The reasoning the Andrade Court gave could well apply to an "interested person" such as Lakin:
Regarding statutory quo warranto procedure Andrade Court said:
"The above procedure is cumbersome and could easily operate to deprive a plaintiff with an otherwise legitimate claim of the opportunity to have his case heard. For instance, the Attorney General was responsible for appointing appellees Diegelman and Lauer to their jobs. Requiring appellants to convince the Attorney General to file a quo warranto action on their behalf in this case would effectively bar their access to court."
“This court has held that equity will not be barred from issuing an injunction to restrain invalidly appointed officers if the alternative remedy of quo warranto is inadequate.”
Details in context from a previous post by me:
Leo was elated when Judge Carter refused to grant the DOJ claim that only impeachment could remove a sitting president and instead Carter affirmed Leo's theory that a quo warranto could be brought against Obama, but only in the DC District Court.
Leo did discuss Andrade in his 3-part legal brief on quo warranto, but did not discuss the “equity” comment in that decision, which I believe might interest Leo, if it hadn't come to his attention.
Now a second federal judge, Lamberth, has ignored a DOJ request in their Motion to Dismiss to rule that quo warranto can't be brought against a sitting president.
From the Lamberth ruling dismissing Taitz v. Obama:
“The Court of Appeals for this Circuit has held that a quo warranto action against a public official may be brought only by the Attorney General or the U.S. Attorney. Andrade v. Lauer, 729 F.2d 1475, 1498 (D.C. Cir. 1984) (Wright, J.) (citing United States v. Carmody, 148 F.2d 684, 685 (D.C. Cir. 1945)). The Court of Appeals reasoned that this must be the case because challenges to authority by which a public office is held ‘involve a right belonging to the whole body of the public which can be protected only by a public representative.’ Carmody, 148 F.2d at 685.”
I also found in Andrade the following explaining how “equity” could provide an “alternative” to quo warranto:
“The above procedure is cumbersome and could easily operate to deprive a plaintiff with an otherwise legitimate claim of the opportunity to have his case heard. For instance, the Attorney General was responsible for appointing appellees Diegelman and Lauer to their jobs. Requiring appellants to convince the Attorney General to file a quo warranto action on their behalf in this case would effectively bar their access to court.”
and
“Given these restrictions, quo warranto is an extremely difficult and uncertain remedy for the type of claim at issue in this case. This court has held that equity will not be barred from issuing an injunction to restrain invalidly appointed officers if the alternative remedy of quo warranto is inadequate. Columbian Cat Fanciers, Inc. v. Koehne, supra, 96 F.2d at 532.”
http://bulk.resource.org/courts.gov/c/F2/729/729.F2d.1475.82-1880.html
The Andrade Court said “This court has held that equity will not be barred from issuing an injunction to restrain invalidly appointed officers if the alternative remedy of quo warranto is inadequate.” I wonder how Leo would interprete an implementation of this “alternative remedy” to quo warranto in terms of gaining discovery and a ruling on Obama’s NBC eligibility consistent with and still under the quo warranto umbrella.
Just how far would this equity alternative to quo warranto go in the fact situation regarding Obama? Would the “injunction to restrain invalidly appointed officers” apply to Obama or perhaps restrain invalidly appointed AG and US Attorney from failing to bring quo warranto or failing to permit an “interested party” to bring quo warranto?
Did you email Leo with this? I think he would be interested in reading it at the very least.
Note that Judge Lamberth mentioned but breezed by the Andrade case in his footnote number 1, but Andrade contains an “equity” alternative to quo warranto which might allow a plaintiff like Lakin to petition the court to issue “an injunction to restrain invalidly appointed officers” thus bypassing the AG and US Attorney.
The reasoning the Andrade Court gave could well apply to an “interested person” such as Lakin:
Regarding statutory quo warranto procedure Andrade Court said:
“The above procedure is cumbersome and could easily operate to deprive a plaintiff with an otherwise legitimate claim of the opportunity to have his case heard. For instance, the Attorney General was responsible for appointing appellees Diegelman and Lauer to their jobs. Requiring appellants to convince the Attorney General to file a quo warranto action on their behalf in this case would effectively bar their access to court.”
