UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA,

v.
Case No. 23-257 (TSC)
DONALD JOHN TRUMP

Defendant.

MEMORANDUM IN SUPPORT OF MOTION FOR CONDITIONAL INTERVENTION

Comes now John Doe, in propria persona, stating the following in this Memorandum

in Support of Motion for Conditional Intervention, pursuant to the Tenth Amendment of the

United States Constitution:

INTRODUCTION

As a Jeffersonian originalist, Movant learned a long time ago that the Constitution “is a

mere thing of wax in the hands of the judiciary, which [judges] may twist and shape into any

form they please.” Thomas Jefferson, Letter (to Spencer Roane) (Sept. 6, 1819) at 2. Movant

has yet to meet an honest jurist and, following Judge Silberman,1 despair at the prospect of

ever encountering one in the wild. The short tour of American jurisprudence in the decades

since Movant entered law school is judges “constitutionaliz[ing] our personal preferences.”

1
As your own learned colleagues—who are, presumably, in a position to know—openly admit, judges are
inveterate sociopaths. Judge Laurence Silberman of the D.C. Court of Appeals confessed that he was “in des-
pair” about the United States Supreme Court, in asserting that every one of the Justices “is guilty, to one degree
or another, of violating the two most basic rules of restrained judicial behavior: ruling only on questions pre-
sented by the case at hand, and interpreting precedents honestly." Benjamin Wittes, Without Precedent, 296-2
Atlantic Monthly 39 (Sept. 2005). A seriatim list of concurrences would make War and Peace read like a novella
by comparison.

1
Silveira v. Lockyer, 328 F. 3d 567, 568 (9th Cir. 2003) (Kozinski, J., dissenting from denial

of rehearing en banc).

Movant cannot hope to clean out our juridical Augean Stables in this forum; all that can

be done is to provide this tribunal a path from the Constitution—private criminal prosecu-

tion—to action which may preserve it. And this requires starting with the Constitution.

ARGUMENT

A. Reading Law: A Matter of Interpretation2

We have now sunk to a depth at which the restatement of the obvious is the
first duty of intelligent men.
~George Orwell3

The Framers made no effort to define the “judicial Power” because they didn’t have to.

Lord Bacon observed that the office of the judge "is jus dicere, and not jus dare; to interpret

law, and not to make law, or give law." Francis Bacon, Essays LVI (Of Judicature) (1620).

Lord Coke maintained that "[i]t is the function of a judge not to make, but to declare the law,

according to the golden mete-wand of the law and not by the crooked cord of discretion." 1

E. Coke, Institutes of the Laws of England 51 (1642). Blackstone adds that a judge is "sworn

to determine, not according to his own judgments, but according to the known laws.” 1 Wm.

Blackstone, Commentaries on the Laws of England *69 (1765). “The judicial power to de-

termine law is a power only to determine what the law is, not to invent it.” Anastasoff v.

United States, 223 F.3d 898, 901, vacated as moot, 234 F.3d 1054 (8th Cir. 2000). Further,

2
This is a conflation of the titles of two tomes authored by the late Antonin Scalia while he was busy not doing
his day job: Antonin Scalia and Bryan Garner, Reading Law: The Interpretation of Legal Texts (Thomson/West
2012), and Antonin Scalia, et al., A Matter of Interpretation: Federal Courts and the Law (Amy Gutmann, ed.)
(Princeton U. Pr. 1998).
3
George Orwell, The Taming of Power (book review), New Adelphi, Vol. 15-16 (Jan. 1939), at 205.

2
as the legislative power is vested in Congress, U.S. Const. art. I, judges have no lawmaking

power whatever. See 28 U.S.C. § 2072 (court rulemaking authority lies with Congress).

Mindful that “the discretion of the judge is the first engine of tyranny," 4 C. Gibbon, The

History of the Decline and Fall of the Roman Empire 385 (1776-89) (Philips Samson, and

Co. 1856), Alexander Hamilton argued that to "avoid an arbitrary discretion in the courts, it

is indispensable that [judges] should be bound by strict rules and precedents, which serve to

define and point out their duty in every particular case before them." The Federalist No. 78,

470 (Alexander Hamilton) (I. Kramnick ed. 1987).4

Whereas precedent told judges “what the law is,” canons of construction explain how to

apply it. While testi-lying before the Senate Judiciary Committee, Judge Kavanaugh admit-

ted that a judge “must interpret the Constitution as written, informed by history and prece-

dent” and “interpret the law, not make the law” (citing Federalist 83), adding that “rules of

legal interpretation are rules of common sense.”5 At the appellate level, judging is not rocket

science.

First and foremost, the object of constitutional interpretation is to give effect to the ex-

pressed intent of its framers. Lake County v. Rollins, 130 U.S. 662, 670 (1889). Legislators

are presumed to have said what they meant and meant what they said, Connecticut Nat’l

Bank v. Germain, 503 U.S. 249, 253-54 (1992) (Thomas, J.; collecting 200 years’ worth of

4
Concurrences would fill a Brandeis brief. Jefferson envisioned the judge as “a mere machine,” expecting that
the law “be dispensed equally & impartially to every description of men.” Thomas Jefferson, Letter (to Edmund
Pendleton), Aug. 26, 1776. Professor (Justice) Story adds that “A more alarming doctrine could not be prom-
ulgated by any American court, than that it was at liberty to disregard all former rules and decisions, and to
decide for itself [what the law is], without reference to the settled course of antecedent principles.” 1 J. Story,
Commentaries on the Constitution of the United States 350 (1838). As in all but the most exotic cases, the
“law” is established, the judge was expected to be little more than an administrator, playing what Professor
Llewellyn called “the game of matching cases.” Karl Llewellyn, The Bramble Bush 49 (1960).
5
Brett Kavanaugh’s Opening Statement to Senate Judiciary Committee, CNN, Sept. 4, 2018 (unpaginated).

3
cases), and “[a]bsent a clearly expressed legislative intention to the contrary, that language

must ordinarily be regarded as conclusive." Consumer Product Safety Commission v. GTE

Sylvania, Inc., 447 U.S. 102, 109 (1980).6 Accordingly, the first step in interpretation of any

legislative provision “is to determine whether the language at issue has a plain and unam-

biguous meaning with regard to the particular dispute in the case." Robinson v. Shell Oil Co.,

519 U.S. 337, 340 (1997) (Thomas, J.).

“It cannot be presumed that any clause in the constitution is intended to be without effect;

and, therefore, such a construction is inadmissible, unless the words require it.” Marbury v.

