Quo Warranto: Donofrio, Apuzzo Team Up on Challenging the President’s Authorityby Phil on 03/4/2009
Yesterday evening, Leo Donofrio, Plaintiff in Donofrio v. Wells, reported that he has agreed to get together with Mario Apuzzo, attorney for the Plaintiffs in Kerchner v. Obama, to begin exploring the ramifications of challenging the President’s authority via a prerogative writ known as quo warranto:
Today I had a five hour meeting with New Jersey attorney, Mario Apuzzo. The meeting was entirely focused on the issue of Quo Warranto.
Bottom line: we’ve identified a subset of plaintiffs who have a much easier path to standing to institute an action in Quo Warranto than active military. This subset of plaintiffs would not be exposed to possible court martial since they are not military plaintiffs so there is no prevailing desire to place this burden on the back’s of our military. Our military can retreat in peace on this issue. There is a new hope with a greater chance of success. This new hope has several layers of possibility. Attorney Apuzzo and I will be joining forces to see this matter receives the attention of proper Government officials.
I contacted Mario after both reading his pleadings in the Kerchner v. Obama case, and listening to his interviews. I was impressed by the level of detail his pleadings brought forth. The intelligence and passion for the Constitution shown by Mr. Apuzzo and his plaintiff, Mr. Kerchner, were evident in the interviews they have given. They both recognize that the main issue is centered on Obama being a British Subject and that the birth certificate issue, while important, is ancillary to Obama’s admission that the British Nationality Act of 1948 governed his birth status regardless of whether he was born in Hawaii.
They plead their case as to both issues and they did so in an original and convincing matter.
I have also heard them discuss John McCain shamefully allowing the myth to circulate that he was born on a military installation while his birth certificate and COLB both state he was born in Colon Hospital, Panama and not on a military base (which wouldn’t have qualified him anyway according to the State Department Foreign Affairs Manual and various case law).
Having respect for Mr. Apuzzo’s work, and knowing that he had brought one count in a complaint for Quo Warranto on behalf of Mr. Kerchner et al., I felt the need to share and discuss my research with Mario.
I respect Mr. Apuzzo’s efforts and felt we could possibly team up to both educate the public as well as educate other counsel while saving our military the trouble of being unnecessarily subjected to court martial.
I am very happy to report to you that Mr. Apuzzo and I have come to an agreement and we will be attempting to put the Quo Warranto issue squarely before the two people in our national government who have the statutory authority to request Obama substantiate his eligibility and to have a federal court determine whether Obama’s birth, subject to the British Nationality Act of 1948 disqualifies him to be POTUS.
Those two officials are not in the subset of plaintiffs I discussed above. As is designated by statute, both Attorney General Eric Holder and Jeffrey Taylor, US Attorney for the District of Columbia, may institute an action in Quo Warranto upon their own motion in the name of the United States. In fact, as per the relevant SCOTUS case law, while the decision to bring such an action is entirely in their discretion, both appear to have an ethical duty to do bring such an action at this time.
The statute requires any such action be instituted in the District Court for the District of Columbia. SCOTUS is not the proper venue to initially bring this action. The statue is very clear as to the DC District Court venue.
Furthermore, should either official institue an action in Quo Warranto on their own behalf, they may do so without leave of the court. If they do institute such an action, the issue must be brought to a hearing and detemined on the merits. The statute grants the AG and US Attorney undeniable power and respect on this issue.
If AG Holder and US Attorney Taylor refuse to institute an action in Quo Warranto on their own motion, the same statute provides for all “third persons” (any citizen) to request, via verified petition, that eith of those two officials institute an action in Quo Warranto on plaintiffs’ behalf, subject to leave of the District Court of DC.
If AG Holder and US Attorney Taylor refuse to bring the action on their own motion, Mario Apuzzo and I are committed to acquiring as large a set of plaintiffs as possible to petition these officials on plaintiffs’ behalf. “Third persons” are any citizens of the United States.
If the officials refuse consent to bring the action “ex relator” on behalf of such “third persons”, then the statute provides that any “interested persons” (a subset of “third persons”) may petition the court without the consent of the two officials. It is the SCOTUS definition of “interested persons” that helped us identify the subset referred to above.
SCOTUS has stated that the civil service laws might provide Quo Warranto standing to some plaintiffs. For example, SCOTUS case law and various Federal District and Court of Appeals cases, indicate that any Government employee who loses their job by RIF (reduction in force) employment termination might have standing to institute an action in Quo Warranto.
While AG Eric Holder might appear to have a conflict of interest since he was appointed by Obama, Jeffrey Taylor certainly has no conflict of interest as he was appointed by the Bush administration. Regardless, Eric Holder should should still be given the opportunity to do the right thing. I do not believe it is correct to ask him to recuse himself unless he refuses to bring an action for Quo Warranto.
Furthermore, the first attempt to raise the issue with both Attorney General Holder and US Attorney Taylor should be on behalf of the United States and not in relation to any plaintiffs.
