QUO WARRANTO LEGAL BRIEF: Part 3 STANDING-TRIAL BY JURY- HISTORY OF STATUTE – SEPARATION OF POWERS Cont.

[CORRECTIONS struck out below and in purple. 03.11.09]

[UPCOMING RADIO INTERVIEWS]

– Wed. March 11, 3:05 (East coast time) Joyce Kaufman show, WFTL 850AM Ft. Lauderdale/Miami

– Wed. March 11, 9:00 (East coast time) Solutions Not Politics with Devvy Kidd

– Thurs. March 12, 9:05 (East coast time) The Crystal Chalice show

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

1. SCOTUS IS THE WRONG VENUE TO INITIATE AN ACTION IN QUO WARRANTO BECAUSE DOING SO WOULD DEPRIVE THE PUBLIC OF A JURY TRIAL ON THE ISSUE OF WHETHER OBAMA WAS BORN IN HAWAII.

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

§ 16-3544. Pleading; jury trial.

In a quo warranto proceeding, the defendant may demur, plead specially, or plead “not guilty” as the general issue, and the United States or the District of Columbia, as the case may be, may reply as in other actions of a civil character. Issues of fact shall be tried by a jury if either party requests it. 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 in Hawaii 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 brought to SCOTUS before it’s brought to the District Court of the District of Columbia, and if SCOTUS were to accept the case, you’re never going 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 born in the US/Hawaii.

b. if the jury’s verdict is that he wasn’t born in Hawaii, then the legal question is easy: he’s not a natural born citizen.  please take note that the issue wouldn’t be whether the online COLB is genuine, the issue is whether Obama was born in Hawaii and any COLB or other document would only be considered as a piece of evidence for the jury to consider.

c.  if the jury’s verdict is that Obama was born in Hawaii, then the next issue is a more complex judicial question.  the District Court would have to make a legal determination as to the meaning of NATURAL BORN CITIZEN.

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

While Congress has the power to remove the President under the Constitution, they don’t have the power to interpret the Constitution.  The judicial branch must do that.

As to issues of fact, ie:

– 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 of fact which Congress properly recognized were best 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 of legal interpretation outside the Constitutional authority of Congress.

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

Congress didn’t delegate the authority to remove the President…they exercised that authority.  (My previous explanation was not correct.  I said they delegated their authority but that was a poor choice of words.  Please forgive me.)  Congress exercised their authority by allowing for the removal of the President.

Under the statute, the DC District Court must follow the law enacted by Congress.  Congress has deemed that if an action is instituted properly, the court then conducts a trial as to all relevant facts.  After the facts are determined, the court is empowered under the Constitution, to interpret the law in light of the facts.

JURY TRIAL.  Think about that.

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

GOD FORBID SCOTUS WOULD EVER JUMP IN AND TRY TO WRANGLE THIS CASE FROM A DISTRICT COURT JURY.

2.  STANDING UNDER THE DISTRICT OF COLUMBIA CODE TO INSTITUTE A FEDERAL QUO WARRANTO ACTION

a. STANDING OF GOVERNMENT OFFICIALS

The DC code allows three different levels of standing to “institute” a quo warranto action.  As to private plaintiffs, SCOTUS noted – in Newman at 538 – that Congress “has placed obstacles” in the way.  But as to the “Attorney General” or the “United States attorney”, who act in the name of the United States, the statute makes it very simple for an action to be instituted.  It says:

“The Attorney General of the United States or the United States attorney may institute a proceeding pursuant to this subchapter on his own motion…”

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

“By virtue of their position, they, at their discretion and acting under the sense of official responsibility, can institute such proceedings in any case they deem proper.”

“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 party affiliation.

– There is no “standing” to prove.  If your title is US Attorney General or United States attorney, 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 discretion is unassailable judicially.

WHY SHOULD THESE OFFICIALS DEEM QUO WARRANTO PROPER?

The short answer is that the action is proper to settle title to the office of President for the good of the nation.

Even if both officials are convinced Obama is eligible, it’s still proper for them institute a quo warranto proceeding because the evidence emerging now is that, by leaving the controversy as is, 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 an “imposter” 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 in ANDRADE v. LAUER, 729 F.2d 1475, 234 U.S.App.D.C. 384 (1984), the Court of Appeals for the District of Columbia has held that the defacto officer’s doctrine does not prohibit “collateral attacks” of official actions based upon a public officer’s lack of eligibility.  These are not quo warranto suits to remove the official, they are civil suits to challenge a specific action of that official.

In the Andrade case, the plaintiffs were Government employees who lost their jobs to “reduction 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 US Constitution.

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

They opened the door to a floodgate of litigation by an incredibly large field of possible plaintiffs who might challenge every single official action of the Obama administration on the basis that he isn’t eligible.

– Furthermore, there is a tenet of Government that requires there be a certainty to the official actions taken in the name of the United States.  No certainty is possible when millions of US citizens, including active military, are concerned that Obama’s credentials were not verified in the same way all citizens must verify their identity for the most simple things in life like getting 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 the same levels of identity proof as the citizens.

Regardless of whether one believes Obama’s online COLB is real, no citizen can tell the Government 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 them if you don’t bring it in person.

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

The issue is whether the Attorney General and/or a United States attorney deems it proper for Obama to provide the same proof of identity as ordinary citizens in order to avoid FORESEEABLE complications which are destined to rot public faith.

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

I have stated over and again on numerous radio programs that I do not believe any private plaintiff has standing to demand to see Obama’s records of birth or any other personal records.  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 said this over and over and over again.  But I was grouped in with these other attorneys whose theories I take great issue with.

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

However, the United States attorney, the Attorney General and the District Court for the District of Columbia do have authority to command Obama to prove his credentials.  And they ought to exercise that authority for the good of the nation, especially our military.

I fail to see any difficulty in establishing non-partisan compliance with the SCOTUS holding in Newman that these officials may bring a quo warranto if they simply “deem it proper” to do so.

That decision is not subject to review.

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

IMPORTANT:

The best possible candidates I can think of who should request the US Attorney and/or the Attorney General to bring an action in quo warranto on their own motion are Retired Military officers who understand the absolute need for the President’s title to office not to be encumbered by doubt.  Retired military can band together to request that these Government attorneys “deem it proper” to protect the active military from all of the swirling dangers their involvement in a political action as to POTUS eligibility would bring.  Such a request shows no disrespect, but rather recognizes the actual risk now being taken by soldiers getting involved with various law suits.  The retired military would not be making a case for or against Obama’s eligibility, but rather they would simply be asking that the issue be resolved one way or the other under the applicable statute.  Again, keep in mind that the statute doesn’t require anything more than that the US attorney or the Attorney General “deem it proper.”

Please don’t confuse this with asking these retired military to be plaintiffs.  That’s not what I’m suggesting.  I’m 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 bring an action in quo warranto on their own motion with no private plaintiffs.

Another interesting question is whether any of the 94 United States attorneys may institute the proceeding in quo warranto…[Ed.  I have reconsidered the discussion on this issue and as of 03.011.2009 struck it from the brief.   16-3502 applies exclusively to the US Attorney General and to the US Attorney for the District of Columbia.  I believe that’s the most accurate intention of the statute.]

b. Standing of “third persons” vs “interested persons”.

16-3502 states:

The Attorney General of the United States or the United States attorney may institute 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 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.

The terms “third person” and “interested person” have been interpreted by SCOTUS  in the Newman case as follows:

The Code provides that a “third person” — the equivalent of “any person” — may institute the proceedings only after he had secured the consent of the law officers and the court. It makes a distinction between a “third person” and an “interested person,” and provides that, if the Attorney General refuses to give his consent to the latter, such “interested person” may secure the right to use the name of the government by satisfying the… Court of the District that his reasons for applying therefore are sufficient in law…

Considering the ancient policy of the law and the restrictions imposed by the language of the Code, it is evident that, in passing this statute, Congress used the words “third person” in the sense of “any person,” and the phrase “person interested” in the sense in which it so often occurs in the law…The interest which will justify such a proceeding by a private individual must be more than that of another taxpayer. It must be “an interest in the office itself, and must be peculiar to the applicant”…The language of the Code, supported by the history and policy of the law, sustains the proposition that one who has no interest except that which is common to every other member of the public is not entitled to use the name of the government in quo warranto proceedings.

For if the allegations in such a suit by a private citizen set out any cause of action at all, it shows on its face that it was a cause of action belonging to the whole body of the public, and which therefore should be prosecuted by the public representative.

The rule is the same regardless whether the office is elective or appointive. For in neither case is there any intent to permit the public office to be the subject matter 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 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.

In Newman, there was a jury trial and the jury held that the public officer didn’t meet the requirements of office.  The District Court ousted him based on the jury’s verdict.  The DC Court of Appeals affirmed.  But SCOTUS reversed by stating the jury verdict was nullified because the plaintiff wasn’t an “interested party” and so he didn’t have standing.  Since the official Government attorneys refused consent to bring the action, the plaintiff couldn’t 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 are challenging.  But they left the door open with that last line, “…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.” (Emphasis added.)

THREE WAYS 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 will be a hearing and a trial of facts.

2. If no authorized Government attorneys will bring the action on their own motion, then any citizen 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 use the name of the United States.  If the Government gives consent, then you must request permission from the court to bring the suit as well.  And if the Court says yes, you will have a hearing 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 in Newman – restricted to anybody who was ousted from the office of POTUS (and nobody is going to meet that requirement) or, in the alternative there might by cases under the civil service laws which provide standing.

I don’t know exactly what SCOTUS meant by that vague reference to “civil service laws”, but I would assume they are making reference to Government employees, and perhaps this could also apply to recipients of civil service benefits.  I don’t believe the military are party to the civil service laws, so I don’t 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  as “interested  persons” would be those persons with an injury in fact caused by an official action of POTUS as it relates to the civil service laws.

Active military may appear to have the best standing based on a purely emotional reading of the term “interested persons”, but according to the controlling SCOTUS decision in Newman, the military aren’t the best subset of “third person” plaintiffs.

This is thes best shot, not the military.  They do enough for us to at least deserve civilians with better standing exhaust every possible Constitutional means available before subjecting them to any number of possible court martials.