Madison, 5 U.S. 137, 174 (1803). Moreover, “where a technical word is used [in the Con-

stitution], all the incidents belonging to it necessarily attended it." 3 J. Elliot, Debates on the

Federal Constitution 531 (1836) (remarks of James Madison).7 Considered in pari materia,

these rules provide a coherent framework for resolving virtually any constitutional dispute.

The Constitution was a treaty between thirteen co-sovereigns; the pre-existing common law,

textual and substantive canons, and common language defined all terms.8

Residual ambiguities were resolved by resort to common sense. The office of the judge

is “to make such construction [of a law] as shall suppress the mischief, advance the remedy,

6
There was no legislative history published for the United States Constitution and apparently, this was by
design. See, James Madison, The Journal of the Debates in the Convention which Framed the Constitution of
the United States, May-September, 1787 (1837), G. Hunt, ed. (G. P. Putnam's Sons, 1908).
7
This understanding was also assumed by Judge Pendleton, John Marshall, and Edmund Randolph during that
and subsequent debate. 3 Elliot at 546, 558-59, 573; United States v. Wilson, 32 U.S. 150, 160 (1833).
8
According to Madison, there is one and only one correct way to interpret the Constitution:
I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and
ratified by the nation. In that sense alone is it the legitimate Constitution. And if that not be the guide
in expounding it, there can be no security for a consistent and stable, more than for a faithful exercise of
its powers.
James Madison, Writings of James Madison: 1819-1836 191 (G. Hunt ed. 1910) (emphasis added); accord,
e.g., Thomas Jefferson, Letter (to Wilson Nicholas), Sept. 7, 1803 at 2; Antonin Scalia, God’s Justice and Ours,
First Things 17 (May, 2002).

4
and to suppress subtle invention and evasions for continuance of the mischief ... according

to the true intent of the makers of the act." Heydon's Case [1584] 76 Eng. Rep. 637 (Exch.).

Pacta sunt servanda. Every word had a meaning and purpose, and in those rare instances

where the letter of the law was not sufficiently pellucid, We Citizens expected You Judges

to give life to the ultimate intent of the drafters of legislation. We expect judges to be repos-

itories of common sense, and to exercise it liberally. As the Constitution would never pre-

cipitate an absurd and unjust result where any plausible alternative is available, see e.g.,

United States v. American Trucking Assns., Inc., 310 U.S. 534, 542-43 (1940); Haggar Co.

v. Helvering, 308 U.S. 389, 394 (1940), we expect judicial decisions to make sense.

But judging is a little like going to the loo: “The job ain’t over ‘til the paperwork is done.”

Justice Breyer observes:

Judges do not simply announce a legal conclusion. They reason their way to that con-
clusion in an opinion written for all to see. The obligation to provide legally defensible
reasoning in a publicly accessible format prevents a judge from escaping accountability.
Indeed, a good judicial opinion is transparent and informative. It shows that the decision
is principled and reasoned. The strength of this reasoning matters.

Stephen Breyer, Making Our Democracy Work: A Judge’s View 83 (2010). Former Chief

Justice Hughes adds, "there is no better precaution against judicial mistakes than setting out

accurately and adequately the material facts as well as the points to be decided." Charles E.

Hughes, The Supreme Court of the United States 64 (1928).

The Breyer standard is not just a statement of best practices, but what we have a consti-

tutional right to demand. Every American—from the lowliest serf to the mightiest prince—

has a right to “adequate, effective, and meaningful” access to federal court.9 Judges have a

9
Bounds v. Smith, 430 U.S. 817, 822 (1977). More directly, we have a constitutional right to "equal and impar-
tial justice under the law," Leeper v. Texas, 139 U.S. 462, 468 (1891), and where “there is a legal right, there

5
corresponding duty to provide it," Mondou v. New York, N.H. & H.R. Co., 223 U.S. 1, 58

(1912), and willful failure to do so is a federal crime. E.g., 18 U.S.C. § 3 (aiding and abet-

ting); 18 U.S.C. §§ 241-42 (conspiracy against rights).

1. The Original Judicial Sin: Boni Judicis est Ampliare Jurisdictionem.

The “genius document”10 we call our Constitution—as opposed to the bastardized ver-

sion illicitly imposed upon us by our corrupt, power-besotted judiciary—was replete with

effective internal controls intended to forestall abuses of the judicial power. But as Jefferson

rightly predicted, e.g., Thomas Jefferson, Letter (to Charles Hammond), Aug. 18, 1821 at 1,

self-serving judges would “interpret” these sensible internal controls out of existence. As

your colleague Justice Thomas states, “the structure of the government that was supposed to

protect our liberty. And what has happened through the years is that the protections afforded

by that structure have been dissipated.” A Conversation with Justice Clarence Thomas, 36-

10 Imprimis 6 (Oct. 2007).

One of the most persistent weaknesses in the English system of government was that

judges were accountable to the government, either in the person of the King or Parliament.

As English judges generally preferred to keep their lucrative sinecures, they faced the temp-

tation to place their fingers on the scales of justice to the benefit of the Crown. English law

developed an array of effective remedies to ameliorate this problem.

is also a legal remedy by suit, or action at law, whenever that right is invaded," Marbury v. Madison, 5 U.S.
137, 163 (1803), for to “take away all remedy for the enforcement of a right is to take away the right itself.”
Poindexter v Greenhow, 114 U.S. 270, 303 (1884).
10
Nomination of Elena Kagan to be Associate Justice of the United States Supreme Court, United States Senate
Cmte. on the Judiciary, Jun. 29, 2010 (statement of Elena Kagan), at 96, http://www.washingtonpost.com/wp-
srv/politics/documents/KAGANHEARINGSDAY2.pdf.

