QUO WARRANTO: A New Hope - Military can now retreat in peace.

I'm publishing my research and analysis with the hope it will do some good. I can't promise I'll take it any further than that. But anybody is free to copy this research word for word and do with it what they like. If I feel inspired by the response, and enough people come forward and express a belief in me and my work, I might draft a petition for quo warranto on their behalf.  I will not be soliciting any clients. I'd rather have fun. But the Constitution matters more than fun.  We'll see what happens. CHANGES BELOW IN RED.]

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 more viable 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.  And there is no prevailing need to place this burden on the backs 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, are 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 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 statute is very clear as to the DC District Court venue.

Furthermore, should either official institute 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 determined 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 either 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 [but in separate law suits]. “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 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 as to 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 on their own volition and motion. The issue of Obama’s eligibility for POTUS has already spread so far and wide from mainstream media to tabloids and foreign news coverage and it’s not going away.  Furthermore, 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 it’s best that this research be published far and wide and also included in a letter to AG Holder and US Attorney Taylor suggesting 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 designation 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 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 involvement 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 by his intellect as to 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, such a petition will not be necessary if AG holder and/or 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.

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.

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 this 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 3 STANDING-TRIAL BY JURY- HISTORY OF STATUTE - SEPARATION OF POWERS Cont.