3. LEGISLATIVE HISTORY OF TITLE 16 CHAPTER 35 (Quo Warranto) OF THE DISTRICT OF COLUMBIA CODE.

Chapter 35 is entitled “QUO WARRANTO”.  Subchapter I is entitled “Actions Against Officers of the United States.” Subchapter II is entitled “Actions Against Officers or Corporations of the District of Columbia“. Please note that the original DC quo warranto statute was first enacted in 1901.  While SCOTUS interpreted that statute as controlling national officers, Congress modified the statute in 1963 to its current form which erases any possible doubt that the statute applies to all Officers of the United States.

Furthermore, the District of Columbia Code is federal law.  It’s enacted by Congress and the actual United States Constitution is included in the District of Columbia code.  I have seen the most erroneous comments online wherein it has been argued that a “local DC code is not federal law”.  Besides the ultimate federal law – the Constitution – being placed directly in the DC code, SCOTUS has stated – in the seminal quo warranto DC code case, Newman v. United States ex Rel. Frizzell, 238 U.S. 537 (1915) – that the District Code applies to all…

“…actions in quo warranto instituted by authorized parties against national officers of the United States, they are general laws of the United States, and not merely local laws of the District of Columbia…”

I must reiterate that the code’s text does not provide any exceptions for any public office, not even POTUS.

In UNITED STATES of America ex rel. STATE OF WISCONSIN v. FIRST FEDERAL SAVINGS AND LOAN ASSOCIATION, 248 F.2d 804 (1957), the US court of Appeals, 7th Circuit, provided an on point discussion of quo warranto in the district courts:

There have been submitted to this court only two instances in which original quo warranto jurisdiction has been specifically conferred upon federal district courts. The revised statutes of 1878 vested jurisdiction in these courts of proceedings brought by the United States Attorney for the removal of persons holding office contrary to the Fourteenth Amendment. Rev.Stat., Sections 563(14), 626(14), (1786). This Act was repealed in the Judicial Code of 1911, 36 Stat. 1168. In 1901, Congress specifically authorized the United States District Court for the District of Columbia to issue quo warranto in the name of the United States. Act of March 3, 1901, 31 Stat. 1419, Title 16, Section 1601 of the D.C. Code (1940). However, this grant is strictly limited and is confined solely to situations involving franchises and public offices held within the District of Columbia. There is no other specific statutory provision vesting original jurisdiction in the district courts in quo warranto actions.

The first statute mentioned above dealt specifically with quo warranto actions which arose out of 14th amendment issues where citizens were refused the right to vote.  Under this statute, all US district courts could hear quo warranto cases.  But this statute was repealed in 1911 and so the only remaining statute which controls quo warranto is the District of Columbia Code.  And all actions brought thereunder must be brought in the District Court for the District of Columbia.

All discussion of quo warranto actions brought in other “district courts” of the US has been rendered moot.  Unfortunately, I have seen irrelevant analysis of that repealed statute applied to the DC Code by various confused commentators online.  In a quote taken from a legal treatise called Treatise on Federal Practice by Roger Foster, written in 1921, he states:

“The better opinion is that the District Courts of the United States have original jurisdiction to grant the writ of quo warranto only when specifically authorized by statute; and that no writ of quo warranto can issue from them to try the title to the office of President of the United States.”

At first glance it appears this “better opinion” might be a problem.  I don’t know where he derives this “better opinion” from, certainly not the federal courts or SCOTUS because no such case law exists.  It’s probably a reflection of a common erroneous assumption that the Constitution only allows removal of a sitting President by impeachment in the House and conviction in the Senate.  We put that rumour to rest in part 2 of this brief — the Constitution does not say that anywhere in the Document’s text.

When you continue with the Foster quote, it states:

The District Courts of the United States have jurisdiction of all suits to recover possession of any office…authorized by law to be brought, wherein it appears that the sole question touching the title to such office arises out of the denial of the right to vote to any citizen…” (Emphasis added.)

This analysis is specifically directed to the repealed statute regarding quo warranto wherein “the sole issue” is deprivation of 14th amendment voting rights.   It has nothing to do with the District of Columbia Code wherein quo warranto may be brought against any “public office of the United States” with regard to anyone found to be a usurper for any legal breach.

The statute Foster refers to has been repealed.  It didn’t deal with Constitutional qualifications for office.  Also notice that the comment says “District Courts”.  This is obsolete.  District Courts – other than the DC district court – have been stripped of authority to hear any quo warranto cases.

CONCLUSION: The District of Columbia Code is the only means by which a federal quo warranto action can be instituted and its application is strictly limited to public offices of the United States or local DC offices within the ten square miles of the District of Columbia.  No public office, ie POTUS, is exempt by the statute.

QUO WARRANTO LEGAL BRIEF – Part 2: The Federal Quo Warranto Statute Is The Only Constitutional Means of Removing a Sitting President Other 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 are heavyweights.]

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

The issue of whether the President can be removed from office other than by impeachment is the single most important question presented with regard to challenging the eligibility of a sitting President. This section of the brief contains important new information supporting the conclusions discussed in Part 1 of this legal brief .

Please understand that if the Constitution limits Congressional power to remove the President to only cases of impeachment then there is no Constitutional mechanism available to remove a President who is proved to be a usurper.  And if that’s true, then the federal quo warranto statute doesn’t have the power to remove a sitting President… even if it was proved beyond any doubt he was ineligible. 

The best dream team of lawyers you can draft may bring all the law suits they like for the best possible reasons in favor of the most perfectly possible plaintiffs with undeniable standing as to 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 and they should fail.

In order to protect the Constitution, we must not subvert the separation of powers.

If it can’t be done by quo warranto, then it can’t be done at all. Why?

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

If we are going to challenge eligibility to protect the Constitution, then we certainly cannot do an end around the separation of powers.  I have recognized this from the outset and that’s why I tried to have the eligibility issue litigated prior to election day and then again prior to the electoral college meeting.  After the electoral college met and cast its votes for Obama, he went from being an ordinary candidate 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 can be challenged by Congress.  The political question doctrine kicks in at that point and the ability of any other branch to challenge for POTUS eligibility is probably nullified.  And once the President-elect is sworn in and assumes office, the Constitutional separation of powers certainly controls the issue.

Recall, Congress didn’t challenge Obama’s eligibility before he was sworn in, so those provisions are now moot.   And once a person is sworn in as President, the Constitution then provides specific means for removing the President from office, none of which grant such power to the Judicial Branch.  Now please consider the following two points:

1.  Nowhere in the Constitution does it give the Judicial Branch the power to remove a sitting President.

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

They will argue Obama isn’t legally President and so therefore the Constitutional separation of powers can be ignored.  Should a court ever accept that theory, you will have the recipe for civil war, and you will be doing more damage to the nation than you can even imagine.  Protest all you like, but the US Government recognizes his authority.

Furthermore, United States Courts all the way up to SCOTUS have refused to get involved, and this was the case before Obama was sworn in when the Judicial Branch actually did have the power to adjudicate the eligibility issue.  They punted.  Fact.

Now that Obama has taken the office of President and is officially recognized as President, no court is going to suddenly take a leap around the separation of powers by agreeing the Constitution doesn’t apply to Obama as President.  That will never happen.

Let that sink in because it’s true.

2.  Nowhere in the Constitution does it say that impeachment is the sole means of removing the President.

Some who support Obama’s eligibility will seek to subvert the Constitution by arguing that the Constitution states that the sole remedy for removing the President is impeachment.  Nowhere in the Document does it say that. Those who believe it must “imply” or “assume” that is the case.  But the Constitution does not state that impeachment is the sole means of removing the President.

The Constitution does say that Congress has the sole authority to impeach 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 say that 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 I strongly believe proves that the framers provided Congress with the power to remove a President who is found to be ineligible.  This makes sense because not every person who is found to be ineligible is guilty of a crime.

HYPOTHETICAL:

Two double agents born in the evil nation of  “KILLAMERICASTAN” sneak a child into America over the Canadian border and later obtain false documents indicating 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 politician and eventually becomes President.  After being sworn in, the truth is discovered by US Intelligence and proved beyond any doubt.  The President then refuses to leave office since he didn’t do anything wrong and had no knowledge of the plot.

What happens?

Well, the President has done nothing to be impeached.  He’s not guilty of any high crimes or misdemeanors, bribery or treason.  Did the framers leave us naked in such a situation?  I don’t believe 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 willing to drop the eligibility fight once the Electoral College met.  I understand and respect the Constitution. And I would never further damage it by aiding a new Constitutional crisis which might help to bring our Republic down.

We must respect the separation of powers or we will lose the Constitution and the Republic for which it stands.

The separation of powers argument will be the proper undoing of every single POTUS eligibility law suit running through the courts at this moment in time.  They will all fail.  And they 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 – Obama’s eligibility (as opposed to seeking removal), the courts will dismiss 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 that’s not going to happen either).

While I respect the litigants and the efforts they have made, I take issue with some of the tactics employed and I’m also not that impressed with many of the pleadings.  I hope that, by publishing 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 authorized Government 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 any attorneys who may wish to pursue a quo warranto petition.  This should save time and resources.

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

IS THERE A CONSTITUTIONAL SOLUTION?

It appears there is a Constitutionally viable method available for the eligibility issue to be litigated which does not violate the separation of powers enumerated in the Constitution.  I strongly believe the federal quo warranto statute provides the only Constitutionally viable means 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, but first let’s discuss the following:

REVIEW OF CURRENT QUO WARRANTO ACTIVITY

As far as I can tell, only one attorney has filed for an actual quo warranto claim at this point in time.  Unfortunately, that attempt will fail as it was brought on behalf of private plaintiffs.  As you 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 an action 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 States officer – whether elected or appointed – can only be brought in the District Court of the District of Columbia.

Another attorney has sent a “pre-litigation” letter to Attorney General Holder.  But the statute requires a “verified petition” be forwarded to the Attorney General and/or the US Attorney requesting consent plaintiffs be allowed to institute a quo warranto action in the name of the United States.  No such petition has been filed.

