by Mario Apuzzo, Esq., ©2021, blogging at Natural Born Citizen

 (Jan. 12, 2021) —[Originally published January 11, 2021]

Attached find the Houses’ Resolution advancing articles of impeachment introduced today, January 11, 2021, against President Donald J. Trump. The House will be voting on the resolution on Tuesday of this week. Should the House vote to move forward with the impeachment, President Trump must immediately file a declaratory judgment action in federal district court.   

The document alleges that President Trump committed a “high crime and misdemeanor” when he “incited violence against the Government of the United States.” It also alleges that Trump “engaged in insurrection or rebellion against” the United States,” an act prohibited by the Fourteenth Amendment. 

To support these assertions it alleges that as a lead up to the violence on January 6, 2021, President Trump “repeatedly issued false statements asserting that the Presidential election results were the product of widespread fraud and should not be accepted by the American people or certified by State or Federal officials.”  It adds that “he reiterated false claims that ‘we won this election, and we won it by a ‘landslide.'”  It states that “in context,” those misrepresentations along with his saying “if you don’t fight like hell you’re not going to have a county anymore,” incited the crowd to enter the Capitol and interfere with the Joint Session of Congress on January 6, 2021.

The articles also refer to President Trump’s January 2, 2021 telephone call to Georgia Secretary of State, Brad Raffensperger, during which it is alleged that he told him that he needed to “‘find’ enough votes to overturn the Georgia Presidential election results and threatened Secretary Raffensperger if he failed to do so.”

Because of these factual allegations and because they serve as the foundation of the impeachment action, President Trump, as an interested party with standing, should immediately file a declaratory judgment action against Congress and the House of Representatives in federal district court under 28 U.S.C. §2201 and F.R.C.P. 57.  There exists a real live (not hypothetical) controversy between the House and him which a court of law needs to decide, for Congress will not resolve the issue given the results and disruption of the Joint Session on January 6.  The declaratory action would terminate the ongoing controversy regarding the integrity of the election.  He needs to ask that the court declare what his rights and obligations are respecting whether he lied to the American people regarding the 2020 election.  He needs the election factual findings and ruling of the court to defend himself in the impeachment proceedings.  In the action, he can challenge the votes in all the six or seven offending states.  He already has much of the information he needs right in the Texas lawsuit, other legal actions, and evidence which he was never given an opportunity to present in court.  Having proven that his claims of election irregularity were legitimate, he would be able to show that the impeachment has no factual foundation and thereby prevail in that regard. 

He should ask for a jury trial and for a speedy hearing.  He needs to ask for full discovery so that he can prove that he did not lie to the American people.  Depending on who wins and losses, the case must be fast-tracked to the U.S. Supreme Court.  All this needs to be done immediately so that the court findings can be used to stop Biden’s inauguration on January 20.  Even if that inauguration cannot be stopped, Trump still needs the court’s findings to stop the impeachment and for his future political career. 

Having proven in court that his representations regarding the integrity of the election are not false, there is no factual predicate to the articles of impeachment.  It also shows that he was fighting for the Constitution and the rule of law and not to incite violence against the U.S. Government.  Such a factual finding by a court will also show that President Trump is not “a threat to national security, democracy, and the Constitution.” It will show that he did not “act[] in a manner grossly incompatible with self-governance and the rule of law.”

President Trump should also join a count in the complaint to have the court declare that Senator Kamala Harris, born in California to parents who were temporarily in the United States and not U.S. citizens, at best is a Fourteenth Amendment “citizen” of the United States, but not an Article II “natural born citizen.”  He has standing to assert that given that Joe Biden added Harris to his ticket to draw votes away from the Trump/Pence ticket.

Mario Apuzzo, Esq.
January 11, 2021


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