30 thoughts on “Leo Donofrio Quo Warranto Legal Brief, Part 2 (with Exhibits)”

  1. I appreciate the elucidation of the points.
    As a citizen and patriot, it gives me no comfort.

    This suggests that an illegal president could occupy the office for 4 years. And get away with it.
    The power brokers must be so proud.

    Looking back, as this constitutional lawyer parties the values of this once great country away with careless abandon, It appears to have been staged all along.

    Who are the pawns and who are the players?

    I am going to go throw up now.

  2. I suppose after reading all of the legalese of this thornebush, the real questions are:
    1. Can the absence of evidence be considered evidence?
    2. Can the SCOTUS (or any court) after determining the requirements of the Constitution, illustrate the need for the credentials not provided, “demand” from the legislative branch action to remedy the crisis?
    3. If the AG or the US Attny decide to NOT bring a suit on behalf of the United States for any reason, what then is the remedy of a clear usurper?

    1. Robert DeBeaux,

      1. Can the absence of evidence be considered evidence?

      Regarding the Judiciary, only philosophically. The Court needs evidence to show cause of illegal action in order to proceed forward. This is one of the reasons why the Judiciary is so loathe to get into electoral disputes except where a case could be made that someone actually broke a law.

      Remember — being ineligible is what it is; there is no crime, per se, in being ineligible for the presidency. The problem all along is that there’s no legal enforcement of eligibility and so, hence, it’s very difficult to prove that Mr. Obama broke something that’s unenforceable. I think the lesson to be learned on this point is to go after the Legislative — at the federal and State levels — as hard as possible on this issue.

      2. Can the SCOTUS (or any court) after determining the requirements of the Constitution, illustrate the need for the credentials not provided, “demand” from the legislative branch action to remedy the crisis?

      Not directly, in my view. Based on the fact that the Judiciary has no “energy” to hear cases it brings unto itself, what a Plaintiff would need to do is bring to the Court evidence that the President is not a natural born citizen and ask, as a remedy to the situation, that the Court merely rule on what a natural born citizen is. Then, if such a definition precludes, say, Mr. Obama from its definition, then that would necessitate his being unentitled to the office.

      Therein lies the rub (and what most “illegitimizers” have been trying to say): what evidence exists that the President is not natural born? To answer that, how do you force the President to unseal his original 1961 birth certificate? That’s very difficult to do, as there are many legitimate laws that exist to protect such documentation for a variety of reasons. Yet, what if the original document does show that the President was born in Hawaii? There would have to be a convincing (to the Court) follow up argument regarding his nationalization at birth — that of being Kenyan “at birth.” This part would be easier to do, as key web sites already admit this aspect.

      Again, the “missing link” is an enforceability law.

      3. If the AG or the US Attny decide to NOT bring a suit on behalf of the United States for any reason, what then is the remedy of a clear usurper?

      Likely nothing via the Judiciary. If this turns out to be the case, then it’s a matter for the proverbial court of public opinion — mounting a grassroots effort to sway the Legislative at the State and federal level to “do something” about the issue. Ultimately, there is the possibility of impeachment (especially as there are no hard and fast standards for impeachment — a “high crime and misdemeanor” could be ineligibility to some), but that would require a significant shift in the political electorate. Better would be to focus on 2012 regarding eligibility, especially as some States are already considering eligibility statutes and what not.

      -Phil

  3. Hey everybody, thanks for the great discussion about the QW issue. I just want to say that it’s confusing you. The issue is really much more simple than you are all making it out to be. I understand that my blog is long and technical… but the language used is simple. Just read it a few times and the truth of the legal issues for and against removal will sink in.

