This evening, Leo Donofrio, Plaintiff in Donofrio v. Wells, reports that he has released the first part of his legal briefing stating his opinion of challenging the President’s authority via a prerogative writ known as quo warranto.

At this time, Mr. Donofrio will be working solo on this issue.

For the “illegitimizers” (my term for those who don’t believe there’s a need to enforce the Constitution’s eligibility requirements) out there, Mr. Donofrio points out a very interesting aspect of law:

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.

The full posting is below…

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, we have identified 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 OUST 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 oust 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, theremust 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 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]

-Phil