Replies

It was raised and discussed .. see below transcript excerpt:

His order

http://www.scribd.com/doc/21808122/Judge-Carter-Ruling-on-MTD?autodown=txt

Excerpt of testimony from the Oct. 5 hearing
and Quo Warranto:

If the President
08:41 20 were forced to go through pretrial and discovery and trial,
08:41 21 imagine what would happen to his ability to function as the
08:41 22 chief executive officer of the United States of America.
08:41 23 Moreover, what would happen if, for example, some
08:41 24 judge in one district were to decide that the President is
08:42 25 not qualified or did not meet the qualifications to be

1 President, and another judge faced with 08:42 the same issue in
08:42 2 another district were to decide, yes, he is qualified.
08:42 3 What would we do then? We would have appeals.
08:42 4 In the meantime, the President’s ability, for
08:42 5 example, to conduct foreign policy would be severely
08:42 6 damaged.
08:42 7 I mean, imagine the prospect of going into
08:42 8 negotiations, for example, over nuclear nonproliferation or
08:42 9 some other extremely delicate matter with our foreign
08:42 10 adversaries and allies looking at the President saying,
08:42 11 “Wait a minute, I just heard that a district judge in your
08:42 12 country decided that you’re not fit to be President. Why
08:42 13 should I engage you in negotiations?” Imagine what it would
08:42 14 do to the ability of the President — and this is any
08:42 15 President. We’re not just talking about the current
08:42 16 incumbent President. This is an attack on the presidency
08:43 17 itself.
08:43 18 Imagine the damage that would accrue if matters
08:43 19 such as these could be litigated in courts. The damage that
08:43 20 could accrue to the President’s ability to pass his domestic
08:43 21 agenda. The President of the United States is the only
08:43 22 officer of the United States who is elected through the vote
08:43 23 of all of the people of the United States. He’s not — it’s
08:43 24 not like a Congressman or a Senator. He doesn’t have just
08:43 25 one constituency. His constituency is the people of the

08:43 1 United States.
08:43 2 I submit that the constitutional — the textual
08:43 3 commitment in the Constitution to the questions which the
08:43 4 plaintiffs in this case seek to raise renders it mandatory,
08:43 5 in my view, that these matters be considered nonjusticiable.
08:43 6 That the remedies, if any, which these plaintiffs have and
08:43 7 other plaintiffs who wish to challenge the fitness and
08:43 8 qualifications of a President to serve in office — those
08:44 9 are committed to the legislative branch, to the Congress,
08:44 10 and not to courts, and for very good reasons.
08:44 11 THE COURT: Only to the Congress?
08:44 12 MR. WEST: Yes, Your Honor.
08:44 13 THE COURT: And then in your argument you stated
08:44 14 that minimally if the Court disagreed, it should be
08:44 15 transferred to the D.C. District.
08:44 16 MR. WEST: No, Your Honor. The quo warranto —
08:44 17 the plaintiffs have made the argument that the quo warranto
08:44 18 aspects of this case should be transferred to the D.C.
08:44 19 District. We have not suggested that that be transferred.
08:44 20 If the — if, in fact, they wish to bring a quo
08:44 21 warranto action, they should bring an original one in the
08:44 22 D.C. District.
08:44 23 THE COURT: Thank you.
08:44 24 MR. WEST: And I’ll submit the matter for any
08:44 25 other questions which the Court may have.

1 THE COURT: I going to have a couple, 08:44 but not now.
08:44 2 Counsel.
08:44 3 MR. DeJUTE: Thank you, Your Honor.
08:44 4 THE COURT: Once again, would you make your
08:44 5 appearance for the record. I know who you are, but I want
08:44 6 my record to know who you are.
08:44 7 MR. DeJUTE: Good morning, Your Honor. David
08:44 8 DeJute, Assistant United States Attorney for the defendants.
08:45 9 Just briefly, Your Honor. With respect to the
08:45 10 surreply, it makes essentially two points. The one is that
08:45 11 the reserved rights of the Ninth Amendment entitle these
08:45 12 plaintiffs to come before this Court. And without going
08:45 13 through the historical analysis, which is very interesting,
08:45 14 of the law of nations and treatises that were extant in the
08:45 15 1750s and so on, plaintiffs concede that the Ninth Amendment
08:45 16 has to do with unenumerated rights. They also concede, as
08:45 17 they must, that the Constitution is a written document.
08:45 18 That written document, as Your Honor just mentioned, gives
08:45 19 to Congress and to no one else the ability to remove a
08:45 20 sitting President from office.
08:45 21 The Ninth Amendment simply is not a source of
08:45 22 rights even as a matter of theory when that written document
08:45 23 already enumerates those rights to a different coordinate
08:45 24 branch of government.
08:45 25 The only other point that they make in their