I am in the process of writing a full legal brief on this issue. I’ve seen the statute mentioned and included in some pleadings. I’ve also seen a few references to relevant cases. But in order for lay people to understand the nuances of the law, these references need to be carefully explained in easy to understand terms. By doing so, I will provide clear understanding of why the military do not need to take this battle on.
Both Attorney Apuzzo and I expect other plaintiffs with tighter standing will come forth as this information is made clear to the public. We imagine that as Obama cuts programs and institutes federal salary caps, various plaintiffs will emerge who have better claims to standing. Of course we believe this action should be brought asap, but it’s even more important to get the public clearly educated as to the law and public policy concerns.
It would be best for the nation if AG Holder or US Attorney Taylor do this own their own motion. The issue of Obama’s eligibility for POTUS has already spread so far and wide from mainstrem media to tabloids and foreign news coverage. It’s not going away. Our military are subjecting themselves to court martial. A genuine controversy exists that should be settled by the federal statue which provides clearly for the disposition of just such a fact pattern.
Mr. Apuzzo and I decided I will publish this research far and wide and include it with a letter to AG Holder and US Attorney Taylor requesting that they institute an action for Quo Warranto on their own motion. This requires no plaintiffs.
A general petition containing the names of as many potential ordinary citizens as possible will be circulated and hopefully signed by every citizen concerned with this issue. No need for any designations other than US citizen is necessary to begin the process. If Holder and Taylor refuse to bring the motion on their own volition, the petition will be necessary for the next stage.
I can’t help but be skeptical about the likelihood of success as to any of these possibilities. However, now that Obama is in office as POTUS, Quo Warranto is virtually tailor made as the proper legal device available for justice. Furthermore, I would think that President Obama would like the chance to have his title to POTUS clear for the sake of history and for the sanity of the nation.
An action in Quo Warranto should ask for two simple issues to be resolved:
1. That a court determine whether Obama’s birth status having been governed by the British Nationality Act of 1948 prevents him from eligibility as a natural born citizen under Article 2, Section 1, Clause 5 of the US Constitution.
2. That Obama produce his long form birth certificate to AG Holder and/or US Attorney Taylor.
There is an important public policy consideration for this to happen. We have identified various cases which lay the groundwork for tens of thousands of potential plaintiffs to institute law suits to challenge various laws and orders signed by Obama based upon claims of POTUS ineligibility. And standing for such cases has not been held to be as stringent as an action in Quo Warranto. Only a month in office and we are already seeing signs of this potential floodgate being opened.
Furthermore, some military have already been subjected to potential court martial charges by ill advised public statements and reckless insinuation in the press that Presidential orders were defied.
While it may appear at first glance that soldiers have proper standing for an action in Quo Warranto, the relevant statutes and cases do not stand for that proposition. As you will see from the pending legal research, standing issues are hard to overcome and one would have to stretch the relevant case laws to make Quo Warranto standing work for military plaintiffs.
The military may have standing to challenge individual actions or orders, but such suits are not in the nature of quo warranto even though they might be based on ineligibility of Obama for POTUS. And any such action is probably better suited to military courts/tribunals etc. Such suits are “collateral” attacks on eligibility whereas actions in quo warranto are “direct” attacks. I will break down the relevant case law which explains these nuances.
Regardless, military involement isn’t necessary as we have identified a subset of plaintiffs who SCOTUS has directly made reference to for Quo Warranto standing. Soldiers are not part of this subset. Furthermore, the fact that a growing group of soldiers may have already subjected themselves to possible court martial by taking part in POTUS eligibility suits and PR campaigns thereto provides a greater force to the public policy interest inherent in the need for AG Holder and US Attorney Taylor to take the reigns and follow the statute written just for the purpose of settling this dispute.
If you are an active military person who is thinking of joining an action in Quo Warranto, please refrain form doing so until you have read the pending brief I will publish here.
Attorney Apuzzo and I will be working together on this public awareness campaign. I am very encouraged to have found another attorney who lives near me and who I believe in. I was very impressed but his intellect and the various nuances of this intricate field of law. I believe we will both learn from each other and together provide a more powerful perspective and education to the public as well as presenting the best possible pro bono legal action on behalf of any potential plaintiffs.
Hopefully, AG holder and US Attorney Taylor will step in and take the lead as is warranted by the following statute:
§ 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.
§ 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, or until the relator files a bond with sufficient surety, to be approved by the clerk of the court, in such penalty as the court prescribes, conditioned on the payment by him of all costs incurred in the prosecution of the writ if costs are not recovered from and paid by the defendant.
§ 16-3503. Refusal of Attorney General or United States attorney to act; procedure.
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. When, in the opinion of the court, the reasons set forth in the petition are sufficient in law, the writ shall be allowed to be issued by any attorney, in the name of the United States, on the relation of the interested person on his compliance with the condition prescribed by section 16-3502 as to security for costs.