This “letter” sent to AG Holder insists he recuse himself due to an alleged conflict of interest since the Attorney General’s office is the designated defender of the President.  But that is only true as to the President’s official actions.  A Quo warranto dispute is not related to official activity of the President’s 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 quo warranto as a civil action.  I believe the President would have to hire private counsel to defend him.

So, there’s probably no legal conflict of interest requiring Eric Holder to recuse himself.   Any conflict of interest which exists is probably limited to the personal gratitude AG Holder may have for Obama since he appointed him.  But that’s not the type of conflict which requires recusal.  For example, a Supreme Court Justice does not have to recuse himself in a dispute involving the President who appointed him.

It’s not fair to suggest AG holder won’t do his job because he owes personal allegiance to Obama.  I believe in fighting a fair fight even if others fight unfairly against me.  It’s only fair that the man be given the chance to do the right thing.  Furthermore, no verified petition has even been forwarded to the Attorney General’s office.

The federal quo warranto statute provides that the “United States attorney” may institute an action in quo warranto on his own motion.  The US Attorney for the District of Columbia is Jeffrey Taylor.  He was appointed to that position in 2006 by the Bush administration and certainly has no conflict of interest.  I am not aware of anybody who has contacted US Attorney Taylor in this regard.  It will only take one of those officials to bring the action, not both.

WHY EVERY EFFORT SHOULD BE MADE BY THE PUBLIC TO PRESSURE AG HOLDER AND US ATTORNEY TAYLOR TO INSTITUTE – ON THEIR OWN MOTION – AN ACTION IN QUO WARRANTO ON BEHALF OF THE UNITED STATES WITHOUT EX RELATOR PLAINTIFFS

While arguments about whether the military make the best plaintiffs have been raging, the simple truth is that a quo warranto case with the best chance of success ought to be initiated with no private plaintiffs at all.  The federal quo warranto statute shows a preference for cases brought on behalf of the United States by the Attorney General or the US Attorney.  And until respectful pressure is applied to those officials, the nation is deprived of the most perfect avenue to justice.  Until this course of action is exhausted, I pray that all private attorneys briefly delay requesting consent from these officials while an effort is made to persuade them that it’s 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.  AG Holder and US Attorney Taylor need to consider that the citizens, the military, the Government – as well as Obama himself – will all be better off once clear title to the office is established.

§ 16-3502. Parties who may institute; ex rel. proceedings.

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

In Newman v. United States ex Rel. Frizzell, 238 U.S. 537 at 546 (1915), the Supreme Court interpreted the role of the AG and US attorney as follows:

The District Code still treats usurpation of office as a public wrong which can be corrected only by proceeding in the name of the government itself. It permits those proceedings to be instituted by the Attorney General of the United States and 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, can institute such proceedings in any case they deem proper. But there are so many reasons of public policy against permitting a public officer to be harassed with litigation over his right to hold office that the Code not only does not authorize a private citizen, on his own motion, to attack the incumbent’s title, but it throws obstacles in the way of all such private attacks. It recognizes, however, that there might be instances in which it would be proper to allow such proceedings to be instituted by a third person, but it provides that such “third person” must not only secure the consent of the law officers of the government, but the consent of the Supreme Court of the District of Columbia before he can use the name of the government in quo warranto proceedings.

The modern federal statute is virtually identical except the US attorney has been included with the Attorney General as the two officials who may “at their discretion and acting under the sense 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 be obvious 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 warranto upon their own motion, such an action is brought on behalf of the United States and no leave of the court is necessary.

Comparatively, if a private attorney petitions these officials to allow them to bring suit in the name of the US “ex relator” then even if one of the two officials gives their consent, leave of the court must be requested and if denied, that’s it.  The matter is done.  One could then appeal to SCOTUS, but SCOTUS is the last resort, not the first.  There’s no need to disrespect the statute and the resources of the court by going straight to SCOTUS.  That’s just sensational, not wise.

Another interesting point to consider is that while the predecessor statute only named the District Attorney for the District of Columbia – the modern statute which controls quo warranto as to national officers mentions both the Attorney General and the “United States attorney”.  As written, it’s possible any US attorney might be eligible to institute such a quo warranto action.  Notice that in the statute – “attorney” isn’t capitalized in either 16-3502 or 16-3503 when the “United States attorney” is mentioned. Of course, US Attorney Taylor is certainly authorized, but this needs further research.

Assuming AG Holder or US Attorney Taylor were to institute an action in quo warranto, the District Court might attempt to avoid a hearing on the merits (which every court of the nation seems 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 of the 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 in establishing that the President has a clear title to the office of President, there should be no obstacle preventing at least one of the two officials charged with the authority to act in the name of the United States to bring this issue to the court for the benefit of the nation.

THE CONSTITUTION HAS PROVIDED CONGRESS WITH THE AUTHORITY TO REMOVE THE PRESIDENT FROM OFFICE IN CASES OTHER THAN IMPEACHMENT.

Evidence of this power is directly written into the Constitution.  The most obvious section is Article 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 shall devolve on the Vice President, and the Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected.

Unlike in Wikipedia, the actual text of the Constitution does not apply the heading “Vacancy and Disability”.  The heading is misleading.  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 of President

– the second purpose was to provide Congress a means to remove the President should it become clear that he is not entitled to hold the office, for example – a classic quo warranto situation or if the President becomes disabled.

I realize this is an entirely new theory of Constitutional law and that the common accepted interpretation 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 only means by which the President can be removed.  And since the concept of demanding public officials prove their legal warrant to hold office via the extraordinary writ of quo warranto goes back to feudal 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 the Constitution?  Knowing their collective wisdom, not very likely.  So please suspend judgment until the full weight of the evidence is revealed.

EVIDENCE THE FRAMERS INTENDED TO PROVIDE FOR REMOVAL OF THE PRESIDENT BY QUO WARRANTO – SUCH POWER 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 sole means of ousting a sitting President.  The following are my list of exhibits.

EXHIBIT 1: A perfect on point reference from James Madison’s personal notes are included in the Records Of the Federal Convention:

In Case of his Impeachment, (Dismission) Removal, Death, Resignation or Disability to discharge the Powers and Duties of his (Department) Office; the President of the Senate shall exercise those Powers and Duties, until another President of the United States be chosen, or until the President impeached or disabled be acquitted, or his Disability be removed.

[2:186; Madison, 6 Aug.]

James Madison’s notes here pertain directly to Clause 6 and they list – separated by commas – all the various possibilities whereby the President’s office might be vacated.  Clearly, they considered that the Presidency might be vacated by a “Case of Impeachment” as well as “(Dismission) Removal, Death, Resignation, or Disability“.

Impeachment and Dismission are listed as mutually exclusive devices to remove the President.

EXHIBIT 2: Clause 6 directly follows the infamous Article 2, Section 1, Clause 5 wherein the exact qualifications for the office of President are listed.

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

EXHIBIT 3: The text of Article 2, Section 1, Clause 6 would be redundant unless the dual purposes listed above were 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 shall devolve on the Vice President,…

If the sole intention of the framers was that Clause 6 only applied – as to the POTUS – with regard to replacing a vacancy then there was no need to say anymore about it – as to the President.  The first line indicates that the powers devolve upon the Vice President when a vacancy occurs. So what’s 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 for succession as to the President, have given Congress – in the 2nd line – the authority to “by Law provide for the Case of Removal… ” of the President and Vice President.

Now, let’s examine the third line:

…declaring what Officer shall then act as President, and such Officer shall act accordingly, 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 the Framers intended to give Congress the authority to remove the President as long as the manner in which they do that is provided for “by law” in line 2.   Then in line 3, the Framers charged Congress to provide for a line of succession should the Presidency be vacated… as well as the Vice Presidency, and so on.

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

EXHIBIT 4:  The 25th Amendment.

One of the arguments against my theory is the misconception that the 25th Amendment superseded every purpose of Clause 6.  I don’t believe that’s correct.  The 25th amendment was born directly due to the clunky ambiguities contained in Article 2 Section 1 Clause 6.  And the 25th Amendment response to that wording directly attests that the Congressional power vested by Clause 6 was not just concerned with providing for a vacancy since the 25th Amendment also provides specific means by which Congress can force the President to leave office, temporarily and/or permanently:

Whenever 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, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately 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 25th Amendment provide Congress the ability to “by law provide” (the same language as used in Clause 6 as to “removal”)  some “other body” the right to declare the President unable to discharge his duties?

Clearly, if the 25th Amendment was simply a clarification of Clause 6, then Clause 6 must have vested Congress with more power than just the power to provide for succession since the 25th Amendment 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 a natural born citizen – would make him unable to discharge his duties is certainly debatable, but I don’t think the 25th Amendment pertains to that fact pattern since Clause 6 and Madison’s notes both list “Removal” and “inability to discharge the Power and Duties” as mutually exclusive.  It would be disingenuous to argue that the 25th Amendment directly pertains to a quo warranto situation.

However, it’s obvious that if the 25th Amendment is a response to the ambiguity of Clause 6, then Clause 6 wasn’t 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 to discharge duties – then Congress also had the power to remove the President for being found ineligible.

The 25th Amendment is quite an amazing grant of power when you consider the President can be forced to step down if Congress believes he’s lost his mind.  That’s certainly a much greater power 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 the 25th Amendment doesn’t discuss.

The 25th Amendment doesn’t discuss death or resignation.

Why?

Because there is nothing to discuss.  When the President dies or resigns has nothing to do with Congress.  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 power must be derived directly from Article 2 Section 1 Clause 6.

QUESTION: If Congress has the power to remove a President should it become known he was a usurper, then why doesn’t the 25th Amendment address that?

ANSWER: Because by 1967 – when the 25th Amendment was ratified – Congress had already exercised their authority on this issue by enacting the federal quo warranto statute which allows for the removal of any United States officer found to be a usurper.

EXHIBIT 5: Article 2 Section 4:

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.

If one argues that the federal quo warranto statute does not apply to the President because the only way to remove a President is by impeachment, then it stands to reason that the statute also can not apply to “civil officers of the United States”.   If you’re going to argue that Article 2 section 4 is the sole means of removing the President, then you must also argue that it’s the sole means of removing “civil officers of the United States”.