    I will address your questions in my next blog, Part 3. But first let me give you a heads up:

    1. Congress is not delegating any serious authority by using Quo Warranto statutes… in that the District Court does not get to decide if a President should be removed. The Constitution grants exactly what qualifications are necessary. The statute simply asks the District Court to hold a hearing and or trial to determine “facts”, ie:

    1. how long somebody is a Citizen of the US is a matter of fact.
    2. how old somebody is
    3. where they were born

    You see? These are not issues where Congress exercises any authority. These are matters of simple fact. It only takes a miniterial act to determine the answer to these questions/

    The authority Congress has reserved for themselves is that which the Constitution grants them… they decide when the President shall be removed. By providing for the removal of the President in a Quo Warranto statute, they have reserved the right to remove him to themselves, no Court can remove him via common law quo warranto… at least that’s my impression. No “other” court can remove him that is.

    But the issue of whether a President is actually 35 years old is not something Congress has anything to do with. Either he is 35 years old or he isnt. Either he’s born in Hawaii or he isn’t born in Hawaii. That’s a matter of fact and not law. Congress recognized that truth and so gave the District Court of DC the ministerial duty (not authority) of doing the fact finding which is not and SHOULD NOT be political. Facts are not political but the fact of whether or not Obama was born in Hawaii certainly has been spun into being political.

    Furthermore, the issue of whether he is a natural born citizen is not an authority available to Congress. The Judiciary “interprets” the Constitution and laws that Congress enacts. The Congress does not have the authority to interpret the meaning of “natural born citizen”. Capisce? Separation of powers, you gotta love that.

    Furthermore, the treatise from 1923 is far behind the statute of 1963 wherein the local DC aspect of the statute was clarified. It still remains in Subchapter I of the DC Code, but Subchapter II has been enacted to deal exclusively with “Offices of the United States” whereas Subchapter I deals exclusively with local officers of the District of Columbia.

    Also, that treatise, when discussing whether quo warranto can remove a President, didn’t analyze the District of Columbia Code, but only analyzed the issue as to the all US district courts…the DC code, as modified in 1963 (40 years after this treatise) is the Congressional response to any doubts on this issue, Subchapter II makes it clear that this is not a local District matter or a matter for any of the other district courts of the US.

    Additionally, the treatise only analyzes the issue as to one special fact pattern:

    § 468a. Writs of quo warranto in the District Courts. 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. The District Courts of the United States have jurisdiction of all suits to recover possession of any office, except that of elector of President or Vice President, Representative in or Delegate to Congress, or member of a State legislature, 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 offering to vote, on account of race, color, or previous condition of servitude: Provided, That such jurisdiction shall extend only so far as to determine the rights of the parties to such office by reason of the denial of the right guaranteed by the Constitution of the United States, and secured by any law, to enforce the right of citizens of the United States to vote in all the States.”

    1. THE DISTRICT COURT OF THE UNITED STATES ARE NOT PROPER VENUES UNDER THE STATUTE ONLY THE DC DISTRICT COURT IS PROPER VENUE

    2. THIS TREATISE LIMITS ITS ANALYSIS TO “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”

    The title to office is not being challenged on the basis that anybody was denied the right to vote. The title to office is being questioned on the basis that Obama isn’t qualified under the Constitution.

    I would hope by now that people understand I am not trying to make a case which doesn’t exist. The minute Obama was not challenged by Congress and became Pres – elect, I was back at the poker and chess tables. But I didn’t know about QW at that time. Furthermore, this is not just a legal issue, it’s a common sense issue. Assuming for a second it was proved Obama is not qualified, does anybody really believe he should remain in office? What if he began flaunting it? Fact is, his flaunting it wouldn’t make any difference. Either the law says we can remove a usurper or it says we can’t.

    Now you will see, in the face of a statute which provides NO EXCEPTION to any US public office, that people want to imply an exception. Get ready for every devious word demon to come out from the woodworks.

    I don’t twist the truth or lie or bend the law. I hope people will look at my writing and see that I’ve never done that. The issue now isn’t whether Obama is eligible. That’s not the issue to be presented to the US attorney and AG, the issue is whether it’s in the best interest of the nation to settle the question and the statute gives them wide discretion and SCOTUS agrees… when they, in their own disrection feel an Quo warranto would benefit the nation, they may bring it.

    Even Obama ought to welcome a chance for clear title so history can be set in stone and not questioned and so that our military won’t be involved any further in this.