“This court has held that equity will not be barred from issuing an injunction to restrain invalidly appointed officers if the alternative remedy of quo warranto is inadequate.”
Details in context from a previous post by me:
Leo was elated when Judge Carter refused to grant the DOJ claim that only impeachment could remove a sitting president and instead Carter affirmed Leo’s theory that a quo warranto could be brought against Obama, but only in the DC District Court.
Leo did discuss Andrade in his 3-part legal brief on quo warranto, but did not discuss the “equity” comment in that decision, which I believe might interest Leo, if it hadn’t come to his attention.
Now a second federal judge, Lamberth, has ignored a DOJ request in their Motion to Dismiss to rule that quo warranto can’t be brought against a sitting president.
From the Lamberth ruling dismissing Taitz v. Obama:
“The Court of Appeals for this Circuit has held that a quo warranto action against a public official may be brought only by the Attorney General or the U.S. Attorney. Andrade v. Lauer, 729 F.2d 1475, 1498 (D.C. Cir. 1984) (Wright, J.) (citing United States v. Carmody, 148 F.2d 684, 685 (D.C. Cir. 1945)). The Court of Appeals reasoned that this must be the case because challenges to authority by which a public office is held ‘involve a right belonging to the whole body of the public which can be protected only by a public representative.’ Carmody, 148 F.2d at 685.”
I also found in Andrade the following explaining how “equity” could provide an “alternative” to quo warranto:
“The above procedure is cumbersome and could easily operate to deprive a plaintiff with an otherwise legitimate claim of the opportunity to have his case heard. For instance, the Attorney General was responsible for appointing appellees Diegelman and Lauer to their jobs. Requiring appellants to convince the Attorney General to file a quo warranto action on their behalf in this case would effectively bar their access to court.”
and
“Given these restrictions, quo warranto is an extremely difficult and uncertain remedy for the type of claim at issue in this case. This court has held that equity will not be barred from issuing an injunction to restrain invalidly appointed officers if the alternative remedy of quo warranto is inadequate. Columbian Cat Fanciers, Inc. v. Koehne, supra, 96 F.2d at 532.”
http://bulk.resource.org/courts.gov/c/F2/729/729.F2d.1475.82-1880.html
The Andrade Court said “This court has held that equity will not be barred from issuing an injunction to restrain invalidly appointed officers if the alternative remedy of quo warranto is inadequate.” I wonder how Leo would interprete an implementation of this “alternative remedy” to quo warranto in terms of gaining discovery and a ruling on Obama’s NBC eligibility consistent with and still under the quo warranto umbrella.
Just how far would this equity alternative to quo warranto go in the fact situation regarding Obama? Would the “injunction to restrain invalidly appointed officers” apply to Obama or perhaps restrain invalidly appointed AG and US Attorney from failing to bring quo warranto or failing to permit an “interested party” to bring quo warranto?
Barack Obama is not an appointed official. He is an elected official.
Since both the Attorney General of the United States and the US Attorney for the District of Columbia were confirmed by the United States Senate, it will be rather difficult to make the case that they were appointed “invalidly.”
If the opposition political party raises enough of a fuss about an alleged political scandal, then whichever party is in power can be forced by the power of public opinion to appoint a Special Counsel/Independent Counsel to investigate alleged wrongdoing. Richard Nixon’s and George Mitchell’s hands were forced in this regard in Watergate,
Ronald Reagan-Ed Meese were forced to appoint Lawrence Walsh in Iran-Contra; Bill Clinton-Janet Reno were forced to appoint Ken Starr in Whitewater and George W. Bush-John Ashcroft were forced to appoint Patrick Fitzgerald in the Scooter Libby-Valerie Plame scandal.
Thus far, the Republican Party or other Obama opponents have not demanded a special counsel/Independent Counsel to investigate Obama’s eligibility. The Attorney General or the US Attorney could cede the power to request a quo warranto action to such a neutral party, if the political pressure were intense enough.