If that’s your argument, then 16-3501 of the federal quo warranto statute makes absolutely no sense. Take a look:

A quo warranto may be issued from the United States District Court for the District of Columbia in the name of the United States 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 proceedings shall be deemed a civil action. (Emphasis added.)

If Congress didn’t believe they had the authority to remove a usurper from any public office of the United States, they why did they enact the statute to to read as if it covers every public office of the United States?  Why didn’t they write relevant exceptions in the statute for the office of President, Vice President and civil officers?

The 25th Amendment clarified “Article 2 Section 1 Clause 6” only in so far as the clause needed clarification.  It didn’t need clarification as to death or resignation of the President as those are obvious, and it didn’t need clarification as to issues of quo warranto and usurpers because they had enacted a thorough federal statute.

EXHIBIT 6: Article 1 Section 8 Clause 17 – aka “The Hook Clause”

Article 1 Section 8 Clause17 states:

The Congress shall have power…To exercise exclusive legislation in all cases whatsoever, over such District (not exceeding ten miles square) as may, by cession of particular states, and the acceptance of Congress, become the seat of the government of the United States,…

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 the District of Columbia in the name of the United States 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 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 precedent – the voiding of “Mr. Shields” and “Mr. Galatin’s” US Senate elections after they were found to be usurpers who did not meet the qualifications for office enumerated in the Constitution.

While the Constitution doesn’t provide for impeachment of Senators or Representatives, it does provide for their “expulsion” by a vote of two thirds of all members of each body respectively.  Article 1 Section 5 states:

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

Like impeachment for a President, expulsion is sometimes erroneously assumed to be the only Constitutional process by which a Senator can be removed from office.  But that’s not accurate.  The Senate can remove a sitting Senator should he be found to be a usurper, just as they can remove a President found to be a usurper… and they have done so at least twice that I am aware of.

At Senate.gov, all fifteen of the Senators who have been removed by the Constitutionally enumerated process of expulsion are listed.  Please notice that the list doesn’t include Senator Shields who was removed by Congress in 1849.

Senator Shields was removed by the Senate after it was discovered that he was an alien by birth, and that when he was elected in January 1849 – from the State of Illinois, to serve as a US Senator – he had not been a US citizen for the requisite nine years.  However, he was not removed 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 that since Shields was never qualified, he was never a Senator even though he had been sworn in and had been serving as a Senator until March 1849 when his election was completely made void and the seat declared vacant.

Since Shields it was discovered – after Shields had occupied the Senate seat – that he didn’t meet the Constitutional qualifications for the office of Senate, the Senate held that he was never an actual Senator and so his removal is not recorded as an expulsion.

Nowhere in the Constitution does it explicitly state that the Senate may remove a Senator by making a determination that his election was void and that he was a usurper.  But that’s exactly what happened.  If the power to remove a usurper wasn’t Constitutionally allowed, the Senate couldn’t have voided Mr. Shields election and vacated his Senate seat.  But they did.

The Congressional Globe account of the Shields removal is preceded by an account of a similar precedent regarding a Mr. Albert Galatin.  Mr. Galatin was elected to the US Senate from Pennsylvania in 1793 and it was later found that he had never become naturalized.  The Senate again voided his election stating that the election wasn’t just “voidable”, but that since there was no way to cure the qualification defect… the election was completely “void”… it didn’t happen.

It’s important to note that the first quo warranto statue enacted by Congress didn’t take effect until 1787 [typo – that should read “1878”] so in 1793 and 1849 the Senate chose to void the elections of the two usurpers.

So here we have precedent for Congressional authority to remove Senators other than by expulsion.  Usurpation of office resulted in elections being voided and the Senate record do not even record usurpers as having been members of the Senate.  If Congress can remove a usurper to the Senate without expelling him, this provides evidence that Congress can remove a usurper to the Presidency without impeaching him.

It appears there is no possible separation of powers issue to confront.  If a person occupying the Presidency is found to be a usurper, then his Presidency is a fiction to be voided in history and his name removed from the record books.  A usurper isn’t allowed to have been said to be President.  His occupation is a fiction.

In the Galatin case the Senate made clear that since there was no possible way the failure to qualify 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 the Congressional Globe. ]

EXHIBIT 8: USC CODE: TITLE 3 THE PRESIDENT Chapter 1. Presidential Elections and Vacancies

Please review §19:

Vacancy in offices of both president and vice president; officers eligible to act

§ 19.   (a) (1) If, by reason of death, resignation, removal from office, inability, or failure to qualify, there is neither a President nor Vice President to discharge the powers and duties of the office of President, then the Speaker of the House of Representatives shall, upon his resignation as Speaker and as Representative in Congress, act as President.

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

EXHIBIT 9: COMMON SENSE

Out of all the exhibits listed above, I think it’s most important to keep in mind the most simple evidence – common sense.  Does anybody really believe our Constitution prevents the removal of a person who is found to be a usurper to the office of President?

The answer must be no.

CONCLUSION: The federal quo warranto statute provides the only Constitutional means by which a sitting President may be removed by the Judicial branch.

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

[To be continued in part 3.]

QUO WARRANTO LEGAL BRIEF: part 1

INTRODUCTION:

 

Chapter 35§ 16-3501 Persons against whom issued; civil action.

A quo warranto may be issued from the United States District Court for the District of Columbia in the name of the United States 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 proceedings shall be deemed a civil action.

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

This legal brief considers all relevant issues pertaining to the proper legal use of the extraordinary writ of quo 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 for the District of Columbia, Mr. Jeffrey Taylor, along with an open letter requesting their direct attention to the issues contained herein.

Please note from the start that only one of these officials need bring the action in quo warranto.  The applicable statute vests both officials with the same mutually exclusive authority to do so.  The statute requires either/or, not both.  And the statute also provides a separate mechanism by which their official consent is not necessary to an action in quo warranto 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 man charged with the duty to uphold the law must be given his rightful chance to follow and be guided by the rule of law.  And until every effort is made to most effectively bring an action in quo warranto, I personally can’t be satisfied  I’ve done everything in my power to protect the Constitution and the Republic.  Thanks to my readers for pointing this out. (Also see my apology to SCOTUS for previous inflammatory comments along with removal of noted image.)

Since an action in quo warranto is unquestionably the correct legal device to challenge the eligibility of any public office holder and since quo warranto has not been properly set in motion or explained to the public, this brief will attempt to educate the public and the proper officials as to the need to resolve the Obama POTUS eligibility issue in a single quo warranto hearing rather than subject the nation to a floodgate of litigation from plaintiffs with proper standing to bring collateral attacks challenging, on the basis of POTUS ineligibility, any number of potential orders and actions to be issued by the Obama administration.

Additionally, having studied controlling quo warranto cases, I have come to the conclusion that military plaintiffs probably do not have any special standing to institute an action for quo warranto which differs from the standing of the general public.  Please consider that this statement 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 personnel to institute actions in quo warranto under the statute.

However, there is a civilian subset of “third persons” who do have a viable claim to quo warranto standing to challenge Presidential eligibility in a direct legal attack on Obama’s title to office.  And so long as this civilian subset exists, there’s no good reason to subject our military to possible court martial by recklessly exposing them to UCMJ Article 88 violations as well as numerous other statutes which could potentially end their careers or land them in jail.

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

1. Does Obama’s birth status having been governed by the British Nationality Act of 1948, as was admitted by Obama, prevent him from satisfying the “natural born citizen” requirement of the Constitution.

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

POINT I:  WHETHER A WRIT OF QUO WARRANTO CAN BE ISSUED TO REMOVE A SITTING 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 of the United States.

The seminal SCOTUS case which has interpreted this statute is Newman v. United States ex Rel. Frizzell, 238 U.S. 537 (1915).  The opinion is truly one of most rational and clearly written decisions in Supreme Court history and by itself serves as a thorough education on the history of quo warranto as well as the proper statutory interpretation.  I suggest everyone read the entire case.

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

The Revised Statutes declare that the District of Columbia shall be the seat of government, and “all offices attached to the seat of government shall be exercised in the District of Columbia.” The Code …provides that the… court shall have jurisdiction to grant quo warranto “against a person who unlawfully holds or exercises within the District a . . . public office, civil or military.” It was probably because of this fact that national officers might be involved that the Attorney General of the United States was given power to institute such proceedings…

…the District Code, in proper cases, instituted by proper officers or persons, may be enforceable against national officers of the United States. The sections are therefore to be treated as general laws of the United States, not as mere local laws of the District. Being a law of general operation, it can be reviewed on 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 when current federal statute16-3501 revised the predecessor code to include officers of “the United States” and not just the District of Columbia.

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

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

B. Constitutionality of 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.  This is the remedy for removal of the President should he partake in high crimes or treason.   A quo warranto action 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 Article 2, Section 1, Clause 6:

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 Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected.

Many have argued that only Congress can remove a sitting President and that the separation of powers enumerated in the Constitution denies the courts any legal ability to remove a sitting President.  But with the federal quo warranto statute, Congress has delegated that authority to the District Court of the District of Columbia by providing for the removal of the President (and other public officers) by quo warranto where the President is found to be a usurper 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 the alternative, US Attorney Taylor on their own motion.  In that case, there must be a hearing on the merits (this will be explained in detail below).  Further assume Obama then produces a perfect long form birth certificate proving he was born in Hawaii, but then the District Court of DC holds that since Obama was also a British subject at the time of his birth, he is not a “natural born citizen” and is therefore not legally occupying the office of President.  Further assume that the DC District Court’s ruling is upheld by SCOTUS.

Under this fact pattern, Obama would not have broken any laws and so he couldn’t be impeached, but he would be removed from office pertaining to the removal authority of Congress 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 President found to be ineligible by enacting the federal quo warranto statute .

POINT II: WHO HAS THE AUTHORITY TO INSTITUTE AN ACTION IN QUO WARRANTO TO CHALLENGE THE CONSTITUTIONAL ELIGIBILITY OF A SITTING PRESIDENT?