6
 The crown jewel of the English legal system was the right to have a trial by jury, under

which, the judge was reduced to little more than father-confessor. It "is the most transcend-

ent privilege which any subject can enjoy, of wish for, that he cannot be affected either in

his property, his liberty, or his person, but by the unanimous consent of twelve of his neigh-

bours and equals." 4 Blackstone, Commentaries at *379. It “is a fundamental law, made

sacred by the Constitution, and cannot be legislated away." Vanhorne's Lessee v. Dorrance,

2 U.S. 304 (D.Pa. 1795) (Paterson, J, riding circuit). According to Framer (and signatory to

the Declaration of Independence) Elbridge Gerry, its purpose was to “guard agst. corrupt

Judges.” 2 Farrand, The Records of the Federal Convention of 1787 587 (1909)—a sentiment

unanimously echoed by his contemporaries.11 This venerable institution, revered by the

Founding Fathers,12 was even at one time respected by You Judges:

It may not be amiss, here, Gentlemen, to remind you of the good old rule that on ques-
tions of fact, it is the province of the jury; on questions of law it is the province of the
court to decide. But it must be observed that by the same law which recognizes this
reasonable distribution of jurisdiction, you have nevertheless a right to take upon
yourselves to judge of both, and to determine the law as well as the fact in contro-
versy. On this and on every other occasion, however, we have no doubt you will pay
that respect which is due to the opinion of the court: for, as on the one hand, it is pre-
sumed, that juries are the best judges of facts, it is, on the other hand, presumable that

11
See also, 1 J. Elliot, Debates at 504 (remarks of Mr. Lee, of Virginia); accord, e.g., The Federalist No. 83 at
465 (Alexander Hamilton); Thomas Jefferson, Letter (to William C. Jarvis), Sept. 28, 1820, at 1; 2 John Adams,
The Works of John Adams, Second President of the United States 253 (Charles F. Adams ed., Little, Brown &
Co. 1850). See also, Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322, 343 (1979) (Rehnquist, J., dissenting).
There is no contrary authority.
12
Concurrences read like a Brandeis brief. Quoting Blackstone and Matthew Hale, Elbridge Gerry observed
“that property, liberty and life, depend on maintaining in its legal force the constitutional trial by jury,” and
that it “is adapted to the investigation of truth beyond any other the world can produce.” Elbridge Gerry, Ob-
servations on the New Constitution, and on the Federal and State Conventions (1788), as reprinted in, Pam-
phlets on the Constitution of the United States, Published During its Discussion by the People, 1787-1788 10
(P. Ford ed. 1888). John Dickenson viewed it as a "Heaven-taught institution," Fabius, Letter (to the editor),
Delaware Gazette (1788), as reprinted in, John Dickinson, The Letters of Fabius, in 1788, on the Federal
Constitution; and in 1797 on the Present Situation of Public Affairs 32 (1797), and one of "the corner stones
of liberty." Id. at 34. Criticism of the institution is notable only by its absence.

7
 the court is the best judge of law. But still both objects are lawfully, within your
power of decision."

Georgia v. Brailsford, 3 U.S. 1 at 4 (emphasis added).

The Seventh Amendment provides, in pertinent part, that "the right to trial by jury shall

be preserved," U.S. Const. amend. VII—"the right which existed under the English common

law when the Amendment was adopted," Baltimore & Carolina Line, Inc. v. Redman, 295

U.S. 654, 657 (1935)—and an unbroken two-century line of Supreme Court decisions, holds

that if a court procedure alters the substance of the English common law jury trial as it existed

back in 1791, e.g., Thompson v. Utah, 170 U.S. 343, 350 (1898) ("common law" refers to

the English common law, in 1791), it is unconstitutional. But if Movant tried to enforce that

right to the jury trial our Framers intended to “preserve” in this Court, you would look at me

as if I just arrived from the planet Neptune.13 But again, Movant is not here to fix that.

2. The Ninth Amendment: Madison’s Rosetta Stone

While the Framers did not provide us a legislative history for the Constitution, they did

for the Bill of Rights, and that fact is of paramount importance, as the Ninth Amendment

provides: “The enumeration in the Constitution, of certain rights, shall not be construed to

deny or disparage others retained by the people.” U.S. Const. amend. IX. On its face, it is a

mandatory canon of judicial construction, guaranteeing that enumerated and unenumerated

rights were treated as being equal in dignity and force. And were there any doubt on this

13
The singular virtue of the jury trial was that it ensured that the claims would be heard by a fair and independ-
ent tribunal. It was a “security against corruption,” as “it would be necessary to corrupt both court and jury” to
subvert justice. The Federalist No. 83 at 465-66 (Alexander Hamilton); see Sir John Hawles, The Englishman's
Right: A Dialogue Between a Barrister at Law and a Juryman 71-2 & fn. (1844) (1680). What today’s courts
are doing is spectacularly unconstitutional. See e.g, Suja Thomas, Why Summary Judgment Is Unconstitutional,
93 U.Va. L. Rev. 139, 144 (2007).

8
score, it was extinguished by author James Madison. In introducing his draft of our Bill of

Rights to the House of Representatives, he explained that he consciously avoided attempting

to enumerate all the rights retained by the people, arguing that

“….by enumerating particular exceptions to the grant of power, it would disparage those
rights which were not placed in that enumeration; and it might follow by implication,
that those rights which were not singled out, were intended to be assigned into the hands
of the General Government, and were consequently insecure. This is one of the most
plausible arguments I have ever heard urged against the admission of a bill of rights into
this system; but, I conceive, that it may be guarded against. I have attempted it, as gen-
tlemen may see by turning to the last clause of the fourth resolution.”

1 Annals of Congress 456 (1789) (remarks of Rep. Madison).

The clause in question provides:

"The exceptions here or elsewhere in the Constitution, made in favor of particular rights,
shall not be so construed as to diminish the just importance of other rights retained by
the people, or as to enlarge the powers delegated by the constitution; but either as actual
limitations of such powers, or as inserted merely for greater caution.”

Id. at 452 (emphasis added).

To a man, the Framers believed that all men were “endowed by their Creator with certain

unalienable Rights.” Declaration of Independence, para. 2 (U.S. 1776). All that government

could do is take them away and then, only where specified in the federal and various State

constitutions. Whether profound or trivial, every natural right you can think of is protected

from infringement by the mob. Including, and not incidentally, the right to not have to re-

move your hat in a courtroom in deference to the judge.14 As such, government can only

infringe upon those rights that were willingly relinquished by the people, and only when

needed to discharge its legitimate duties as our authorized agents. Professor Barnett refers

14
The People’s {Ancient and Just} Liberties Assrted in the Tryal of William Penn and William Mead (Sept.
1670) (trial of Pennsylvania founder William Penn). In a land where “all men are created equal,” the right not
to genuflect to a superior authority is necessarily implicit, irrespective of whether that refusal was borne of
religious conviction. As such, Penn’s was not a “religious” right protected by the First Amendment. But it
would seem, on its face, to be so trivial a matter that it could easily be found to be “non-fundamental.”

