HI Territorial Law 57 (foreign born & HI B.C.'s) - Joint Motion Filled in HOLLISTER v SOETORO

“Regarding Donofrio...I read a response from him early on that on the Chrysler case...he was only proceeding with the clients “best interest’s” in mind and that they (the clients) were not primarily concerned with the eligibility issue. As I read it, a QW would only be filled IF the BK case did not result in the dealers having their dealerships reinstated.”
I have been worried about this. If the government, acting to protect Obama, offered a sufficient cash settlement and the dealers took it, quo warranto would almost certainly be dropped by the dealers as a condition of the settlement.

BTW, The dealers don’t want to reopen their dealerships, they want settlement money, per the lead plaintiff. The Chrysler dealerships were shut down immediately, unlike the GM dealerships that are on a phased schedule that can be canceled by arbitration.

It is possible that the quo warranto has been put on hold and kept as a threat to motivate a cash settlement, but Anderer, the Chrysler dealer seen on Cavuto really seemed to want to punish Obama and didn’t seem likely to settle for a few pennies on the dollar for having his franchise given to a competitor who was a Democrat contributor.

It is not at all clear how meaningful funding for a settlement could be obtained from the legal entity that is still in bankruptcy. The bankruptcy judge would have to admit a huge mistake (a fraud on the court said D’Onofrio) and the redistribute the assets of the bankrupt entity taking away assets allocated to other creditors and giving them to the Chrysler dealers. I just don’t see the wherewithal for a settlement there for the Chrysler dealers.

At a minimum, any settlement would take time lots of court proceedings. D’Onofrio was fully aware of this when he said he would file the quo warranto right around New Years Day. If you look at the 12-29-09 interview with Anderer on Cavuto that game is very much on and I thought I saw a “quo warranton” gleam in Anderer’s eye.

There could be many reasons why D’Onofrio might want to delay quo warranto for a few days or weeks to tweak it to make it better. Also for maximum publicity impact, the world isn’t really back from the holidays until this Monday. Quo warranto isn’t much good as a threat to pressure for a cash settlement unless it can actually get filed in the DC Circuit with arguments that some portion of the Obama DOJ team regards as credible. So I fully expect that it is coming soon.

The legal politics aren’t great for quo warranto in the United States District Court for the District of Columbia. The Attorney General, Eric Holder is a black Democrat and an Obama appointee. The Acting US Attorney is a black Democrat and an Obama appointee, Channing Phillips; and the current Court has a majority of justices appointed by Clinton or Carter.

As to your last assertion: It appears to me that once Obama was inaugurated, the court where Hollister filed lost jurisdiction. Only a limited category of plaintiffs (not appearing to include Hollister) can currently have standing to challenge Obama’s eligibility in quo warranto in the DC Circuit. Why is it that the argument by Hemenway at pp. 17-18 of the opening brief in the Hollister case is not valid? See the opening brief at this site.

To repeat the question he raises at the end of that argument. Why would a de facto officer who is not de jure be immune from the operation of that doctrine just because he is de facto and not de jure in the Oval Office rather than in a lesser office? What wouild exempt the defendant Soetoro a/k/a Obama from the law in that regard?

See the FR thread at this link for a discussion of that brief which includes a discussion on the de facto officer doctrine as set out by the Supreme Court.

Yes, but I think D’Onofrio still has to ask “leave of the court” from the DC Circuit to act as prosecutor on behalf of the USA.

Will the DC Circuit be influenced by politics regarding whether to grant leave of the court to D’Onofrio?

Of course, but I suspect the politics will skew towards the court granting leave. The Chrysler dealers are exactly the kind of plaintiff covered by quo warranto. They can show injury in fact directly caused by agents of Obama acting as POTUS. If quo warranto does indeed apply to POTUS (yet to be litigated, but will be the first challenge) the court would seem to me to be hard pressed not to allow the Chrysler dealers to demand proof of Obama’s eligibility ot be POTUS.

Why? Proving Obama’s eligibility should be a snap, according to Obama partisans on and off the courts! What possible legal reason could the court imagine that would make it politically acceptable to justify blockading a jury trial at which Obama should be expected to merely present his “self-authenticating” HI short-form COLB and everyone goes home?

Denying leave of the court to file quo warranto for any reason other than a ruling that quo warranto doesn't apply to POTUS would scream “the judges are protecting Obama from something”.

If the court grants leave to file, then the trier of fact will be a jury (from memory), not any Democrat appointed judges of the DC Circuit. Burden of proof will be on Obama and under FRE I believe the best evidence rules will allow a demand for discovery of the entire HI vital record file and subpoenas of witnesses. The short-form COLB is only self-authenticating absent evidence that challenges it such as the HI Law 57 and the Blaine BC if its provenance can be established or if it can be discovered in the HI vital records files.