1 surreply is with respect to the 08:45 FOIA, or Freedom of
08:46 2 Information Act, claims. And their argument is essentially
08:46 3 that this Court should disregard the fact that they haven’t
08:46 4 been filed properly and should use its power to
08:46 5 constructively construe that because they’ve been attempting
08:46 6 to get information, then this Court should construe those as
08:46 7 proper FOIA requests. It simply is not the law that they
08:46 8 can circumvent the jurisdictional requirements of venue and
08:46 9 district to do their FOIA requests in a roundabout way.
08:46 10 They did not file their FOIA requests in a proper
08:46 11 manner, and they should be held to have those FOIA requests
08:46 12 dismissed and re-file or make them; and if the final agency
08:46 13 action is something with which they disagree, then they can
08:46 14 file the appropriate FOIA action in the appropriate district
08:46 15 at that time.
08:46 16 Thank you, Your Honor.
08:47 17 THE COURT: Thank you.
08:47 18 Counsel, your argument concerning standing, I’d
08:47 19 like to hear it, please. You stated that that was the crux
08:47 20 of the issue, that the Court didn’t need to go any further,
08:47 21 so I’d like you to repeat your argument.
08:47 22 MR. WEST: Well, I believe the political question
08:47 23 is clearly also present. But with respect to standing,
08:47 24 Your Honor, our argument is that plaintiffs cannot establish
08:47 25 the requisite injury in fact to establish standing in this

1 case. No plaintiff in this case 08:47 can establish a
08:47 2 particularized harm as to him or her sufficient to vest them
08:47 3 with what is traditionally known as standing to bring an
08:47 4 action in the U.S. District Court.
08:47 5 They — no plaintiff in this case has any greater
08:47 6 standing than a taxpayer standing. You know, try as they
08:47 7 might, they cannot particularize an injury to them. In
08:47 8 fact, they cannot even — in certain cases they cannot even
08:48 9 identify an injury itself.
08:48 10 Moreover, with the respect to the question of
08:48 11 redressability, which is another aspect, another prong of
08:48 12 the standing question, as I’ve stated before, we do not
08:48 13 believe that any of the questions in this case are
08:48 14 justiciable, and therefore, there’s no redressability —
08:48 15 there’s nothing that this Court can redress.
08:48 16 And that, in essence, is our standing argument.
08:48 17 No injury in fact and no redressability.
08:48 18 THE COURT: Okay. Have you concluded your
08:48 19 arguments? Are you satisfied?
08:48 20 MR. DeJUTE: Yes, sir.
08:48 21 THE COURT: Counsel, are you satisfied?
08:48 22 MR. SOSKIN: Yes, sir.
08:48 23 THE COURT: Do you have anything you would like to
08:48 24 say?
08:48 25 MR. SOSKIN: No, Your Honor. I’m just here to

1 advise and assist these gentlemen in 08:48 any way possible.
08:48 2 THE COURT: Counsel, are you satisfied?
08:48 3 MR. WEST: Yes, Your Honor. Thank you.
08:48 4 THE COURT: Before I turn to Ms. Taitz for a
08:48 5 moment, I just have one or two questions for you.
08:49 6 This idea of political question is an interesting
08:49 7 one. I’d like you to walk me through the process, if you
08:49 8 would, of how that would actually take place. In other
08:49 9 words, if, in fact, Ms. Taitz was correct, or better yet,
08:49 10 let’s assume that Arnold Schwarzenegger was running for
08:49 11 President. He was born in Austria, apparently cannot become
08:49 12 or run as a candidate, and he now decides to declare for the
08:49 13 Presidency of the United States.
08:49 14 In this belief on your part that Congress is the
08:49 15 deciding branch of government, I want you to assume that
08:49 16 that Congress is a Republican Congress for a moment and
08:49 17 explain to me and walk me through — and I’m going to
08:49 18 require you to do that. We can spend all day or night until
08:50 19 you do. Walk me through how that works.
08:50 20 MR. WEST: First of all, Your Honor, you’re
08:50 21 talking about a candidate for President.
08:50 22 THE COURT: I’m going to talk about both
08:50 23 eventually, so I’ve got plenty of time. Let’s just start
08:50 24 with Arnold Schwarzenegger. I’m going to suggest to you the
08:50 25 Courts are going to have to intervene at some time in what