9
to this foundational concept as "the presumption of liberty." See Randy Barnett, Restoring

the Lost Constitution: The Presumption of Liberty (2004). Distilled to essentials, we agree

to relinquish some of our natural rights and assume certain obligations in exchange for a

portfolio of procedural remedies (“civil rights”) which preserve the rights we retain. E.g.,

Mass. Const. (1780), part 1, art. X-XI.15

A fair summation of English jurisprudence is the development of effective legal remedies

for those whose rights have been wrongfully invaded, so that the subject would never be put

in a position where s/he is forced to resort to self-help. As Jefferson explained, the purpose

of a written constitution is to “bind up the several branches of government ... to render un-

necessary an appeal to the people, or in other words a rebellion, on every infraction of their

rights.” Thomas Jefferson, Notes on the State of Virginia 255 (Query 13) (1783). This also

includes a tool box of writs used to force our servants in government to discharge the duties

imposed by their agency. The most familiar of these remedies is the writ of habeas corpus.

Sometimes referred to as the “Great Writ,” it is not granted by government but rather, a pre-

existing natural remedy recognized in Britain for centuries. The Constitution can only re-

strict it and then, only at need. U.S. Const. art. I, § 9, cl. 2. Another is the right to remove a

judge from office for malfeasance, enshrined in the Article III Good Behaviour Clause. As

long as these rights were respected, revolution became unnecessary.

15
As former Judge Michael McConnell of the Tenth Circuit explained,
“the essence of the social contract is that we relinquish certain of our natural rights—most fundamentally,
the right to be a judge in our own case and to do violence—use violence against others, and we receive
in return more effectual protection for certain of our rights, plus the enjoyment of certain positive rights:
that is, rights that are created by the creation of political society. Civil rights are the rights we enjoy after
entering the state of civil society....”
Michael W. McConnell, Natural Rights, Enumerated Rights, and the Ninth Amendment, Sumner Canary Lec-
ture (Case Western U., Wednesday, Oct. 28, 2008) (transcribed by author; emphasis added), video available at
http://www.youtube.com/watch?v=bLANRrZPm-k (last visited Mar. 16, 2009).

10
 Under this paradigm, “government” was a simple contract, dissolved via breach by one

of the parties.16 Sovereignty—the jura summa imperii—was retained by the people, holding

it as tenants-in-common. Governments are our authorized agents, with powers enumerated

in constitutions. Our national Constitution (and its predecessor) is a treaty between thirteen

co-sovereigns, expressly delegating a portion of their delegated sovereignty. See e.g., N.H.

Const. part 1, art. 7. The people retain the right to revolution, Declaration of Independence,

para. 2 (U.S. 1776), N.H. Const. part 1, art. 10, which is unenumerated and protected by the

Ninth and Tenth Amendments. The “right” to keep and bear arms and organize into militias

is not a separate right, so much as it is a remedy.

3. Private Criminal Prosecution: A Non-Defeasible Prerogative of Citizenship

Assume for a moment that you were the father of Jaycee Dugard, the Nevada girl kid-

napped and held for two decades, forced to bear two children sired by her kidnapper.17 Now

assume that the local prosecutor, invoking his "prosecutorial discretion," refused to

16
Whenever agents of the government “endeavour to take away, and destroy the property of the people, or to
reduce them to slavery under arbitrary power, they put themselves into a state of war with the people, who are
thereupon absolved from any farther obedience, and are left to the common refuge, which God hath provided
for all men, against force and violence.” John Locke, Second Treatise of Civil Government (1690), ch. XIX, §
222.
17
'She's A Survivor': Jaycee Dugard 30 Years Later And Why Investigators Recently Questioned Kidnapper
Again, CBS News Sacramento, Jun. 11, 2021, at https://www.cbsnews.com/gooddaysacramento/news/jaycee-
dugard-30-years-later-garrido/

11
prosecute her kidnapper. As a father, what would you do? The rest of us can make an edu-

cated guess. To prevent that, every civilised society built on the rule of law has devised a

mechanism for private prosecution of criminals.

From time immemorial, it has been the common duty of every Englishman—including

the King—to keep the King’s peace, and one of the tools handed down was the right of any

subject—now, citizen—to enforce the law by prosecuting criminals. As Canada’s Depart-

ment of Justice observes, the right (and duty) to initiate a private criminal prosecution is one

of those common law safeguards—"a valuable constitutional safeguard against inertia or

partiality on the part of authority," Gouriet v. Union of Post Ofc. Workers, [1978] A.C. 435,

477 (H.L.) (Canada)—flourishing a pedigree as old as the common law itself:

A private citizen's right to initiate and conduct a private prosecution originates in the
early common law. From the early Middle Ages to the 17th century, private prosecu-
tions were the main way to enforce the criminal law. Indeed, private citizens were re-
sponsible for preserving the peace and maintaining the law.18

In 1789, private criminal prosecution was a practical necessity. The world’s first bona

fide police force would form decades into the future,19 and essentially by default, the re-

sponsibility of enforcing public order fell upon the populace.20 The federal government re-

lied on qui tam actions for enforcement of the law,21 and for centuries, “it was not only the

privilege but the duty of the private citizen to preserve the King's Peace and bring offenders

to justice.”22

18
Canada Dept. of Justice, The Federal Prosecution Service Deskbook, Part IV, ch. 26 (undated and unpagi-
nated; copy on file).
19
Charles P. Nemeth, Private Security and the Law 6 (3d ed. 2004).
20
See e.g., People ex rel. Case v. Collins, 19 Wend. 56, 65 (N.Y. Sup. Ct. 1837 (mandamus); People ex rel.
Blacksmith v. Tracy, 1 Denio. 617, 618 (N.Y. Sup. Ct. 1845) (general rule unless statute provides otherwise).
21
Steven L. Winter, The Metaphor of Standing and the Problem of Self-Governance, 40 Stan. L. Rev. 1371,
1406-08 (Jul. 1988).
22
Note 18, supra.