[this brief will be continued in part 2]

SCOTUS on the unique power of Grand Jurors

My recent post concerning the 5th Amendment right of we the people to use the “presentment” power to investigate criminal activity on our own volition to review Government activity and bring all criminality to justice was very well received.  It seems to have woken alot of people up to the possibility of reviving the Constitution.  The power of  “presentment” is not some fanciful concept but a very real provision stated unequivocally in the 5th Amendment.   There’s no legal reason why we can’t use it.

That being said, the question of how we can use it must be tackled.  But always keep this in mind when the naysayers start harassing you.  25 people sitting on Grand Juries is the way we do all criminal indictments in the US.  If somebody is facing the death penalty or life in prison, they must first be brought before a Grand Jury and if 13 of the 25 agree that the person should stand trial then that’s what happens.

IF THE GRAND JURY IS GOOD ENOUGH AND TRUSTWORTHY ENOUGH FOR THE GOVERNMENT TO IMPRISON OR KILL WE THE PEOPLE THEN THE GRAND JURY SYSTEM IS ALSO GOOD ENOUGH AND TRUSTWORTHY ENOUGH TO INVESTIGATE THE GOVERNMENT FOR CRIMES.

This will be your mantra.  Don’t forget it.  Say it every day.

And as a teaser let me present to you some interesting SCOTUS language.

In United States v. Morton Salt, 338 U.S. 632 (1950), Justice Jackson said this:

The only power that is involved here is the power to get information from those who best can give it and who are most interested in not doing so. Because judicial power is reluctant, if not unable, to summon evidence until it is shown to be relevant to issues in litigation, it does not follow that an administrative agency charged with seeing that the laws are enforced may not have and exercise powers of original inquiry. It has a power of inquisition, if one chooses to call it that, which is not derived from the judicial function. It is more analogous to the Grand Jury, which does not depend on a case or controversy for power to get evidence, but can investigate merely on suspicion that the law is being violated, or even just because it wants assurance that it is not.

Ok, now let’s review the obstacle in our path.  Read my first article again and educate yourself regarding Note 4 to Rule 7 of the Federal Rules of Criminal Procedure wherein this Note to a Rule has been used as the executioner of our Presentment rights.  Basically, this note – which has no legal power to reverse a Constitutional provision – has been used to declare our 5th Amendment “Presentment” power  as “obsolete”.  Obsolete is a clever use of wording.  Obsolete doesn’t mean “illegal” or “cancelled by law”… obsolete simply means that it hasn’t been used recently, but “not being used” doesn’t mean we can’t use it.  We can.

In UNITED STATES vs. WILLIAMS 504 U.S. 36 (1992) the Court discussed a case wherein the defendant in a criminal action sought to overturn a Grand Jury indictment since the Prosecutor failed to provide exculpatory evidence to the Grand Jury.  Defendant relied on a rule which the 10th Circuit had enacted which required disclosure of exculpatory evidence by the  prosecutor to the Grand Jury.  But SCOTUS did not accept the argument. Justice Scalia wrote the following:

Respondent does not contend that the Fifth Amendment itself obliges the prosecutor to disclose substantial exculpatory evidence in his possession to the grand jury.

Ah, please note the Court’s concern for the construction of the 5th Amendment.  SCOTUS tells us here that the 5th Amendment trumps the 10th Circuit disclosure Rule.  Scalia goes on:

Instead, building on our statement that the federal courts “may, within limits, formulate procedural rules not specifically required by the Constitution or the Congress,” United States v. Hasting, 461 U.S. 499, 505 (1983), he argues that imposition of the Tenth Circuit’s disclosure rule is supported by the courts’ “supervisory power.” We think not. Hasting, and the cases that rely upon the principle it expresses, deal strictly with the courts’ power to control their own procedures. See, e. g., Jencks v. United States, 353 U.S. 657, 667-668 (1957); McNabb v. United States, 318 U.S. 332 (1943). That power has been applied not only to improve the truth finding process of the trial, see, e. g., Mesarosh v. United States, 352 U.S. 1, 9-14 (1956), but also to prevent parties from reaping benefit or incurring harm from violations of substantive or procedural rules (imposed by the Constitution or laws) governing matters apart from the trial itself, see, e. g., Weeks v. United States, 232 U.S. 383 (1914). Thus, Bank of Nova Scotia v. United States, 487 U.S. 250 (1988), makes clear that the supervisory power can be used to dismiss an indictment because of misconduct before the grand jury, at least where that misconduct amounts to a violation of one of those “few, clear rules which were carefully drafted and approved by this Court and by Congress to ensure the integrity of the grand jury’s functions,” United States v. Mechanik, 475 U.S. 66, 74 (1986) (O’Connor, J., concurring in judgment). ^[n.6]

We did not hold in Bank of Nova Scotia, however, that the courts’ supervisory power could be used, not merely as a means of enforcing or vindicating legally compelled standards of prosecutorial conduct before the grand jury, but as a means of prescribing those standards of prosecutorial conduct in the first instance — just as it may be used as a means of establishing standards of prosecutorial conduct before the courts themselves. It is this latter exercise that respondent demands. Because the grand jury is an institution separate from the courts, over whose functioning the courts do not preside, we think it clear that, as a general matter at least, no such “supervisory” judicial authority exists, and that the disclosure rule applied here exceeded the Tenth Circuit’s authority.

So what does that mean to the Presentment issue?  It means that no Federal regulation can trump the Constitution.  The Constitution says we the people can bring “Presentments”.  A footnote to a Rule of procedure that attempts to set aside a Constitutional power granted to we the people has no legal effect whatsoever.

Then check out Scalia as he goes on to cement the fact that the Grand Jury is a separate branch of Government:

“[R]ooted in long centuries of Anglo American history,” Hannah v. Larche, 363 U.S. 420, 490 (1960) (Frankfurter, J., concurring in result), the grand jury is mentioned in the Bill of Rights, but not in the body of the Constitution. It has not been textually assigned, therefore, to any of the branches described in the first three Articles. It ” `is a constitutional fixture in its own right.’ ” United States v. Chanen, 549 F. 2d 1306, 1312 (CA9) (quoting Nixon v. Sirica, 159 U.S. App. D.C. 58, 70, n. 54, 487 F. 2d 700, 712, n. 54 (1973)), cert. denied, 434 U.S. 825 (1977). In fact the whole theory of its function is that it belongs to no branch of the institutional government, serving as a kind of buffer or referee between the Government and the people. See Stirone v. United States, 361 U.S. 212, 218 (1960); Hale v. Henkel, 201 U.S. 43, 61 (1906); G. Edwards, The Grand Jury 28-32 (1906). Although the grand jury normally operates, of course, in the courthouse and under judicial auspices, its institutional relationship with the judicial branch has traditionally been, so to speak, at arm’s length. Judges’ direct involvement in the functioning of the grand jury has generally been confined to the constitutive one of calling the grand jurors together and administering their oaths of office. See United States v. Calandra, 414 U.S. 338, 343 (1974); Fed. Rule Crim. Proc. 6(a).

The grand jury’s functional independence from the judicial branch is evident both in the scope of its power to investigate criminal wrongdoing, and in the manner in which that power is exercised. “Unlike [a] [c]ourt, whose jurisdiction is predicated upon a specific case or controversy, the grand jury `can investigate merely on suspicion that the law is being violated, or even because it wants assurance that it is not.’ ” United States v. R. Enterprises, 498 U. S. ___, ___ (1991) (slip op. 4) (quoting United States v. Morton Salt Co., 338 U.S. 632, 642-643 (1950)). It need not identify the offender it suspects, or even “the precise nature of the offense” it is investigating. Blair v. United States, 250 U.S. 273, 282 (1919). The grand jury requires no authorization from its constituting court to initiate an investigation, see Hale, supra, at 59-60, 65, nor does the prosecutor require leave of court to seek a grand jury indictment. And in its day to day functioning, the grand jury generally operates without the interference of a presiding judge. See Calandra, supra, at 343. It swears in its own witnesses, Fed. Rule Crim. Proc. 6(c), and deliberates in total secrecy, see United States v. Sells Engineering, Inc., 463 U. S., at 424-425.

True, the grand jury cannot compel the appearance of witnesses and the production of evidence, and must appeal to the court when such compulsion is required. See, e. g., Brown v. United States, 359 U.S. 41, 49 (1959). And the court will refuse to lend its assistance when the compulsion the grand jury seeks would override rights accorded by the Constitution, see, e. g., Gravel v. United States, 408 U.S. 606 (1972) (grand jury subpoena effectively qualified by order limiting questioning so as to preserve Speech or Debate Clause immunity), or even testimonial privileges recognized by the common law, see In re Grand Jury Investigation of Hugle, 754 F. 2d 863 (CA9 1985) (same with respect to privilege for confidential marital communications) (opinion of Kennedy, J.). Even in this setting, however, we have insisted that the grand jury remain “free to pursue its investigations unhindered by external influence or supervision so long as it does not trench upon the legitimate rights of any witness called before it.” United States v. Dionisio, 410 U.S. 1, 17-18 (1973). Recognizing this tradition of independence, we have said that the Fifth Amendment’s “constitutional guarantee presupposes an investigative body `acting independently of either prosecuting attorney or judge’. . . .” Id., at 16 (emphasis added) (quoting Stirone, supra, at 218).

This is what you need to run with the ball, USA.  If your Government is breaking laws, then start using the law that is available to you.

ISSUE PRESENTMENTS AS A FEDERAL GRAND JURY EMPOWERED BY THE 5TH AMENDMENT.

USE IT OR LOSE IT.

“NATURAL BORN CITIZEN”: DEFINED BY 14TH AMENDMENT FRAMERS AND IN TREATISE RELIED ON BY SCALIA

[UPDATE – 6:20 PM Sat. Dec. 13, 2008]: Just became aware of Plains Radio’s gross statements regarding Barack Obama’s health.  Leo Donofrio will not be on Plains Radio again.

[UPDATE – 11:10 AM Sat. Dec 13, 2008]: Yesterday, a SCOTUS clerk told Cort his decision wouldn’t be released untill Monday.  This was at approximately 11:00 AM while the Justices were still behind closed doors.

Tonight I will publish a point by point breakdown explaining why the application I prepared for Cort’s brief was so much stronger than the one in my own.]