1 you perceive to be a political 08:50 question and stop
08:50 2 Schwarzenegger from running for President.
08:50 3 MR. WEST: Well, I believe, your Honor, the
08:50 4 question of whether a person is properly qualified as a
08:50 5 candidate is a different breed of cat altogether from
08:50 6 someone who is a sitting President whom the plaintiffs are
08:50 7 seeking to remove from office.
08:50 8 THE COURT: Are you going to answer my question?
08:50 9 MR. WEST: Yes. I believe that the Courts could
08:50 10 have some jurisdiction over the question of whether a
08:50 11 candidate is qualified to be on the ballot.
08:50 12 THE COURT: Do you agree, Counsel?
08:50 13 MR. DeJUTE: I do agree, Your Honor.
08:50 14 THE COURT: Counsel, do you agree?
08:50 15 MR. SOSKIN: I don’t believe we need to take that
08:50 16 position at this time, but it’s conceivable that there would
08:51 17 be standing in a scenario in which such a case could be
08:51 18 adjudicated.
08:51 19 THE COURT: So in what might be commonly called a
08:51 20 political question, because that’s a broad word, at least in
08:51 21 that hypothetical, the Courts might be the intervening
08:51 22 party. We can just say might.
08:51 23 Okay. Now, I want to take this situation. I want
08:51 24 you to walk me through, assuming that this is a Democratic
08:51 25 Congress, the process wherein Congress would take this issue

1 and decide that President Obama 08:51 did not meet the
08:51 2 constitutional mandates. How would that work?
08:51 3 MR. WEST: I believe a bill could be introduced in
08:51 4 the Congress to — probably to call for an investigation
08:51 5 into the issue of whether he is qualified to be President.
08:51 6 There are provisions within the Constitution which call
08:51 7 for — for instance, the 25th Amendment, which calls for —
08:51 8 which has a set schedule, if you will, or a set of
08:52 9 procedures for questioning whether a President is capable of
08:52 10 remaining in office or whether he should be removed either
08:52 11 temporarily or permanently.
08:52 12 In addition, as we point out in our papers, under
08:52 13 the Nixon case, the question of impeachment, if we were to
08:52 14 talk about impeachment here — and I don’t really know where
08:52 15 the Court is going, so I’m giving you the lay of the land as
08:52 16 I see it. And I’m not suggesting in any way, shape, or form
08:52 17 that impeachment is appropriate in this case. But let me
08:52 18 just say this: That the Nixon case makes it clear, both the
08:52 19 D.C. Circuit and the Supreme Court, that the question of
08:52 20 impeachment is not a question which Courts can involve
08:52 21 themselves in.
08:52 22 That’s one of the reasons why we are making the
08:52 23 argument we’re making, because the Constitution is clear.
08:52 24 The only two uses of the words “sole,” “sole power” anywhere
08:52 25 in the Constitution are where Congress — where the founding
DEBBIE GALE, U.S. COURT REPORTER
SACV 09-0082 DOC - 10/5/2009 - Item No. 3

1 fathers gave to Congress the sole power 08:53 to impeach and the
08:53 2 sole power to try impeachments.
08:53 3 So if you’re talking about the impeachment
08:53 4 procedure, the articles of impeachment are drawn up in the
08:53 5 House, and the impeachment is tried in the Senate.
08:53 6 THE COURT: Now, I’m going to come back to my
08:53 7 question. I want you to walk me through the process in this
08:53 8 particular case. Is it impeachment?
08:53 9 MR. WEST: I don’t know.
08:53 10 THE COURT: That’s my belief also, that we don’t
08:53 11 know.
08:53 12 MR. WEST: Right. I believe it would depend upon
08:53 13 how Congress wished to address it, how Congress wished to
08:53 14 view it. And I think that if these plaintiffs believe that
08:53 15 they have some claim that Barack Obama’s birth certificate
08:53 16 is forged, let them go through their congressman. It’s the
08:53 17 only workable way, Your Honor. It’s the way the founding
08:53 18 fathers intended.
08:53 19 THE COURT: I understand. I’m going to come back
08:53 20 to my question because I’m still unclear about what you
08:54 21 said.
08:54 22 I heard you say that you didn’t know the
08:54 23 methodology at the present time by which the legislative
08:54 24 branch, Congress, would proceed. That it could be
08:54 25 impeachment, or I also heard the implication that there was