12
 As our society and law became more complex, we delegated this task to professionals.

But “one of the ultimate sanctions [of the common law] is the right of private persons to lay

informations and bring prosecutions,” Lund v Thompson [1958] 3 All E.R. 356, 358; accord,

Gouriet, supra. at 498, and it was a well-established principle of statutory construction that

"[t]he common law ... ought not to be deemed to be repealed, unless the language of a statute

be clear and explicit for this purpose." Fairfax's Devisee v. Hunter's Lessee, 11 U.S. 603,

623 (1813). "Statutes which invade the common law ... are to be read with a presumption

favoring the retention of long-established and familiar principles, except when a statutory

purpose to the contrary is evident [and] to abrogate a common-law principle, the statute must

"speak directly" to the question addressed by the common law.” United States v. Texas, 507

US 529, 534 (1993) (quotations and citations omitted). This, in turn, begs two questions:

(1) Has Congress ever attempted to repeal this right, and if so, (2) does it even have the raw

power to do so? As it is a fundamental right essential to preservation of our liberty not

relinquished in the Constitution, the answer must be no.

The power to either force officials to prosecute a crime or prosecute it yourself is ubiqui-

tous in democratic countries—and even in countries that are not exactly staunch redoubts of

human rights, such as Zimbabwe. Even in Harare, a victim of a crime has the legal right to

prosecute if their Attorney-General declines:

In all cases where the Attorney-General declines to prosecute for an alleged offence,
any private party, who can show some substantial and peculiar interest in the issue of
the trial arising out of some injury which he individually has suffered by the commission
of the offence, may prosecute, in any court com-petent to try the offence, the person
alleged to have committed it.

Criminal Procedure and Evidence Act, 2004, [Chapter 9:07], Part 13 (Zimbabwe).

13
 The salutary purpose of such a rule, according to Justice Holmes, was to accommodate a

natural desire for revenge within the law by avoiding "the greater evil of private retribution."

Oliver W. Holmes, The Common Law 41-42 (1881). Thus, even in Tanzania, the idea that

the State can be trusted with the exclusive, uncontrolled franchise in prosecution of crimes

is inconceivable, as Professor Nreseko of the University of Botswana notes, relating com-

ments in an unpublished case of that nation's Court of Appeals:

We are surprised because we did not think anyone in our country could be vested with
such absolute and total powers. It would be terrible to think that any individual or group
of individuals could be empowered by law to act even mala fide. As it turned out to our
great relief the exercise of the powers by the DPP under the Criminal Procedure Act is
limited by the Act. Although the powers of the DPP appear to be wide, the exercise is
limited by three considerations. That wherever he exercises the wide powers he must do
so only in the public interest, in the interest of justice and in the need to prevent abuse
of the legal process.

D. N. Nsereko, Prosecutorial Discretion Before National Trials and Int'l Tribunals, Int'l Soc'y

for the Reform of Criminal Law (undated), at http://www.isrcl.org/Papers/Nsereko.pdf,

quoting Director of Public Prosecutions v. Mehboob Akbar Haji & Another, Cr, App. No.

28 of 1992 (unreported).

No other country in the civilised world—and not even Zimbabwe!—thinks it is a good

idea to grant the State an exclusive franchise to decide which crimes it will prosecute, and

which it will ignore, without any external control whatever. The right exists throughout the

Commonwealth, even if it is invoked only rarely. E.g., Barrymore Facing Pool Death Case,

BBC News, Jan. 16, 2006 (Great Britain); Plans For Private Prosecution Against Winnie,

BBC News, Nov. 26, 1997 (South Africa: prosecution of Winnie Mandela pro-posed). Ma-

laysia allows private criminal prosecution by the aggrieved party, Criminal Procedure Code,

Act 593, Sec. 380 (Malaysia) and even citizen's arrests. Id., Sec. 27(1). While this appears

to be a relatively new development, India limits the citizen's standing to initiate a criminal

14
prosecution of public servants to those directly impacted by their alleged acts. Private com-

plaint can't be based to prosecute public servant: Court, DNAIndia.com (Press Trust India),

Oct. 16, 2010, at http://www.dnaindia.com/india/1453552/reportprivate-complaint-can-t-

be-used-to-prosecutepublic-servant-court. The procedure is unsettled in Kenya, Kenya: DPP

Urges Court to Drop Private Prosecution Case, The Star (Nairobi), Aug. 5, 2013, reprinted

at http://allafrica.com/stories/201308052173.html (the right itself appears to be intact, but

the procedure is uncertain), and appears robust in Jamaica, Private citizens can initiate crim-

inal prosecutions without fiat from DPP - AG's Chambers, The Gleaner (Jamaica), Nov. 30,

2015, https://jamaica-gleaner.com/article/lead-stories/20151202/private-citizens-can-initi-

ate-criminal-prosecutions-without-fiat-dpp, but for the most part, Commonwealth nations

tend to follow the example of Mother England.

Pretty much every other reasonably civilized country on the face of this earth has devised

some formal mechanism for controlling reluctant prosecutors. A brief survey of established

Western democracies reveals that, in most instances, prosecutors have little or no discretion

as to whether to prosecute a crime. Italy includes an express duty to prosecute in its consti-

tution. Costituzione della Repubblica Italiana [Constitution] art. 112 (Italy 1947). As anyone

who has been following the news already knows, Martin Sieff, Spain Wants Torture Charges

Against Bush Six Dropped, UPI, Apr. 16, 2009, Spain trusts her citizens with wide latitude

to initiate criminal proceedings. Constitución Espanola de 1978 [1978 Constitution] art. 125

(Spain). Prosecutorial discretion in most states is governed by statute and often, quite lim-

ited. See e.g., Hans-Heinrich Jescheck, The Discretionary Powers of the Prosecuting Attor-

ney in West Germany, 18 Amer. J. Comp. L. 508 (1970). In the Netherlands, whereas public

prosecutors have sole prosecuting authority and statutory discretion as to whether to forego

15
prosecution in the "public interest," an aggrieved victim can take her prosecutors to court to

force a prosecution. Openbaar Ministerie, The Principle of Expediency in the Netherlands

(Power Point presentation), Oct. 27, 2006, at http://eulec.org/Downloads/intstrafrecht/expe-

diency-china.pps. The Phillippines has a separate court—the Sandiganbayan—quite literally

dedicated to prosecuting public corruption, where private prosecutors may intervene in spec-

ified circumstances. See, Magno v. People, G.R. No. 171542 (S.C. Apr. 6, 2011) (discussing

limits on intervention). And unlike the United States, our former protectorate still has the

writ of certiorari. Id.