"To repeat the question he raises at the end of that argument. Why would a de facto officer who is not de jure be immune from the operation of that doctrine just because he is de facto and not de jure in the Oval Office rather than in a lesser office? What wouild exempt the defendant Soetoro a/k/a Obama from the law in that regard?"

While Hemenway is totally justified in being steamed by Robertson's taking judicial notice of blogging and twittering in affirming a presumption of Obama's eligibility, Robertson's dismissal effectively defeated discovery of Obama's eligibility and trial on the merits until after the inauguration including any determination that Obama is not de jure POTUS.

Hollister's claims that he is entitled via interpleader to challenge the authority of the CIC is "innovative" and I haven't seen any persons claiming to be lawyers who think it had a chance of succeeding even it it reached trial.

Thus until a quo warranto hearing decides otherwise, Obama is both de facto and de jure POTUS. Hemenway can't expect the court to act as though Obama was only de facto POTUS based on allegations never admitted into evidence at a trial.

In other words, you don't have an answer to thw question, so you have avoided it. You have stated that the defendant is President de jure but have failed to address the issue of how that can be so if he is ineligible for the office for lack of meeting the article II, Section 1, Clause 5 requirement. If one is filling the office in violation of the Constitution he cannot then, by definition, be doing so de jure or the term would be meaningless unless the Constitution is not legally binding.

As to the anonymous lawyers to whom you have spoken: Is there a basis for their opinions or are they just guesses based on such factors as "unthinkablity" rather than legal precedent?

In other words, you don’t have an answer to thw question, so you have avoided it. You have stated that the defendant is President de jure but have failed to address the issue of how that can be so if he is ineligible for the office for lack of meeting the article II, Section 1, Clause 5 requirement. If one is filling the office in violation of the Constitution he cannot then, by definition, be doing so de jure or the term would be meaningless unless the Constitution is not legally binding.
As to the anonymous lawyers to whom you have spoken: Is there a basis for their opinions or are they just guesses based on such factors as “unthinkablity” rather than legal precedent?

Nowhere in the Constitution does the judicial branch have the power to remove a sitting president. There are two constitutional remedies given to Congress: impeachment and trial by the Senate after obtaining office and via objections to the certification of the Electoral College vote for a oresidential candidate who was ineligible. At the joint session of Congress held to certify Obama’s Electoral College votes any one Senator and any one Representative could have submitted to Vice President Cheney in his role as President of the Senate written objections to Obama’s Electoral votes. No one Senator and no one Representative submitted an objection and Obama’s Electoral votes were certified unanimously. Therefore Obama is the de jure president having been sworn into office on Inauguration Day.
At this point impeachment and removal and defeat at the polls are the remedies.

But if a man is constitutionally inelible to be the President, how is he then a "sitting President" who can only be removed in the manner that a man occupying the office who is eligible must be removed. The question remains one of why the de facto doctrine would not apply to a man occupying the office of president just as it would to a lesser official appointed or elected in violation of the Constitution? Would it not be a question of applying the Constitution and declaring what the law is to expose the lack of de jure authority rather than removing someone who does have such de jure authority? Your assertion, I believe, assumes the de jure status that is at issue.

But if a man is constitutionally ineligible to be the President, how is he then a “sitting President” who can only be removed in the manner that a man occupying the office who is eligible must be removed. The question remains one of why the de facto doctrine would not apply to a man occupying the office of president just as it would to a lesser official appointed or elected in violation of the Constitution? Would it not be a question of applying the Constitution and declaring what the law is to expose the lack of de jure authority rather than removing someone who does have such de jure authority? Your assertion, I believe, assumes the de jure status that is at issue.

Thus far there have been more than sixty court cases attempting to have Obama declared ineligible in state, state appeals, state Supreme, federal distict, federal court of appeals and US Supreme Court levels. Obama is 62 for 62 in having adjudications go his way concerning his eligibility. There are 3 or 4 outstanding suits still pending.

Impeachment and trial in the Senate is the remedy. Once a candidate’s electoral votes are certified and he or she is sworn in, that’s that. It was the job of Congress to stop an alleged ineligible candidate’s Electoral votes from being certified. Once they are certified, he’s eligible. And once he’s sworn in, he’s president.

I’m sure that you’ve noticed the seven lawsuits (Berg v Obama, Craig v US, Donofrio v Wells, Herbert v Obama, Lightfoot v Bowen, Schneller v Cortex and Wrotnowski v. Bysiewicz) attempting to challenge Obama’s eligibility that have reached cert conferences at the Supreme Court seeking Writs of Certiorari. Every one of them has been rejected by the Supremes without comment. That’s because of separation of powers. Only Congress has the power to remove a sworn in president from office. The Constitution is mute on ineligible candidates assuming office.
Finally, the state of Hawaii has vouched for the authenticity of Obama’s birth records. Unless and until some new information comes to light, Barack Hussein Obama II is over 35 years of age and was born in Honolulu on August 4, 1961 at 7:24 p.m.