  4. Dear Phil –

    Leo is brilliant, his efforts worthy of laud. However, one who is, in fact, ineligible, is neither now, nor ever shall he be President of the United States, as long as American jurisprudence survives.

    The Constitution, having its roots in Natural Law, prohibits such a scenario.

    Joe

    1. Wonderful but the problem still remains WHO can declare him ineligible ? Because unless the competent legal entity declres him so nothing can happen.

      So far it seems the body the can question his qualification (i believe eligibility is one such qualification) is the US congress which by its action or inaction qualified him, so he is in fact the POTUS based on the US constitution.

      If the argument then is that the qualification so granted was wrong then persuasive arguments must be made to the US congress which must then disqualify him & thereafter remove him.

      I find something interesting in all the suits being brought, the plaintiffs are asking the court or the AG to help them find the documents to prove the allegation they’ve already made ??
      The court or AG (or US Attorney) cannot be the private Investigators for these plaintiffs, the plaintiff ought to be going to court WHEN they have the evidence the proves there case & not before because the court or AG is under no obligation to order discovery or be someone’s PI. I hope this cases wont give the wrong impression about how cases are brought, you dont go to court unless you have reasonable persuasive evidence to begin with

        1. Jim George,

          Aren’t all the birth certificate originals filed at the Federal Dept. of Commerce?

          While I don’t know about that, I do know that the Hawaiian Health Department has confirmed that they have a piece of paper on file for the President.

          -Phil

  5. The statues quoted are not “federal” statue but are DC statute. Donofrio is proposing that Congress delegated the right of removal of a president to an obscure DC statue. Congress did not and cannot do that.

    I can’t wait until this one gets before Judge Robertson. Of course, it will never make it that far because neither AG Holder nor any US attorney would touch this steaming pile of dog poop with a ten foot pole.

    1. Reality Check,

      The statues quoted are not “federal” statue but are DC statute. Donofrio is proposing that Congress delegated the right of removal of a president to an obscure DC statue. Congress did not and cannot do that.

      Two things:

      1. I stand corrected that this is a District of Columbia statute;
      2. Congress cannot delegate its authority? Please do explain, then, their delegating certain powers and authority to all of the various federal agencies. It’s the same principle (which — and here we may actually agree — I think is unconstitutional).

      -Phil

      1. Phil

        I will leave it to some of the lawyers to cite case law but the Supreme Court has ruled fairly consistently that Congress cannot delegate power to another branch of government. What Donofrio is proposing is that Congress delegated its power of removal of the president to the judicial branch by way of this obscure STATUTE (take that damn spell checker!) concerning rule of the District of Columbia. This is not going to hold water in any court.

        Let’s not forget that all of this depends on someone providing real evidence, not rumor, lies, wishful thinking, or speculation, that President Obama and the State of Hawaii are both lying about his place of birth.

        One other error in the discussion was made by either Donofrio or you on the interpretation of the word “qualification”. I cannot tell who wrote what in the article. In Title 3, the Congress specified who would act as president in case the election was not resolved by inauguration day. This comes from the use of the word in Amendment XX that changed the inauguration from March back to January. The amendment gave Congress the right to provide for an acting president in case the election of the president and VP were still ongoing and deadlocked in the Congress by January 20th. No other meaning could reasonably be inferred by reading the 20th amendment in context.

        The proposal of “quo warranto’ is a pretty good sign that the anti-Obama Birther crowd is just about out of ideas and are really grasping at straws.

        1. Reality Check,

          I will leave it to some of the lawyers to cite case law but the Supreme Court has ruled fairly consistently that Congress cannot delegate power to another branch of government. What Donofrio is proposing is that Congress delegated its power of removal of the president to the judicial branch by way of this obscure STATUTE (take that damn spell checker!) concerning rule of the District of Columbia.

          Apparently, some of this is simply a matter of interpretation. While I agree that Congress cannot delegate Legislative authority to, say, the President (and vice versa), we the People have allowed Congress to delegate certain aspects of their authority to other entities, the District of Columbia being one of them.