In our own hemisphere, most countries have robust private prosecution systems. see gen-

erally, Kathryn Sikkink, The Justice Cascade: How Human Rights Prosecutions Are Chang-

ing World Politics (Norton, 2001), and of course, our nice neighbours to the North are light-

years ahead of us on the human rights front. See Gouriet, supra.

What we can say for certain is that there is nothing in the Framers’ Constitution extin-

guishing the right. The constitutional charge to the President that “he shall take Care that

the Laws be faithfully executed,” U.S. Const. art. II, § 3, did not do so, as both the New

York, N.Y. Const. of 1777 art. XIX (1822), and Pennsylvania constitutions, Pa. Const. of

1776, § 20 (1820), had virtually identical clauses, and were not interpreted as banning it; in

Philadelphia, it had devolved into a sort of “blood sport.” Allen Steinberg, "The Spirit of

Litigation:" Private Prosecution and Criminal Justice in Nineteenth Century Philadelphia, 20

J. Social History 231 (1986). Nor can vestment of the executive power in the President, U.S.

Const. art. II, § 1, for the same reason.

Even as late as 1875, there was never any doubt that in America, a victim of a crime had

the clear legal right to prosecute it. See, Winter, Metaphor of Standing at 1403 (however, a

16
minority of states required the relator to allege a private right). In that year, the Supreme

Court found "a decided preponderance of American authority in favor of the doctrine that

private persons may move for a mandamus to enforce a public duty, not due to the govern-

ment as such, without the intervention of the government law officer." Union Pacific R. Co.

v. Hall, 91 U.S. 343, 355 (1875). The Court drew a "reasonable implication" that by virtue

of its silence, Congress "did not contemplate the intervention of the Attorney General [to

compel compliance with the law] in all cases." Id. at 356.

If the Framers ever intended to deprive citizens of that right, one is left to search in vain

for evidence of that intent. And as the prosecution of crime was not seen as an executive

function in 1791 but rather, one of the well-established prerogatives of the people, it is un-

likely that they would have even perceived the threat that it could be divested by congres-

sional fiat. The question has never been resolved, see, Young v. United States ex rel. Vuitton

et Fils S.A., 481 U.S. 787, 816 and n. 2 (1987) (Scalia, J., concurring in part), but it is hard

to imagine that the “inestimable right ... of invoking the penalties of the law upon those who

criminally or feloniously attack our persons or our property,” Blyew v. United States, 80 U.S.

581, 598 (1872) (Bradley, J., dissenting), would be willingly yielded by an informed popu-

lace, or identify the constitutional mechanism by which it was divested.

In a functional judicial system, a warrant already would have been issued for Defendant

Trump’s arrest. This Court agreed to his pre-trial release, expressly conditioned on his not

violating “federal, state, or local law while on release.” ECF # 13. This Court could take

judicial notice of his conviction on nine counts of criminal contempt in the Supreme Court

of New York, Decision and Order, People v. Trump, No. SMZ 71762-24 and SMZ 71764-

24, N.Y. Sup. Ct., Part 59 (Apr. 30, 2024). And if this were still “a government of laws, not

17
men,” where "[a]ll men are equal before the law," Truax v. Corrigan, 257 U.S. 312, 332

(1921), Citizen Trump would be remanded to custody, like so many of those who partici-

pated in the insurrection of January 6, 2021, pending trial on the merits. But this is America

in 2024, where “ALL ANIMALS ARE EQUAL BUT SOME ANIMALS ARE MORE

EQUAL THAN OTHERS.” George Orwell, Animal Farm, Ch. 10 (1941) (emphasis in orig-

inal). Like Hitler in Nazi Germany, Trump commands an army of berserkers; using that

horde, he has cowed judges, prosecutors, witnesses, jurors, and craven politicians into ac-

ceding to his will. He is engineering a slow-moving coup ďêtat, with the aid of pliant poli-

ticians, prosecutors, and even judges. If there was ever a “break glass in case of emergency”

moment, it is today.

If I had standing to do so, I would respectfully ask this Court to revoke his bail. It is of

no moment that he is running for the Presidency, as Eugene Debs literally ran for the office

from prison. Terence McArdle, The socialist who ran for president from prison—and won

nearly a million votes, Wash. Post (Sept. 22, 2019). In addition, I would request access to a

grand jury, as seven Article III judges appear to be aiding and abetting the crimes Defendant

Trump stands accused of.23 But all I can do at this point is ask this Court to appoint me as a

substitute prosecutor ex relatione, to stand in the breach if Defendant Trump again becomes

President Trump and orders his Attorney General to drop the case.

23
To wit, Judge Cannon, and Chief Justice Roberts, and Justices Thomas, Alito, Gorsuch, Kavanaugh, and
Barrett (“the Conspiring Justices”). Whereas the Department of Justice may have a policy prohibiting the pros-
ecution of a sitting President, it does not appear to foreclose indictments, Robert G. Dixon, Jr., Amenability of
the President, Vice President and other Civil Officers to Federal Criminal Prosecution while in Office, Dept.
of Justice Ofc. of Legal Counsel (Sept. 24, 1973), and Movant could pursue crimes committed by other parties,
which would almost certainly involve that of being accessories after the fact. 18 U.S.C. § 3.

18
B. JANUARY 6TH WAS A DRESS REHEARSAL

“Mussolini was a clown. Hitler was very lazy. It’s not as if they are always paragons of

self-discipline and organization.”24 But they both eventually succeeded, and it can happen

here.25 History might not repeat itself, but it has a disturbing tendency to rhyme. As Harvard

political scientist Steven Levitsky observes, the Russian Revolution of 1905 was the “dress

rehearsal” for the October Revolution of 1917.26 January 6th was Trump’s Beer Hall Putsch,

with tactics reportedly purloined from the storming of the Winter Palace in St. Petersburg.27

This Court will be holding the equivalent of the Treason Trial,28 provided it ever occurs.

While Trump might find planning a birthday party challenging, his entourage has a plan

for evading accountability for the array of crimes for which he was indicted and for weapon-

izing the Department of Justice. Moreover, they brazenly published their nefarious scheme

in black-and-white:

Promptly and Properly Eliminating Lawless Policies, Investigations, and Cases,

Including All Existing Consent Decrees. Few things undermine the DOJ’s credibility
more than brazenly partisan and ideologically driven prosecution of an Administration’s
perceived political enemies, yet the department has readily indulged in such misadven-
tures during the Biden Administration. Before even entering the Robert F. Kennedy
building on January 20, 2025, the next Administration should …
• In a manner consistent with applicable law, prepare a plan to end imme-
diately any policies, investigations, or cases that run contrary to law or
Administration policies.