“Only Congress has the power to remove a sworn in president from office. The Constitution is mute on ineligible candidates assuming office.

“Finally, the state of Hawaii has vouched for the authenticity of Obama’s birth records. Unless and until some new information comes to light, Barack Hussein Obama II is over 35 years of age and was born in Honolulu on August 4, 1961 at 7:24 p.m.”

Whether or not the Constitution is “mute on ineligible candidates assuming office” is in dispute and specifically has yet to be tested in the form of a writ of quo warranto hearing in the DC Circuit that would place the burden of proof on Obama to both prove and defend his eligibility for the first time.

Leo D’Onofrio’s contention, subsequently validated by one federal judge, Judge Carter, is that quo warranto applies to the POTUS. D’Onofrio’s analysis is that by passing the quo warranto statute, Congress has delegated to one specific court, the DC Circuit, its exclusive power to find the POTUS to be ineligible. The DC Circuit in a quo warranto proceeding is acting as an agent of the legislative branch, not within the exclusive powers of the judicial branch, thus no violation of separation of powers in this interpretation.

The DOJ, in the case before Judge Carter, argued that quo warranto does not apply to the POTUS. In effect, DOJ argued that once a president is inaugurated, congress loses its power to declare him to be ineligible. Judge Carter said that was troubling and in dicta said that the DC Circuit was the correct venue to challenge the eligibility of the POTUS.

We may all be about to find out who is right!

"Nowhere in the Constitution does the judicial branch have the power to remove a sitting president."

If I'm not mistaken, only Orly has sought to have a Judge "remove" Barry from office. Otherwise, it appears that the others have sought to have the courts make a Constitutional determination of weather or not Barry was/is eligible, and if not...find him ineligible. Actual removal would be by some other means as the Constitution only states how the removal of a POTUS is to be handled (not how to remove a usurper).

Unprecedented territory indeed.

So, your point is that because other lawsuits involving different issues in which it was found that there was a lack of standing, unlike in the Hollister case, have not been taken up preliminarily by the Supreme Court the different issues that are raised in the Hollister case have been decided. I would have to disagree. None of those cases, for example, raised a de facto officer issue. So it is not clear how those events answer the question asked. In fact, if fhe Rule of Law were to prevail, they clearly do not. My inquiry was about that doctrine, but, with all due respect, that inquiry does not seem to have been addressed in the responses.

“So, your point is that because other lawsuits involving different issues in which it was found that there was a lack of standing, unlike in the Hollister case, have not been taken up preliminarily by the Supreme Court the different issues that are raised in the Hollister case have been decided. I would have to disagree. None of those cases, for example, raised a de facto officer issue. So it is not clear how those events answer the question asked. In fact, if the Rule of Law were to prevail, they clearly do not. My inquiry was about that doctrine, but, with all due respect, that inquiry does not seem to have been addressed in the responses.”

There is no de facto officer issue until and unless evidence is presented under the FRE during either a trial on the merits or a quo warranto hearing. Hemenway and Hollister only have allegations and opinions that Obama is ineligible that have not yet been substantiated by any court.

You continue to insist that Hollister was granted “standing” which I have repeatedly refuted because Robertson's court is not able to remedy the Hollister’s claim that Obama is ineligible as CIC, but bottom line there has been no evidentiary hearing on any of the eligibility evidence that would refute Obama’s current status as both de facto and de jure POTUS.

The good news is the placement in the court record of HI Law 57, which D’Onofrio can make use of in his quo warranto filing. Unlike Hollister, the Chrysler dealers have a real chance of getting actual legal standing sufficient to justify a quo warranty hearing on the merits with discovery and submission of evidence that could prove Obama to be ineligible.

As to the specific page 17-18 claims by Hemenway in his filing, his interpretation of the de facto officer doctrine seems to be upside-down and controversial by claiming that Obama’s actions are retroactively invalid if he is illegitimate. But the court has no basis for presuming that Obama is illegitimate without a hearing on the merits which this court could only hear before inauguration without violating separation of powers.

I predict Hemenway gets zero votes from three judge appeals panel and zero votes from the en banque appleals panel as well, if he persists. If the court can't fashion a remedy for plaintiff Hollister's claims, Hollister has no standing due to failure to state a justiciable claim and his claims will be dismissed.

Jim, the eligibility issue has never been before SCOTUS. In the cases brought in other courts, the dismissals have been because of standing of the plaintiffs or jurisdiction of the court, and in the one case of Kerchner vs Soetoro, because of a "lack of claim."

In no court have the substantive issues been tried. This is not to say that progress has not been made. The issue will be before the Federal District Court in Washington, D.C., where it belongs.

Ineligible or not, the guy is a sitting POTUS, and can only be removed by impeachment and conviction. He may be de facto, but he can only be removed, IMHO, by a de jure process. TO do otherwise would only do more damage to the Constitution than this prepostor has already done, and put us squarely in the camp of the "Banana Republics."

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