          The truth of the matter is that quo warranto — unless someone can specifically cite where this is not true — has been given only to DC for the purposes of challenging an officeholder’s title, but only in the name of the United States. In other words, there is certainly a process to make a challenge, and it appears to be open enough to allow for some semblance of standing, but not enough openness to allow every “Tom, Dick or Harry” to constantly be challenging an officeholder.

          As far as the rest of your commentary is concerned, I naturally would not expect you to be in any kind of positive concern regarding the potential outcome of actually using the quo warranto statute. The positive thing is that there may be one day when the government does something so heinous with which even you disagree that you would want something to be done about it and would be thankful to use every means at your disposal to right what you consider to be a wrong.

          -Phil

          1. To buy Donofrios’s argument on quo warranto you would have to believe that Congress could pass something by a simple majority and delegate a power that would normally take a 2/3 majority of the Senate to exercise. This would be a clear violation of the intent of the Constitution to make removal of a president extraordinarily difficult and not lightly undertaken.

          2. While I agree that Congress cannot delegate Legislative authority to, say, the President (and vice versa), we the People have allowed Congress to delegate certain aspects of their authority to other entities, the District of Columbia being one of them.

            It would be more accurate to say that courts have generally held that Congress cannot delegate its broad, important powers to other agencies, but it can delegate the detail work, subject to its continuing supervision. The decisions don’t use that language, but they follow that pattern.

            The District of Columbia is an enclave of the federal government, and the Constitution specifically says that Congress is in charge of running it; but it is also a fairly large city with all types of city-specific tasks to accomplish – it needs to have schools and sanitation and a police force and public libraries, and it needs its own set of regulations and officials to make that all work. So yes, Congress DID delegate most of the day-to-day tasks of running the city, in part through the enactment of the DC Code.

            The truth of the matter is that quo warranto — unless someone can specifically cite where this is not true — has been given only to DC for the purposes of challenging an officeholder’s title, but only in the name of the United States

            I think it was given to DC, and DC only, because the intent of the law was to provide local authority over lower-level office holders and bureaucrats who technically happen to be federal officers simply because DC is an entity of the federal government. In every other part of the country, quo warranto, where it exists, is something used and enforced in state courts… but as we all know, DC is not a state.

            Here’s a snippet of authority for the statement, [T]he 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.
            http://nativeborncitizen.wordpress.com/2009/03/06/no-quo-warranto-to-try-the-title-of-the-president-of-the-us/

            It comes from a treatise written in 1921, not a court decision, but it reflects how the quo warranto writ is generally understood. The current DC quo warranto statute was enacted in 1963 (with various revisions since then) — so legislative history is going to tell you that the law was written with the above limitation in mind.

  6. “I realize this is an entirely new theory of Constitutional law […]”

    The Attorney General or U.S. Attorney for D.C. would embrace this novel interpretation, uh, why? Is Donofrio aware that the President can fire both of them?

    I like the bit, from an actual Supreme Court decision, “there are so many reasons of public policy against permitting a public officer to be harassed with litigation over his right to hold office”. Donofrio says the U.S. District Court for the District of Columbia has jurisdiction on this, and that’s the court that dismissed Hollister v Soetoro with a memo that included, “it appears that the complaint in this case may have been presented for an improper purpose such as to harass”.

  7. Obama is a constitution lawyer and knows he was ineligible, and participated in making McCain eligible, with a definition he himself did not meet. He is a fraud and he is ineligible. I think some lawsuits against the Democratic Party for signing their candidate was eligible according to the Constitution, when he was not eligible, should go through the courts. They are national nonprofit corporation who participated in ballot fraud and stealing millions of dollars under false campaigning. We have the laws to handle this. Let them prove their candidate was indeed eligible. Let them prove they did not misrepresent their candidate and betray the public trust they have built up by always obeying the law in previous elections. Then sue Factchek for falsifying information and making inappropriate statements on the internet related to a political candidate. They would have to present their COLB in court, and it would have to be verified as true be court review of the backup document. It is a document referring to another, so the original has to verify the COLB. The Supreme Court interprets the Constitution and they are sworn to uphold the Constitution. Upholding means to take whatever actions to ensure nobody breaks the laws of the constitution. They uphold it through their interpretation. They are refusing to both uphold and interpret. They are not Supremee, except the one judge, who observes the law, and stayed out of the private meeting with Obama. There is only one judge on the Supreme Court.