24
Ben Jacobs, Is Trump’s Coup a ‘Dress Rehearsal?’, N.Y. Magazine, Dec. 27, 2020, https://nymag.com/intel-
ligencer/2020/12/historians-fear-trumps-failed-coup-is-a-dress-rehearsal.html.
25
Alex Henderson, "Every failed coup is just practice": Domestic extremism is going to get worse, intel expert
warns, Salon, Oct. 4, 2021, https://www.salon.com/2021/10/04/every-failed-coup-is-just-practice-domestic-
extremism-is-going-to-get-worse-intel-expert-warns_partner/.
26
Note 23, supra [Jacobs].
27
Alan Feuer, et al., Proud Boys Charged With Sedition in Capitol Attack, N.Y. Times, June 6, 2022,
https://www.nytimes.com/2022/06/09/us/politics/proud-boys-charged-sedition-capitol-attack.html
28
See The Failed Coup That Led To Hitler's 'Mein Kampf' (audio interview) Fresh Air, NPR, Jan. 14, 2016, at
https://www.npr.org/2016/01/14/463028807/the-failed-coup-that-led-to-hitlers-mein-kampf

19
Mandate for Leadership: The Conservative Promise 557 (Heritage Fdn. 2023) (emphasis in

original).

The Don has already pledged to pardon his fellow co-conspirators, Hannah Rabinowitz

and Katelyn Polantz, Trump’s January 6 pardon pledge baffles some attorneys, CNN, Feb.

5, 2022, and “[i]f he took office again, Trump could indeed order his attorney general to

simply drop any federal charges he still faces even if the cases were in progress.” Mag-

gie Haberman and Alan Feuer, Blame Shifting, Attacks and Legal Gaslighting, N.Y. Times,

Nov. 26, 2023 (emphasis added). The only catch, of course, is that he has to get elected.

“Whoever, knowing that an offense against the United States has been committed … as-

sists the offender in order to hinder or prevent his … trial or punishment… is an acces-

sory after the fact.” 18 U.S.C. § 3 (emphasis added). In the matter styled United States v.

Trump, Case No. 23-80101-CR-CANNON(s), Judge Aileen Cannon has displayed a breath-

taking level of tyrannical partiality29 and disregard for her judicial obligations, interfering in

the investigation without colorable jurisdiction, Trump v. United States, No. 22-13005 (11th

Cir. Dec. 1, 2022), slip op. at 2-3, and slow-walking the prosecution by failing to schedule

crucial hearings in a timely manner. See e.g., Hugo Lowell, Trump classified documents trial

running about four months behind schedule, The Guardian (U.K.), Nov. 17, 2023.

And she has accomplices.

29
Article III judges “shall hold their Offices during good Behaviour.” U.S. Const. art. III, § 1. English law
sourced in Coke and Blackstone defines this seemingly abstruse term of legal art with remarkable precision.
By making a public official subject to removal for violating it, the condition of “good behavior” defined the
powers of any given office. Coke and Blackstone listed four separate grounds for the violation of good behavior
tenure relevant to judges: abuse of office, nonuse of office, willful refusal to exercise an office, and oppression
and tyrannical partiality. See generally, Raoul Berger, Impeachment of Judges and “Good Behavior” Tenure,
79 Yale L.J. 1475 (1970). When an Article III judge is elevated to the federal bench, s/he swears an oath to
"administer justice without respect to persons [and] ... faithfully and impartially discharge and perform all the
duties incumbent upon" him or her, 28 U.S.C. § 453, defining the scope of his duties and obligations. “Tyran-
nical partiality … in the administration and under the colour of their office," 4 Blackstone, Commentaries *140,
is grounds for removal from office.

20
 1. ANDERSON: THE PREDICATE

On December 19, 2023, the Colorado Supreme Court issued its opinion in Anderson v.

Griswold, 2023 CO 63 (Colo. 2023), holding that Mr. Trump “was disqualified from holding

the office of President30 under Section Three of the Fourteenth Amendment to the United

States Constitution.” Id., slip op. at 1.31 The controlling question was whether the Amend-

ment was self-executing; the answer was provided by Chief Justice Marshall, in the first case

we all studied in law school:

The constitution is either a superior paramount law, unchangeable by ordinary means,

or it is on a level with ordinary legislative acts, and, like other acts, is alterable when
the legislature shall please to alter it.

If the former part of the alternative be true, then a legislative act contrary to the consti-
tution is not law: if the latter part be true, then written constitutions are absurd attempts,
on the part of the people, to limit a power in its own nature illimitable.

Marbury v. Madison, 5 U.S. 137, 177 (1803).

There is no support in precedent or logic for the proposition that a constitutional provision

must be activated by Congressional legislation to become effective. E.g., United States v.

30
In concluding that the Amendment covered the President, the Anderson majority wrote:
“Senator Reverdy Johnson worried that the final version of Section Three did not include the office of the
Presidency. He stated, “[T]his amendment does not go far enough” because past rebels “may be elected
President or Vice President of the United States.” Cong. Globe, 39th Cong., 1st Sess. 2899 (1866). So, he
asked, “why did you omit to exclude them? I do not understand them to be excluded from the privilege
of holding the two highest offices in the gift of the nation.” Id. Senator Lot Morrill fielded this objection.
He replied, “Let me call the Senator’s attention to the words ‘or hold any office, civil or military, under
the United States.’” Id. This answer satisfied Senator Johnson, who stated, “Perhaps I am wrong as to the
exclusion from the Presidency; no doubt I am; but I was misled by noticing the specific exclusion in the
case of Senators and Representatives.” Id. This colloquy further supports the view that the drafters of this
Amendment intended the phrase “any office” to be broadly inclusive, and certainly to include the Presi-
dency.”
Anderson v. Griswold, No. 23-SA-300 ¶ 140 (Colo. 2023) (slip op.)
31
It provides, in pertinent part: “No person shall … hold any office, civil or military, under the United States
… who, having previously taken an oath … to support the Constitution of the United States, shall have engaged
in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.” U.S. Const.
amend. XIV, § 3.