PREAMBLE

This week has been quite enlightening as to the blatantly obvious fact that our “Fourth Estate” press corps have been transmogrified into propaganda ponies polly wanna crackering whatever may be handed down to them from “The One Corporation – your source for everything…” (cue eery theme tune).  They don’t report the news anymore. No.  Now they tell you what they want the news to be.  There’s a huge difference.

For the record, my law suit was brought to remove three candidates from the ballots – three candidates who have big Constitutional issues as to their eligibility.

At the time of his birth, Obama was a British/Kenyan citizen by descent of his father.  Because I pointed out pesky international laws which governed his citizenship due to the fact that a father has every legal right in the world to have the laws of his nation apply to his son, I have been labeled a conspiracy freakoid of nature.

Never mind that I included demands for Panama John McCain and the Nicaraguan born Roger Calero to also be removed from our ballots.  No, they don’t want to talk about that do they – because it would blow the “he’s just another Obama hater” mantra clear out of play.

A citizen (me) raised the Constitutional issue of first impression as to the meaning of “natural born Citizen” in Article 2, Section 1, of the United States Constitution – that ultimate pesky legal document for those who would rather “be” the law instead of following it.

What are the Fourth Estate propagandists worried about?  Thou doth protest too much.  Me thinks so.  Why?  Because the law is against their man – it indicates Barack Obama is not a natural born Citizen of the United States.  And most of the media pundits have basically agreed by default.  I say this because when yelling and mocking the issue, their main argument is not that the law is on their side (they know it isn’t), but rather that the law shouldn’t be discussed at all.

PRESIDENTIAL PRECEDENT

Other than the fraud perpetrated by Chester Arthur (see prior stories), every post grandfather clause President of this nation was born in the United States to parents who were US Citizens.  In their wisdom, they recognized the danger in having people born under the jurisdiction of another country taking the role of commander in chief.

They did this recognizing that multitudes of loyal men wouldn’t be eligible, but they also knew that they couldn’t see into the soul of all possible candidates, so just to be safe, they put a restriction in the Document which is there to protect us from a sneak attack in the oval office by somebody who might have loyalty to another nation.  The framers themselves were good men, loyal to this infant nation, but they recognized that people like them had to be excluded from future Presidential eligibility as an order of protection.  McCain and Obama know that.

And in my stay application, I never accused either man of disloyalty.  Quite the opposite.  Had any of these morose media maniacs actually read the papers I filed with the United States Supreme Court (before election day), this is what they would have found as to Barack Obama:

As regarding the issues surrounding Senator Obama’s birth certificate, and if it may please this Honorable Court, I would point out that Senator Obama has not  been presented with a genuine legal request from a party with proper standing to command him in any way, and therefore he has no legal responsibility to submit or to bend his integrity.  And for that, he certainly deserves respect.

Appellant believes that if Senator Obama is presented with a legal request from a government authority sanctioned to make such request, that Senator Obama will respond accordingly and put this issue behind him forever.

That being said, petitioner regretfully submits that since candidate Obama was born to a Kenyan father, he also is not eligible to the office of President since he is not a “natural born citizen” by the Constitution.

As to John McCain they would have found this:

Senator John McCain is an American patriot who has valiantly suffered more for this country than most of us ever will.  He has shown bravery beyond that which the country has any right to ask, and it is with very deep and sincere regret that I respectfully request that this Honorable Court order the Secretaries of the several States to remove John McCain’s name from the ballots.

I couldn’t have shown the candidates more respect.  But both of them should have known that if either were to become President – despite the loyalty they have for this country – the dam would be broken and the waters of foreign influence would be forever capable of drowning our national sovereignty and placing our military in the hands of enemies from within.

IT’S NOT ABOUT OBAMA OR McCAIN – IT’S ABOUT WHO COMES NEXT.  THEY SHOULD HAVE KNOWN THAT AND FALLEN ON THEIR PRESIDENTIAL SWORDS TO PROTECT THIS COUNTRY.

The truly patriotic thing for both to do was pass the baton to another worthy candidate not burdened with eligibility issues.  I understand the lure of being President and all the power, glory, responsibility and possibility for enlightening change that entails.  But the precedent to be set is fraught with danger.  And the candidates knew that.

I suppose they’ve taken a view that the good they might bring to our Country far outweighs any risk from who may come next.  But knowing the slippery slope of history, only hubris could make such a call.

OBAMA’S ADMISSION

Like it or not, rich or poor, great or strong, Democrat or Republican, Obama was born under the jurisdiction of Great Britain via Kenya.  There is nothing conspiratorial about saying that.  Obama has it posted on his own web site. It’s this very definition which I included in Cort’s Wrotnowski’s brief.  Here’s what it says at Obama’s web portal, Fight The Smears:

When Barack Obama Jr. was born on Aug. 4,1961, in Honolulu, Kenya was a British colony, still part of the United Kingdom’s dwindling empire. As a Kenyan native, Barack Obama Sr. was a British subject whose citizenship status was governed by The British Nationality Act of 1948. That same act governed the status of Obama Sr.‘s children. (Emphasis added.)

There it is.  Obama is telling you his status was “governed” by a foreign jurisdiction.  This is no theory.  This is a fact.

I have always believed Obama was born in Hawaii.  I told numerous reporters that there was no way in hell Obama would post a fraudulent birth certificate at his web site.  I said that over and over, but they’re still lying about my position.  Why not tell the whole truth and nothing but the truth?  Is the truth now part of a conspiracy?

Instead of recognizing that a legitimate legal nexus exists for Obama’s eligibility to be questioned, the great bulk of main stream media outlets have pulled out all the stops to mock, attack, accuse, hate and discredit anybody willing to consider the law.

What have we come to?

The opposing media argument concerns the will of the people in the election and that the Supreme Court shouldn’t overturn the intent of 65 million voters.  It’s an argument that fails – if the candidates were not Constitutionally eligible then the election was a fraud no matter how many voted for Obama.

My law suit was meant to return the election to the Constitution.  It’s the Republican and Democratic parties that overturned the election stuffing two ineligible candidates down our throats with no regard whatsoever to the future precedent it would set.

The people are subservient to the Document and if we don’t keep it that way, we have plenty of historical examples throughout history detailing exactly what will happen to us if the Document is defeated.

Regardless, should the people demand that Constitutional restrictions in Article 2, Section 1, be removed from the Document, they can lobby their political representatives to introduce an amendment, and if such amendment were to be ratified by three-quarters of either the state legislatures, or of constitutional conventions specially elected in each of the states, then they can have any President they like.

But as long as Article 2, Section 1, is controlling law, it’s those who are trying to attack all review of it who are the conspiracy theorists.  All I did was ask the Supreme Court to rule on an issue which has caused multiple law review articles to be written and countless news reports and blogs to be published.  It has generally confused legal scholars for over two centuries.

“Ooh, look at that crazy conspiracy nut Donofrio,” they squawk.   Me so crazy.  Well, maybe I am a bit strange (Who the hell isn’t?) but not for my understanding of the natural born Citizen issue.  And that’s the only issue before the Honorable Court.

That being said, let’s now take a look at two established and respected legal sources which define the term “natural born Citizen” as a person who is born in the United States to parents both of whom are “citizens”.

NATURAL BORN CITIZEN DEFINED THROUGH HISTORY

I could understand rabid attacks if the legal theory I was relying upon had been thoroughly discredited by a Supreme Court decision or by statute, or even by historical texts, but it’s quite the opposite.  Beside 200 years of Presidential precedent, the great weight of authority supports the argument that Obama is not a natural born Citizen.

I understand the countering argument and I’ve welcomed debate of both sides of the issue in comments to this blog.  But most of the published arguments on the natural born Citizen issue are recently published law review articles which haven’t done a very good job of presenting the whole truth and nothing but the truth.

THE FRAMERS OF THE 14TH AMENDMENT

Despite popular belief, the 14th Amendment does not convey the status of “natural born Citizen” in its text.  It just conveys the status of “Citizen”.  And it’s very clear that in the pre-amendment Constitution, the Framers made a distinction between a “Citizen” and a “natural born Citizen”.  The requirement to be a Senator or Representative is “Citizen”, but the requirement to be President is “natural born Citizen”.

From the 14th Amendment:

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the State wherein they reside.”

But even as to this conveyance of citizenship, those who were responsible for drafting the 14th Amendment made it clear that – to them – the meaning of “subject to the jurisdiction thereof” meant subject only to the jurisdiction thereof.

Dr. John Fonte, Senior Fellow of The Hudson Institute had this to say about the issue at a Congressional hearing on dual citizenship from September 29, 2005:

The authors in the legislative history, the authors of that language, Senator Lyman Trumbull said, ”When we talk about ‘subject to the jurisdiction of the United States,’ it means complete jurisdiction, not owing allegiance to anybody else.” Senator Jacob Howard said that it’s ”a full and complete jurisdiction.”

This illustrates that Congress recently discussed the issue, and they can’t claim they were unaware. But we don’t have to take Dr. Fonte’s word for it. The following discussion by the various 14th Amendment Framers took place on the Senate floor.  I took it from P.A. Madison’s research at http://www.14thamendment.us (use his link for footnotes):

It is clear the framers of the Fourteenth Amendment had no intention of freely giving away American citizenship to just anyone simply because they may have been born on American soil.  Again, we are fortunate enough to have on the record the highest authority tell us, Sen. Lyman Trumbull, Chairman of the Judiciary Committee… and the one who inserted the phrase:

[T]he provision is, that ‘all persons born in the United States, and subject to the jurisdiction thereof, are citizens.’ That means ‘subject to the complete jurisdiction thereof.’ What do we mean by ‘complete jurisdiction thereof?’ Not owing allegiance to anybody else. That is what it means.

