Quo Warranto: Donofrio, Apuzzo Team Up on Challenging the President’s Authority

by 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.

-Phil

There are 34 comments in this article:

  1. 03/4/2009Jackie Smith says:

    Phil—Did these two attorneys get their idea of how to pursue BO from Dr. Taitz?? It seems to me that she started this same type of “Quo Warranto” last week with her military case and some Representatives from Tennessee?? She sent something similiar to Eric Holder from what I saw at her website.

  2. 03/4/2009RobL says:

    I could be wrong, but it seems difficult to believe Holder would do anything which might jeopardize his own position as AG. Would not his very appointment as AG be in question once Soetoro is found ineligible? Unless he finds an unusual level of morality, for these lifer government types, my guess is he would do everything in his own power to quash this. Better luck with Taylor, no?

    Another question. It would seem this is an appropriate direction to proceed, but would there be some reason to introduce the adoption by Lolo Soetoro too, and the possibility that this man is not even a U.S. citizen?

  3. 03/4/2009ch says:

    This is interesting. I thought it was Donofrio who first said publcly that active military were needed for a lawsuit to have success. Active military stepped forward. Now he says they should not get involved, they might be court martialed. Rather confusing. I truly admire the active military, who I know knew full well the risk they were taking, and decided that that risk was worthwhile. Any military subject to “court martial” for upholding their oath, should be protected by all citizens, for those are the only people who have stood with conscience over personal security. I would have hoped that instead Donofrio would offer his services to any military threatened in any way for upholding their oath.

  4. 03/4/2009juriggs says:

    it’s our very own “dream team”. I sincerely wish them the best in their efforts, and would be, of course, happy to sign my name to the petition, should the need arise.

  5. 03/4/2009Phil says:

    Jackie Smith,

    According to the posting, Mssr’s. Donofrio and Apuzzo may be dealing with sub-sets of Plaintiffs from Dr. Taitz’ knowledge or other third parties.

    It sounds like a multi-pronged approach to me.

    -Phil

  6. 03/4/2009Phil says:

    ch,

    I think you’re generalizing too much of what Mr. Donofrio has said.

    The context of Mr. Donofrio’s warnings came about after WorldNetDaily erroneously reported — and Drudge picked up — that 1st Lt. Easterling was actually going to defy orders from the President (in reality, his letter was actually questioning the authority of the President and never specifically stated that a given action was going to be defied). Therefore, Mr. Donofrio was stating that because of the misrepresentation on WorldNetDaily’s part (and, to be fair, WND did change the headline), he was fearing actual and/or potential retribution on the part of the 1st Lt. and/or other military personnel.

    -Phil

  7. 03/4/2009Bryan says:

    If it comes to a petition of citizens, it is imperative they be vetted for assured citizenship. Otherwise it could lead to a technicality which might be used as a delay or dismissal tactic. Acorn comes to mind. Also with BHO signing legislation now, any citizen should have standing to show direct harm in numerous ways. Additional tax or debt liability, devaluation of the dollar from massive dept apportioned, etc.

  8. 03/4/2009Bob says:

    Of course, there’s this little problem:

    ”An interested person within the meaning of the provisions of the District Code in regard to quo warranto proceedings is one who has an interest in the office itself peculiar to himself whether the office be elective or appointive.”

    Newman v. United States ex rel. Frizzell, 238 U.S 94 (1915) (emphasis added)
    http://supreme.justia.com/us/238/537/

    Now Donofrio is aware of Newman:
    http://naturalborncitizen.wordpress.com/2009/03/03/quoa-warranto-a-new-hope-military-can-now-retreat-in-peace/#comment-5230

    Whether Donofrio and Apuzzo can argue around some rather unambiguous text remains to be seen.

    Newman also contains this nugget:

    “That general public interest is not sufficient to authorize a private citizen to institute such proceedings; for if it was, then every citizen and every taxpayer would have the same interest and the same right to institute such proceedings, and a public officer might, from the beginning to the end of his term, be harassed with proceedings to try his title.”

    The precedent is prescient.

  9. 03/4/2009Phil says:

    Bryan,

    You said, “If it comes to a petition of citizens, it is imperative they be vetted for assured citizenship.”

    That’s exactly why I believe that State-based initiatives are likely the best way to go on eligibility.

    -Phil

  10. 03/4/2009Phil says:

    Bob,

    Excellent points.