    1. I totally agree with you about the Supreme Court. There is only one
      Associate Justice worth his salary. The rest have proven their partiality toward Obama by meeting with only him while cases involving him were pending. That is the reason I am pessimistic about all the cases against him. Sooner or later every one will be dismissed or end up before the Supreme Court on appeal with the
      same outcome as the ones already disposed of.

      As to your other point – the problem is Obama committed a crime – fraud – and it needs to handled as such. Charges must be brought by State or Federal authorities – private citizens can’t do it.
      Even a Quo Warranto action really needs support by the Department of Justice or the DC District Attorney for a high probability of success.

  8. Your statements under “1. Nowhere in the Constitution…” are a matter of opinion and not fact. Your argument implies that if someone sucessfully commits fraud to obtain the Office of President that person can not be prosecuted and removed by the Judicial Branch for the fraud. My opinion is that this can not be true.
    You write “the US Government recognizes his authority” but the US Government is the victim of a fraud. The law broken is the highest law of the land, the Constitution. The Supreme Court is charged with defending the Constitution. A proven criminal complaint against
    the person in the Office of the President would be enough for the Supreme Court to order the removal. Furthermore I believe once shown the proof the people of the United States would support such an action.

    1. Concerned Citizen,

      Your argument implies that if someone sucessfully commits fraud to obtain the Office of President that person can not be prosecuted and removed by the Judicial Branch for the fraud.

      Fraud is a totally separate issue from ineligibility. There is no crime for committing ineligibility; one simple is or is not entitled to the office. The next question is one of intent, which is where fraud could come into play, should the President be found to be ineligible.

      The Supreme Court is charged with defending the Constitution.

      The Supreme Court, as the highest entity of the Judiciary, is charged with interpreting the Constitution, their oaths of office notwithstanding.

      -Phil

      1. After thinking about your comment for awhile I guess I agree with you in that one who attains the Office of President by fraud and is ineligible can be tried and convicted for a crime
        by the Judicial Branch however it would take action by the Legislative Branch to remove that person from the Office of President. It’s a close point because I don’t see someone serving
        time for fraud and running the Executive Branch from jail.
        Of course if someone occupies the Office of President and is found to be ineligible ( his parents lied to him about his age
        and he is actually 34) that would not be actionable by the Judiciary but would require Legislative Branch action. This second scenario is not too likely in my opinion.

        Your point about the Supreme Court is well taken. Now I wonder what exactly does “defend the Constitution” in the oaths mean?

    2. I believe your statement is correct must be correct.

      What is the point of a sworn oath to uphold and defend if the swearer can have no authority to, “uphold and defend”?

      Jiim George

  9. I am hoping that something can be done to this imposter, he is killing our economy and wealth. This is a big joke to him and the low lifes he put on his cabinet. Satan is now here and we need all the help we can get.

    1. What about our government isn’t a joke?

      Congress has no right to borrow money (pretty copy paper) from a foreign government aka “Federal Reserve Bank”, which is not U.S.A. Federal, it is an absurd idea to borrow their pretty copy paper for face and pay it back by our peoples hard work.

      Jim George

  10. I listened to Leo tonight on Plains Radio. He says you can not impeach but this Quo Warranto seems to be the only Constitutional way to confront Obama now that he has assumed the office of POTUS. He says it will be difficult and much easier if we can get AG…Holder and USAG….Taylor to buy into the Quo Warranto idea!!! UM….yeah….I’m not going to hold my breath….but I am glad he is trying again. Eventually something will stick…but what is it?? My guess is that once the American people get fed up with the outrageous intrusion of the FEDS in their lives they may wake up and revolt. Who the heck knows…I am just tired of all the bickering on the HILL and all the tax payer money going to waste. Well tomorrow is another day…we shall see what it brings!

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