Then Madison quotes Sen. Howard, another Framer, concurring with Trumbull:

Sen. Howard concurs with Trumbull’s construction:

Mr. HOWARD: I concur entirely with the honorable Senator from Illinois [Trumbull], in holding that the word “jurisdiction,” as here employed, ought to be construed so as to imply a full and complete jurisdiction on the part of the United States, whether exercised by Congress, by the executive, or by the judicial department; that is to say, the same jurisdiction in extent and quality as applies to every citizen of the United States now.[3]

Mr. Madison continues with even more proof of what the 14th Amendment Framers meant:

Sen. Johnson, speaking on the Senate floor, offers his comments and understanding of the proposed new amendment to the constitution:

[Now], all this amendment [citizenship clause] provides is, that all persons born in the United States and not subject to some foreign Power–for that, no doubt, is the meaning of the committee who have brought the matter before us–shall be considered as citizens of the United States. That would seem to be not only a wise but a necessary provision. If there are to be citizens of the United States there should be some certain definition of what citizenship is, what has created the character of citizen as between himself and the United States, and the amendment says that citizenship may depend upon birth, and I know of no better way to give rise to citizenship than the fact of birth within the territory of the United States, born to parents who at the time were subject to the authority of the United States.[4]

No doubt in the Senate as to what the citizenship clause means as further evidenced by Sen. W. Williams:

In one sense, all persons born within the geographical limits of the United States are subject to the jurisdiction of the United States…All persons living within a judicial district may be said, in one sense, to be subject to the jurisdiction of the court in that district, but they are not in every sense subject to the jurisdiction of the court until they are brought, by proper process, within the reach of the power of the court. I understand the words here, ‘subject to the jurisdiction of the United States,’ to mean fully and completely subject to the jurisdiction of the United States.[5]

Madison saves for last the greatest authority on the issue:

Rep. John Bingham of Ohio, considered the father of the Fourteenth Amendment, confirms the understanding and construction the framers used in regards to birthright and jurisdiction while speaking on civil rights of citizens in the House on March 9, 1866:

[I] find no fault with the introductory clause [S 61 Bill], which is simply declaratory of what is written in the Constitution, that every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural born citizen…[6]

It’s important to note this statement was issued by Bingham only months before the 14th Amendment was proposed.

In conclusion, I would like to thank reader “John Boy” for pointing to Justice Scalia’s opinion in District of Columbia Et Al. v. Heller.  In that case, Justice Scalia took into consideration a certain historical legal reference:

The common references to those “fit to bear arms” in congressional discussions about the militia are matched by use of the same phrase in the few nonmilitary federal contexts where the concept would be relevant… Other legal sources frequently used “bear arms” in nonmilitary contexts.10

Now look at “footnote 10”:

E. de Vattel, The Law of Nations, or, Principles of the Law of Nature 144 (1792) (“Since custom has allowed persons of rank and gentlemen of the army to bear arms in time of peace, strict care should be taken that none but these should be allowed to wear swords”);

Since Justice Scalia cited to this legal textbook in March of 2008, it’s not outrageous to think he might also refer to “The Laws of Nations” on the natural born Citizen issue?

I’ll leave you now with the relevant textbook definition of natural born citizen. The following was published in 1758.  This definition, added to all of the above, certainly establishes a rational legal basis to hold that Barack Obama is not a natural born Citizen.  And more than that, it puts the burden on those who deny it to don the tin foil hat of despair and bring forthwith to the table of honest debate their own bed of authority to lie in:

§ 212. Citizens and natives.

The citizens are the members of the civil society; bound to this society by certain duties, and subject to its authority, they equally participate in its advantages. The natives, or natural-born citizens, are those born in the country, of parents who are citizens. As the society cannot exist and perpetuate itself otherwise than by the children of the citizens, those children naturally follow the condition of their fathers, and succeed to all their rights. The society is supposed to desire this, in consequence of what it owes to its own preservation; and it is presumed, as matter of course, that each citizen, on entering into society, reserves to his children the right of becoming members of it. The country of the fathers is therefore that of the children; and these become true citizens merely by their tacit consent. We shall soon see whether, on their coming to the years of discretion, they may renounce their right, and what they owe to the society in which they were born. I say, that, in order to be of the country, it is necessary that a person be born of a father who is a citizen; for, if he is born there of a foreigner, it will be only the place of his birth, and not his country.

A LITTLE MORE ON CHESTER ARTHUR FROM THE LIBRARY OF CONGRESS

Yesterday, after Cort filed the supplemental brief at the Supreme Court, we dropped by the Library of Congress and took a look at the index of papers for Chester Arthur. (Please see previous report.) Compared to most of the other Presidents, there’s barely anything on Chester.  The index is a skinny little pamphlet, thirteen pages long.  The introduction to the index begins with a letter from Chester A. Arthur III:

“You may be sure that I am as interested as you are in having the Arthur papers finally come to rest in the Library of Congress.  The ones that I have in my possession have traveled a good deal — over to Europe, back to Colorado, California, and now here.  During his lifetime, my father would never let anyone see them — not even me.  When they finally came into my possession.  I was amazed that there were so few…

Charles E. McElroy, the son of Mary Arthur McElroy who was my grandfather’s First Lady, tells me that the day before he died, my grandfather caused to be burned three large garbage cans, each at least four feet high, full of papers which I am sure would have thrown much light on history.”

It’s quite a dramatic start for a Library of Congress index document.  The intrigue continues as follows:

“For many years President Arthur was represented in the Manuscript Division by a single document… Beginning in 1910 and continuing to the present, successive chiefs of the division have done what they could do to assemble surviving Arthur manuscripts.  For the first of these chiefs, Gaillard Hunt, who in that year intitiated the search for the main body of Arthur Papers, there was little but discouragement as a result of his inquiries.  However, his persistence and what he was able to learn were to encourage his successors.

He wrote first to Col. William G. Rice and learned the address of Mrs. John E. McElroy, Arthur’s sister and official hostess during his administration.  Mr. Hunt wrote to her and learned from her that Chester A. Arthur, Jr., controlled the papers.  After several attempts, Mr. Hunt learned Mr. Arthur’s address and wrote to him.  The reply — written on March 13, 1915, five years after the search began — provided the first concrete but frustrating evidence:

‘I beg you will excuse my tardiness in replying to your letter of November 4th [1914].  The question of my father’s papers is a very sore subject with me.

‘These papers were supposed to be in certain chests which were stored on their receipt from Washington, in the cellar of 123 Lexington Avenue.  After my father’s death, they were removed, I believe, by direction of the executors to a store house recommended by Mr. McElroy at Albany.  Several years ago on making my residence in Colorado, I sent for these chests of papers and found in them nothing but custom house records of no particular value or importance.  Where the papers they were supposed to contain have vanished, is a mystery.’ “

The story just keeps getting stranger.

WROTNOWSKI APPLICATION REFERRED TO FULL COURT BY JUSTICE SCALIA – DISTRIBUTED FOR CONFERENCE ON DEC 12 – SUPPLEMENTAL BRIEF TO BE SUBMITTED TOMORROW

PRESS RELEASE: 12.08.08 7:20 pm

Cort Wrotnowski’s emergency application for a stay and/or injunction as to the Electoral College meeting on Dec. 15 was today referred to the full Court by the Honorable Associate Justice Antonin Scalia.  It has been distributed for Conference of Friday December 12.   The official case name is WROTNOWSKI v. BYSIEWICZ, United States Supreme Court Docket No. 08A469.

The Wrotnowski Supreme Court application was prepared by Leo Donofrio, Esq. and is centered on the same issue from Donofrio’s case which was discussed by the Supreme Court in its conference of December 5 – whether Barack Obama is not eligible to the office of President due to the fact that he was a British citizen at the time of his birth.

Tomorrow, Dec. 9 – Cort Wrotnowski will submit a supplemental brief concerning the newly discovered ineligibility of twenty-first President Chester Arthur due to his having been born as a British subject.   This is relevant to the case at hand in that Justice Gray – who wrote the seminal opinion in United States v. Wong Kim Ark – was appointed by Chester Arthur.

The Wong Kim Ark case involves an important historical opinion that SCOTUS Justices will certainly consider as to the Obama natural born citizen issue.

The recent discovery calls into question the motivations of both Arthur and Gray since Arthur’s father was a British subject not naturalized at the time of Chester’s birth.   In fact, William Arthur was not naturalized until 1843, fourteen years after Chester was born.  In the light of historical retrospection, Justice Gray’s decision in Wong Kim Ark seems tailor made to the circumstances of Arthur’s birth.

Chester Arthur was born in 1829.  The 14th Amendment wasn’t ratified until 1868, and Wong Kim Ark was decided in 1898.  But under United States law in 1829 it’s not clear that Arthur would have even been considered a United States citizen at the time of his birth, let alone a “natural born citizen” eligible to be President.  At best, he would have been a dual citizen of Great Britain and the United States.

It was proved earlier this week, by various articles in the Brooklyn Eagle printed circa 1880, and other authorities, that when Arthur was on the campaign trail as Garfield’s running mate he lied many times about his father’s emigration record, his parents’ life in Canada before coming to the United States, and his father’s age.   Chester also burned his papers and falsified his birth year.  It appears now that he was doing so to conceal the POTUS eligibility issue.

Every other President  (who didn’t become eligible under the Article 2, Section 1 grandfather clause) was born to American citizen parents in the United States.   The fact that he was a British subject at birth was first reported on Friday Dec. 5.

It must now be questioned whether the relationship between Chester Arthur and Justice Gray was influenced by Arthur’s eligibility problems and whether those issues effected Gray’s opinion and vote in Wong Kim Ark.

It must also be considered that the integrity of Justice Gray’s SCOTUS appointment might have been called into question if Chester Arthur’s POTUS ineligibility issues had become known.

 

All of the above is relevant to the issue of whether Barack Obama is a natural born citizen in that the core Supreme Court opinion in Wong Kim Ark must now be re-evaluated in lieu of the fact that the Justice who wrote the opinion was appointed by Chester Arthur.

Leo Donofrio will accompany Cort Wrotnowski to Washington D.C. tomorrow and both will be available for comment at 11:00 AM on the steps of the Supreme Court.  This is not a rally, protest or vigil.   If the media would like to discuss this historical brief and the issues discussed above, Donofrio and Wrotnowski will be available to answer any questions thereto.

Leo C. Donofrio, Esq.

