofrio - quo warranto expanded

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