The Post & Email by Mario Apuzzo
Former President Donald J. Trump Should File a Declaratory Judgment Action and Not a Quo Warranto Action
The declaratory judgment action that I propose is the only way that Trump should goA declaratory judgment action that I propose gives Trump the best fighting chance he has to defend himself in the Senate impeachment trial. A declaratory judgment action under 28 U.S.C. §2201 and F.R.C.P. 57 does not suffer from the procedural and constitutional infirmities of a quo warranto action I have outlined above. Trump has standing to bring the action against the House, Senate, and the whole Congress.[1] First, Trump will be personally harmed from the impeachment and he presents a real live controversy with respect to that impeachment. He will be able to show that it is Congress’s impeachment that is causing him his harm. He would also be able to show that the court can give him the remedy he seeks which is a declaration of his rights and obligations respecting whether he spoke the truth about the irregularities in elections in the contested states and whether his speech regarding those elections legally caused the Capital invasion. Second, he also has competitive standing against Congress, Biden, and Harris which continues beyond the 2020 election. See Owen v. Mulligan, 640 F.2d 1130, 1133 & n.8 (9th Cir. 1981) (citing Schiaffo v. Helstoski, 492 F.2d413, 417 (3d Cir. 1974) (holding that a rival candidate had standing to challenge an incumbent’s activities seeking to secure an unfair advantage in future elections)). Trump has stated publicly that there is a likelihood that he will run for president again in 2024. In fact, the Democrats and some Republicans want to impeach Trump so that he can no longer run for president. Given that Trump is no longer in office, personally harming Trump politically in the future is one of the main reasons why Congress, with the tacit support of Biden and Harris, is pursuing its impeachment of Trump. In his declaratory judgment action, Trump can challenge and seek to enjoin the activities of the House and Senate, designed to impeach and convict him and intended to produce an unfair advantage in favor of his primary and/or general election rivals in the next presidential election. Hence, for these two reasons, Trump would present a justiciable controversy in his declaratory judgment action.
In his declaratory action, Trump would be seeking a declaration from the court as to his rights and obligations with respect to (1) his statements that the elections in the six or seven contested states were not conducted according to the Constitution and state and federal law and (2) whether his speech on January 6, 2021 is a legal cause of the violent entry into the Capitol. An impeachment trial in the Senate does not afford Trump the same due process rights he would enjoy in a court and satisfy his need to pursue those issues. As we witnessed in Trump’s first impeachment, there is no real legal standard as to what a high crime or misdemeanor is. The interpretation and application of those words are rife with political bias existing in any given moment of history. For example, then-House Minority Leader Gerald R. Ford in 1970 defined the words thus: “The only honest answer is that an impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history; conviction results from whatever offense or offenses two-thirds of the other body considers to be sufficiently serious to require removal of the accused from office. Again, the historical context and political climate is important.†Gerald Ford’s Remarks of April 15, 1970 on the Impeachment of Supreme Court Justice William Douglas Archived April 12, 2019, at the Wayback Machine. Retrieved January 17, 2021. Hence, Trump needs to develop and prove as much factual information as he can in a hopefully dispassionate court of law before a jury free of passion, prejudice, and sympathy prior to the Senate trial in order to meet that political challenge there.
Trump would not have in the Senate the same discovery and subpoena powers that he would have if he first filed the declaratory judgment action in federal district court. A court of law has more power and will to sanction discovery violators than would a politically charged Senate. The rules of evidence apply in a court but not in the Senate. Neither a civil nor criminal court would allow as we saw in the House of Representative a witness to offer that President Trump is the “white-supremacist-in-chief,†clearly irrelevant and inflammatory, as evidence of liability or guilt with respect to the Capitol invasion.
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