Cort Wrotnowski

HISTORICAL BREAKTHROUGH – PROOF: CHESTER ARTHUR CONCEALED HE WAS A BRITISH SUBJECT AT BIRTH

December 6, 2008  6:36 PM

[I have collaborated on this with my sister and historian Greg Dehler, author of  “Chester Allan Arthur”, Published by Nova Science Publishers, Incorporated, 2006  ISBN 1600210791, 9781600210792  192 pages. ]

I’ve been forwarded the actual naturalization record for William Arthur on microfiche, obtained from the Library of Congress.   He was naturalized in New York State and became a United States citizen in August 1843.

Chester Arthur perpetrated a fraud as to his eligibility to be Vice President by spreading various lies about his parents’ heritage.  President Arthur’s father, William Arthur, became a United States citizen in August 1843.  But Chester Arthur was born in 1829.  Therefore, he was a British Citizen by descent, and a dual citizen at birth, if not his whole life.

He wasn’t a “natural born citizen” and he knew it.

We’ve also uncovered many lies told by Chester Arthur to the press which kept this fact from public view when he ran for Vice President in 1880.  Garfield won the election, became President in 1881, and was assassinated by a fanatical Chester Arthur supporter that same year.

How ironic that the allegations  started by Arthur Hinman in his pamphlet entitled, “How A British Subject Became President”, have turned out to be true…but not for the reason Hinman suggested.

Hinman alleged that Arthur was born in Ireland or Canada as a British subject.   It was bunk.  It’s been definitively established that Chester Arthur was born in Vermont.   But Hinman turns out to be correct anyway since Chester Arthur was a British citizen/subject by virtue of his father not having naturalized as a United States citizen until Chester Arthur was almost 14 years old.

That means Chester Arthur was a British subject at the time of his birth.

We’ve uncovered news clips exposing a thorough trail of lies, all of which served to obscure Chester Arthur’s true history of having been born as a British citizen.

Chester Arthur’s lies came during his Vice Presidential campaign in 1880.  His fraudulent attempt to obfuscate family history provides context and evidence that in 1880 it was recognized that having been born as a British citizen would make one ineligible to be President or VP.  His falsification of family history indicates he was aware of POTUS ineligibility.

HISTORICAL CONTEXT

Chester Arthur was in politics at the time of the 14th Amendment’s ratification.  He was a lawyer and a politician while the 14th Amendment was being debated.  It was ratified in 1867.  In that same year Chester Arthur rose to become chairperson of the Executive Committee of the State Republican Committee.   He would have been fully cognizant of the natural born citizen issue and that should he ever run for POTUS or VP, problems could arise.

He would have known that if anybody found out his father naturalized after he was born, he could never be President or Vice President.

CHESTER’S LIES

The definitive biography on Chester Arthur is “Gentleman Boss” by Thomas Reeves.  It’s an exhaustive reference.  Many of the blanks in Chester Arthur’s legend were filled in by this book which utilized interviews with family members and authentic documents like the Arthur family Bible.   It was a necessary work since old Chester Arthur was a very wily protector of his strange history.  He burned all of his papers. (See page 2365.)

“Gentleman Boss” establishes, on page 4, that Chester Arthur’s father William was born in Ireland, 1796, and emigrated to Canada in 1818 or 1819.  His mother Malvina was born in Vermont and his parents eloped in Canada in 1821.  They had their first child, Regina, in Dunham, Canada on March 8, 1822.

By no later than 1824, the Arthur family had moved to Burlington, Vermont.  Their second child Jane was born there on March 14, 1824.   Chester Arthur was their fifth child, and he was born on October 5, 1829.   Reeves established these facts (and the correct date of Chester Arthur’s birth) from the Arthur family Bible.

From “Gentleman Boss”, page 202 and 203:

“…Hinman was hired, apparently by democrats, to explore rumors that Arthur had been born in a foreign country, was not a natural-born citizen of the United States, and was thus, by the Constitution, ineligible for the vice-presidency.  By mid-August, Hinman was claiming that Arthur was born in Ireland and had been brought to the United States by his father when he was fourteen.  Arthur denied the charge and said that his mother was a New Englander who had never left her native country — a statement every member of the Arthur family knew was untrue.”

Arthur’s mother had lived in Canada with her husband and even had her first child there.

In the Brooklyn Eagle newspaper, an article interviewing Chester Arthur about Hinman’s accusations was published on August 13, 1880.  In that article, Chester Arthur defended himself as follows:

“My father, the late Rev. William Arthur, D.D., was of Scotch blood, and was a native of the North of Ireland.  He came to this country when he was eighteen years of age, and resided here several years before he was married.”

This was another blatant lie.   His father emigrated from Ireland to Canada at the age of 22 or 23.   William Arthur didn’t come to the United States until sometime between March 1822 – when his first child was born in Dunham, Canada – and March 1824 – when his second child was born in Burlington, Vermont.  The youngest he could have been when he came to Vermont was 26.

On August 16, 1880 Chester Arthur told the Brooklyn Eagle newspaper that at the time of his birth, his father was forty years old.  Another blatant lie.  His father would have been only thirty-three years old when Chester was born.

In that same article he lied that his father settled in Vermont and reiterated the lie that William came here at the age of eighteen.  This age discrepancy was exposed in the August 19, 1880 edition of the Brooklyn Eagle in an article written by Hinman .

It was very convenient for Arthur that Hinman kept the focus on the extraordinary and false claim – that Arthur was born abroad – while the more subtle and true eligibility issue  stayed hidden in plain site.

FATEFUL FACTS

I contacted Greg Dehler a few days ago after finding a reference in his Chester Arthur biography which said William Arthur became a citizen in 1843.   I wrote to Greg and asked him about the reference.  As fate would have it, Mr. Dehler, after checking his notes, wrote back to me to say that he got it from Thomas Reeves’ book, “Gentleman Boss”.

I went to the library the next day and devoured the Reeves book.  But the reference to William’s naturalization was not there.   Greg also knew I was interested in the Hinman scandal and pointed me to the Brooklyn Eagle search engine from the Brooklyn public library.

I began poking around and discovered a few of the lies mentioned above.

Earlier today I was telling my sister that this matter of Chester Arthur having falsified his parents’ personal history might lead to a very important revision of history.  I suggested we put together an outline of a book as we might be able to prove that Chester Arthur was a fraudulent President and that would be quite a story.  My sister thought I was jumping the gun a bit in that we really needed to define when William Arthur was naturalized before we could get excited.

About an hour later I received an email from Greg Dehler.  I’ll let you read it:

Leo,

Needless to say I was more than a little embarrassed that you could not locate the reference in Reeves. I thought that was odd because my note concerning William Arthur was with the Reeves notes. I conducted a more thorough search and found the source. It was in the Chester A. Arthur Papers (what is left of them at least) at the LOC. I own the microfilm reels and made a copy for you which is attached. The Washington County Clerk in NYS dates it August 31, 1843. How does this affect Chet?

Greg

I almost fell off my chair when I downloaded the William Arthur naturalization PDF and was staring at the shifting sands of history.

Chester Arthur had something to hide.

He had all of his papers burned which was very odd for a President.

Arthur lied about his mother’s time in Canada.  He lied about his father’s time in Canada.  He lied about his father’s age plus where and when he got off the boat from Ireland.  By obscuring his parents’ personal history he curtailed the possibility that anybody might discover he was born many years before his father had naturalized.

When Chester runs for VP, Hinman comes along essentially demanding to see Chester’s birth certificate to prove he was born in the United States.  This causes a minor scandal easily thwarted by Chester, because Chester was born in Vermont…but at the same time, the fake scandal provides cover for the real scandal.

Is this the twilight zone?

William Arthur was not a naturalized citizen at the time of Chester Arthur’s birth, and therefore Chester Arthur was a British subject at birth and not eligible to be Vice President or President.

Chester Arthur lied about his father’s emigration to Canada and the time his mother spent there married to William.   Some sixty years later, Chester lied about all of this and kept his candidacy on track.  Back then it would have been virtually impossible to see through this, especially since Arthur’s father had died in 1875 and had been a United States citizen for thirty-two years.

And without knowledge of his father’s time in Canada, or the proper timeline of events, potential researchers in 1880 would have been hard pressed to even know where to start.

Reeves proved that Arthur changed his birth year from 1829 to 1830.  I don’t know if that would have protected recorded information.  It’s another lie.  I just don’t know what it means.

Because Chester Arthur covered up his British citizenship, any precedent he might have set that the country has had a President born of an alien father is nullified completely as Chester Arthur was a usurper to the Presidency.  He wouldn’t have been on the ticket if it was public knowledge.   Nobody knew Arthur was a British subject because nobody looked in the right place for the truth.

And it’s no precedent to follow.

Leo C. Donofrio  COPYRIGHT 2008

THE RELEVANT OBAMA ADMISSION

THE RELEVANT OBAMA ADMISSION

At Barack Obama’s web site, the following admission:

“FactCheck.org Clarifies Barack’s Citizenship

‘When Barack Obama Jr. was born on Aug. 4,1961, in Honolulu, Kenya was a British colony, still part of the United Kingdom’s dwindling empire. As a Kenyan native, Barack Obama Sr. was a British subject whose citizenship status was governed by The British Nationality Act of 1948. That same act governed the status of Obama Sr.‘s children…’ ”

Read that last line again.

“That same act governed the status of Obama Sr.‘s children…”

That’s an admission that Great Britain “governed the status” of Barack Obama, Jr.  Brack Obama has chosen to highlight this on his own volition.

And this leads to the relevant question:

HOW CAN A NATURAL BORN CITIZEN’S STATUS BE “GOVERNED” BY GREAT BRITAIN?

A natural born citizen’s status should only be governed by the United States.  This is the core issue before the Supreme Court of the United States.

JONATHAN TURLEY CORRECTS BLOG – THANK YOU PROF. TURLEY

[UPDATE:] JONATHAN TURLEY HAS CORRECTED HIS BLOG AND POSTED MY LETTER TO HIM.  PROPER RESPECT TO MR. TURLEY FOR TAKING AFFIRMATIVE ACTION TO CORRECT THE PUBLIC RECORD.

“Constitutional law Professor Jonathan Turley will appear on MSNBC’s count down tonight and according to his blog he’ll be discussing this case.  Unfortunately …” SNIP

I’ve snipped my original post.  No point leaving the old post up.