    -Phil

  11. 03/4/2009ch says:

    Thanks, Phil, I hope so. I imagine Easterling thought about all the ramifications and decided that to risk everything related to his career was not so different than giving his life on the battlefield, if that is what was necessary to uphold the Constitution. He stands high on the ladder of Courage. Actually, it would seem a “court martial” would be perfect…because when the military person showed that he acted according to conscience, to uphold his oath, and this was a higher duty than orders, since the President was ineligible according to natural born, from all evidence available, the court martial would force the President to defend himself. I imagine Easterling thought this through and was willing to stand in a law of court martial, to challenge the President. That would be my thinking, if in the military, and facing this. I would rather be court martialed than serve someone who was not only ineligible, but was looking more and more like not even a citizen. Personally, I hope there are a lot of military willing to face court martial rather than follow the orders of a false president. The more involved, the stronger their stand. It shows how Germany got intimidated into silence, by fear of court martial, imprisonment, and death, if you did not follow orders even when orders against conscience.

  12. 03/4/2009David E. says:

    It sounds like Obama may eventually have to answer his critics. Whether that happens peacefully or not is still up in the air.

    It seems that Donofrio et al have a pretty compelling case with this one. My question is whether the court will accept the petition. That remains to be seen. We know the track-record of the courts to date.

    Do you have any idea about how long it could take before a case is prepared and a petition is submitted?

    David,
    RationalLiberty.com

  13. 03/4/2009Dean says:

    What I don’t understand about all this is,the rules are stated when you apply for a government job. And you have to fill out a form. Does that not also hold true for senators, president, etc. ???? how can our government be so dumb as to not have you show proof before you can apply for any government job??

  14. 03/4/2009Bryan says:

    If Holder is as smart as he thinks he is, the best thing he could do to protect his appointment and endear himself with patriots and future administrations would be to proceed with this matter to show his unbiased approach and level handedness in all legal matters to gain tremendous credibility.

  15. 03/4/2009da verg says:

    ch
    is talking about donofrio’s comments BEFORE those that Phil stated above. He appears to have flip flopped on the issue after the russian lawyer did something with her military client that he didn’t seem was the right way to publicly approach it. BTW that military person, as reported on WND, has been censored, muted, and gagged by the military.

    I agreee with ROBL above, what is in the best interest of HOLDER? Himself, being appointed by tyrant obama, or the American people? Time will tell, won’t it?

    “interested parties” can mean someone like McCain or Keyes, it appears from the definition below, not your ordinary citizen. So we are back to Keyes, since McCain is an idiot, dunce, and doddering old fool. AS Bob points out below. Or maybe someone can sign up that Nicaugran who ran on some ballots as interested party? How about Hillary? Or Romney? Seems like some dynamite is needed? Arnod? I hear is is an independent now that GOP threw him out. Need a headliner here, it seems.
    No?

  16. 03/4/2009Bryan says:

    Exactly! I was being a little facetious.

  17. 03/4/2009Phil says:

    David E.,

    Since Mr. Donofrio and I cross-post to each other’s blogs from time to time, I presume that update will be made public when it’s ready, and everyone will know about it.

    -Phil

  18. 03/4/2009Phil says:

    Dean,

    You said, “What I don’t understand about all this is,the rules are stated when you apply for a government job. And you have to fill out a form. Does that not also hold true for senators, president, etc. ????”

    No, it does not. In fact, it would be construed as unconstitutional, in my opinion, to add to the requirements to be a candidate for federal office.

    However, what would not be unconstitutional is legally enforcing what the Constitution already stipulates.

    -Phil

  19. 03/4/2009Bob says:

    Berg was the first to say he would seek a writ for pro warranto (but never did).

    Apuzzo raised the right of quo warranto as part of the 9th Amendment claim in his action.

    Taitz then sent her letter to the AG.

  20. 03/4/2009The Commentary - Quo Warranto: Donofrio, Apuzzo Team Up on Challenging the President’s Authority says:

    [...] Source: The Right Side Of Life [...]

  21. 03/4/2009Quo Warranto: Donofrio, Apuzzo Team Up on Challenging the President’s Authority | Sentinel Radio says:

    [...] Source: The Right Side Of Life [...]

  22. 03/4/2009Greg Goss says:

    From what I can tell he didn’t prove citizenship to be a US Senator. How can this happen? It just boggles the mind. All my prayers are with these guys.

  23. 03/4/2009JeffM says:

    Phil,

    There is a large distinction between a requirement for office and a policy for providing sufficient evidence to the government regarding this requirement.

    The U.S. Constitution doesn’t say you can’t have a process in place to ensure its requirements are met. It only says you can’t add requirements within any law or legal process that are not directly related to those requirements, or are in direct violation of those requirements.

    Here is one clear example of this:

    Amendment XXVI bars any denial of voting rights for any citizen over the age of 18
    However, it does not state the manner of how that rule is enforced or what legal process is completed by the voter to prove legal age of 18 or older; for example, if a state says you must obtain a certified, notarized copy of your birth certificate to vote in that state, it would still be 100% Constitutional
    Since the Constitution does not state the process for vetting voters, Amendment X grants the to legislate this process to the states
    Therefore, all states dictate the process for vetting voters (driver’s license, birth certificate, voter card, selective service, etc.)
    Because this right and therefore this Consititional amendment is not infringed by these processes, they remain legally Constitutional

    In the case of the POTUS, no state has provided a clear process for ensuring candidates meet Constitutional requirements. And since Amendment X clearly states that should the states not utilize their power to create a legal process, this power is reserved as a power granted to the people of the United States.