1 no process in place, and that Congress might 08:54 enact a process
08:54 2 in this peculiar situation.
08:54 3 MR. WEST: Well, I believe we have the 25th
08:54 4 Amendment, Your Honor, which sets forth a procedure. For
08:54 5 example, the contemplation, I believe, in the 25th Amendment
08:54 6 is a situation where the President is incapacitated for some
08:54 7 reason. I believe that this could be a species of
08:54 8 incapacitation if they want to try to establish that Barack
08:54 9 Obama was not a United States citizen. The procedures
08:54 10 outlined in the 25th Amendment I believe would be the
08:54 11 procedures that would be utilized.
08:54 12 THE COURT: Do you agree, Counsel?
08:54 13 MR. DeJUTE: I do agree, Your Honor. And I would
08:54 14 just add that, you know, the reason we don’t know what the
08:55 15 procedure is, is because the plaintiffs through no fault
08:55 16 have been somewhat unclear. And it either is impeachment or
08:55 17 it’s not impeachment, it seems to me. “Impeachment” simply
08:55 18 meaning, in the colloquial way, removal from office. So
08:55 19 they are seeking the President’s removal from office, or
08:55 20 they are not.
08:55 21 If they are seeking the President’s removal from
08:55 22 office, not as a candidate, but as someone whom the electors
08:55 23 have sworn in and the Chief Justice twice swore into office,
08:55 24 then it seems to me the only way you can remove a sitting
08:55 25 President from office is through the impeachment procedures.

1 And as Mr. West has indicated, that is entirely 08:55 the province
08:55 2 of Congress.
08:55 3 If they are not seeking removal, if they are
08:55 4 seeking something else, then there’s the whole doctrine of
08:55 5 this Court not being willing to issue nugatory orders.
08:56 6 If the sole power to remove someone is through
08:56 7 impeachment, then if they’re seeking anything other than
08:56 8 that, then, at the end of this trial, when this Court were
08:56 9 to declare, at their best case scenario — I’m not
08:56 10 suggesting this is in any way factual — that somehow the
08:56 11 President is ineligible for office, this Court would be
08:56 12 without power to enforce — no Court is in the business of
08:56 13 giving advisory judgments, where the only thing that they
08:56 14 could do with it was to pass it on to Congress and say do
08:56 15 what they will with this.
08:56 16 So it’s either impeachment, where they do not have
08:56 17 jurisdiction, or it is an advisory opinion, in which this
08:56 18 Court should not issue one.
08:56 19 THE COURT: Lastly, with the Military Commission
08:56 20 Act, or with numerous iterations, Congress sought to make
08:56 21 certain that this disparity — in other words, 600 federal
08:56 22 judges in the United States, 93 districts, the specter could
08:56 23 be that the parties were picking a forum, either a liberal
08:57 24 or conservative forum, for their own uses, whichever party,
08:57 25 whichever entity is involved. I hear that argument very

1 clearly. Congress sought to cause 08:57 uniformity in the
08:57 2 Military Commission Act, et cetera, by placing that within
08:57 3 the purview of the D.C. Circuit. Now, I understand a
08:57 4 quo warranto going to the D.C. Circuit. But is that your
08:57 5 position also, that if there ever was a resolution by a
08:57 6 Court, that it should be in the D.C. Circuit?
08:57 7 MR. WEST: I don’t believe that quo warranto is
08:57 8 applicable to the President of the United States. I would
08:57 9 not concede that.
08:57 10 However, if it were, the only statute that we know
08:57 11 of that would cover this kind of a situation would be the
08:57 12 D.C. statute. But I think that we’re not conceding at all
08:57 13 that quo warranto would apply to the President of the
08:57 14 United States.
08:57 15 THE COURT: I’m not asking you to take that
08:57 16 position either. I just recognize the value of your
08:57 17 argument and how discomforting it is that parties could go
08:58 18 across the nation and simply pick what they perceive, by
08:58 19 either party’s choice, a liberal or conservative district by
08:58 20 reputation, which doesn’t mean that we are on the bench. We
08:58 21 cast away politics when we come to the bench, as you know.
08:58 22 But still there’s a perception different parts of
08:58 23 the country are more liberal or conservative than others,
08:58 24 and the question I’ve always had is whether Congress, with
08:58 25 the separation of powers, had the ability literally under

1 the Military Commission Act to start focusing 08:58 the Courts and
08:58 2 directing the Courts to hear a motion or decide these issues
08:58 3 in one jurisdiction and if that wasn’t violative of the
08:58 4 separation of powers in and of itself. But that’s not an
08:58 5 issue before us.
08:58 6 Are you satisfied with your argument for the time
08:58 7 being?
08:58 8 MR. DeJUTE: I am, Your Honor.
08:58 9 THE COURT: (To Mr. Soskin:) And you’re, once
08:58 10 again, taking no position on anything?
08:58 11 MR. SOSKIN: Mr. West and Mr. DeJute have ably
08:58 12 stated the position.
08:58 13 THE COURT: (To Mr. West:) Counsel, are you
08:58 14 satisfied?
08:58 15 MR. WEST: Yes, Your Honor. I have very able
08:58 16 assistance from Mr. DeJute. Thank you.

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