  24. 03/4/2009Practical Kat says:

    it would be construed as unconstitutional, in my opinion, to add to the requirements to be a candidate for federal office.

    That is exactly why I think Donofrio’s argument would fail on the merits.

    He wants to have the constitution construed as follows:

    “No person except a natural born Citizen who is the offspring of two citizens …. shall be eligible to the Office of President;”

    So he is adding an additional requirement not stated in the language used.

    “[E]very word employed in the constitution is to be expounded in its plain, obvious, and common sense, unless the context furnishes some ground to control, qualify, or enlarge it. Constitutions are not designed for metaphysical or logical subtleties, for niceties of expression, for critical propriety, for elaborate shades of meaning, or for the exercise of philosophical acuteness, or juridical research. They are instruments of a practical nature, founded on the common business of human life, adapted to common wants, designed for common use, and fitted for common understandings. The people make them; the people adopt them; the people must be supposed to read them, with the help of common sense; and cannot be presumed to admit in them any recondite meaning, or any extraordinary gloss.”

    -Justice Joseph Story on Rules of Constitutional Interpretation (1833)
    http://www.belcherfoundation.org/joseph_story_on_rules_of_constitutional_interpretation.htm

  25. 03/5/2009Sharon 2 says:

    I don’t see how the attorneys can use ordinary citizens as plaintiffs either in light of Newman; however, there is a part 2 of the legal brief forthcoming that may clear the issue up. Certainly Keyes would agree to serve as a plainitff if all else fails. Maybe Leo is enlisting all candidates who got their names on the ballot across the country?

    If this case does proceed, maybe Sandra Ramsey Lines will finally get to be challenged on her expert opinion concerning the Factcheck COLB.

    http://www.therightsideoflife.com/?p=2299

  26. 03/5/2009RealAmerica says:

    I believe the oath of office the AG takes is to serve the people of America, not necessarily the will of the President. That may be why the office is subjected to the approval process of Congress.

  27. 03/5/2009tminu says:

    as if the AG Holder is going to cooperate?

    what a waste

  28. 03/5/2009American Genie says:

    Excuse me, but it would seem that if one claimed citizenship to another country regardless of whether or not there existed dual citizenship, then “natural born” citizenship would be impossible.

    There is documented proof that the “dear leader” claimed British citizenship at birth. I’m no lawyer, but that disqualifies him. One simply cannot have foreign citizenship and be “natural born.”

    I guess, since Mel Martinez says it’s the voters who decide eligibility, that nobody spoke up about this before the election. Oh yeah, a lot of people did, but no national news outlets allowed coverage of it. Gee, imagine that!

    I do NOT think that if this is ever allowed to be heard on “merit” it will fail.

    Good luck to, and God bless Leo Donofrio and Mario Apuzzo!

    God bless America!

  29. 03/6/2009Jim Delaney says:

    So, to circumvent the courts which have no jurisdiction anyway, Taiz has (or is?//) submitting a quo warranto action to Holder while, coincidentally, this case is also being prepared by Apuzzi and Donofrio? Does Taiz name military officers as plaintiffs/relaters in the qw action? (Just trying to get on the same page. Have been out of the loop for awhile. sorry.) Thanks!

  30. 03/6/2009Phil says:

    Jim Delaney,

    Does Taiz name military officers as plaintiffs/relaters in the qw action? (Just trying to get on the same page. Have been out of the loop for awhile. sorry.) Thanks!

    To get updated, please see this posting.

    -Phil

  31. 03/6/2009GeorgetownJD says:

    Not only is Orly Taitz assembling a group of plaintiffs none of whom has standing, but she also plans to file her quo warranto suit in the wrong venue. The appropriate court is the United States District Court for the District of Columbia — the same court that just tossed Phil Berg’s disingenuous interpleader — where Taitz would have to be sponsored for admission pro hac vice. Suppose John Hemenway is up for another round as counsel of record?

  32. 03/7/2009Andrew Yu-Jen Wang says:

    [comment redacted for lack of relevancy to the current posting]

  33. 03/10/2009marge says:

    If AG were to recuse himself from this case, who would act in his place? He was not just appointed by Obama to be AG, he also was Deputy AG under Janet Reno in the Clinton administration. Clinton would not be SOS if Obama was found ineligible would she?

  34. 03/13/2009Mar 10 - Next Steps Conference Call « The Chalice Show says:

    [...] the Plaintiffs in Kerchner v. Obama. Attorney Apuzzo has also brought a count in a complaint for Quo Warranto, basically a “by what authority” [...]

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