21
Stanley (Civil Rights Cases), 109 U.S. 3, 20 (1883) (“the Thirteenth amendment, as well as

the Fourteenth, is undoubtedly self-executing without any ancillary legislation”), City of

Boerne v. Flores, 521 U. S. 507, 524 (1997) (Fourteenth); South Carolina v. Katzenbach,

383 US 301, 325 (1966) (Fifteenth).32 Moreover, according to the Senator who introduced

said Amendment to that body, Section Five was remedial in scope, “enabl[ing] Congress, in

case the State shall enact laws in conflict with the principles of the amendment, to correct

that legislation by a formal congressional enactment.” Cong. Globe, 39th Cong., 1st Sess.,

2768 (1868) (statement of Sen. Jacob M. Howard (R-MI)). In the Conspiring Justices’ ma-

jority opinion, they quoted from the paragraph quoted above and as such, were on notice as

to the Amendment framers’ expressed intent. Trump v. Anderson, No. 23–719, 601 U.S. ___

(2024), slip op. at 5.

At the risk of stating the obvious, the purpose of Section 3 of the Fourteenth Amendment

is to disqualify public officials who “engaged in insurrection or rebellion against the United

States” from ever again serving in elected office, subject to a congressional pardon provision.

U.S. Const. amend. XIV, § 3. And when it served his purposes, the bribe-engorged33 Justice

32
While there is no enforceability provision in the original Bill of Rights, that is a function of the fact that they
were not enforceable as against the States. Barron ex rel. Tiernan v. Mayor of Baltimore, 32 U.S. 243 (1833).
Enforceability provisions were added to every subsequent Amendment.
33
Though our Justices appear to be for sale, they don’t come cheap. The steady stream of thinly-disguised
bribes—developer Harlan Crow is this generous with all of his friends, right?— aimed at Justice Thomas in-
cludes a $500,000 cash payment to his wife, an undisclosed number of trips on Crow’s yacht and private jet, a
$175,000 library wing named in his honor, several million to turn the cannery his mother worked for into a
museum—a project reportedly initiated by Thomas himself—and the Bible of firebrand Black abolitionist
Frederick Douglass, valued at $19,000. Mike McIntire, The Justice and the Magnate, N.Y. Times, Jun. 19, 2011,
at A-1. Whether it involves attending secretive junkets offered by the Federalist Society, Brian Ross, Supreme
Ethics Problem, ABC News, Jan. 23, 2006, or duck hunting with a litigant during the pendency of a case,
Cheney v. United States District Court for the District of Columbia, 541 U.S. 913 (2004) (Scalia, J., in cham-
bers) (the value of a bribe is its value to the recipient, e.g., United States v. Gorman, 807 F.2d 1299, 1305 (6th
Cir. 1986); United States v. Williams, 705 F.2d 603 (2d Cir. 1983) (business loan to Senator)), see generally,
Justin Elliott, et al., A “Delicate Matter”: Clarence Thomas’ Private Complaints About Money Sparked Fears

22
Clarence Thomas pompously declared that a court “must presume that a legislature says in

a statute what it means and means in a statute what it says there.” Connecticut Nat’l. Bank

v. Germain, 503 U.S. 249, 253-54 (1992). The language of the Amendment has a plain and

unambiguous meaning, Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997) (Thomas, J.),

and “[a]bsent a clearly expressed legislative intention to the contrary, that language must

ordinarily be regarded as conclusive." Consumer Product Safety Commission v. GTE Sylva-

nia, Inc., 447 U.S. 102, 109 (1980). “When the words of a statute are unambiguous,” sol-

emnly intones Thomas, “this first canon is also the last: ‘judicial inquiry is complete,’” Ger-

main, 503 U.S. at 255, … unless, of course, we don’t like the outcome.34

This is outcome-driven jurisprudence in its most grotesque form. “In a stunning disfig-

urement of the Fourteenth Amendment,” the Conspiring Justices “impressed upon it an ahis-

torical misinterpretation that defies both its plain text and its original meaning.” J. Michael

Luttig and Laurence H. Tribe, Supreme Betrayal, The Atlantic, Mar. 14, 2024. There is no

rational way to get from the text and the “strict rules and precedents, which serve to define

and point out their duty in every particular case before them," The Federalist No. 78, at 470,

to the conclusion that “States have no power under the Constitution to enforce Section 3 with

respect to federal offices, especially the Presidency,” Trump v. Anderson, slip op. at 6, given

that there is no such thing as a federal election.35

He Would Resign, ProPublica, Dec. 18, 2023, https://www.propublica.org/article/clarence-thomas-money-

complaints-sparked-resignation-fears-scotus, our Supreme Court is as compromised as Congress.
34
The Sotomayor “concurrence” in Trump v. Anderson, No. 23-719, 601 U.S. ___ (2024) (Sotomayor, J.,
concurring) at was in substance a dissent.
35
As a matter of definition, there is no such thing as a national election in the United States. Individual States
appoint slates of Electors, chosen “in such Manner as the Legislature thereof may direct.” U.S. Const. art. II,
§ 2, cl. 2. Accordingly, there is no compelling reason why the federal government should ever get involved.
The choice of Electors has always been a matter for each State, and the Electors were free to vote for anyone

23
 “Under the Constitution, judges have power to say what the law is, not what it should be.

The people who ratified the Constitution authorized courts to exercise ‘neither force nor will

but merely judgment.’" Obergefell v. Hodges, 576 U.S. 644, 135 S.Ct. 2584, 2611 (2015)

(Roberts, C.J., dissenting; citation omitted). The rewriting of the Constitution under the false

pretense of interpreting it is “a flagrant perversion of the judicial power,” Heiner v. Donnan,

285 U.S. 312, 331 (1932), intolerable at any time. “This practice of constitutional revision

by an unelected committee of nine robs the People of the most important liberty they asserted

in the Declaration of Independence and won in the Revolution of 1776: the freedom to gov-

ern themselves.” Obergefell, 135 S.Ct. at 2627 (Scalia, J., dissenting).36

they cared to, Ray v. Blair, 343 U.S. 214, 225 (1952), though States may enforce “pledge laws” restricting their
freedom of action. Chiafalo v. Washington, 591 U.S. ___, 140 S.Ct. 2316 (2020).
As state courts of general jurisdiction are perfectly capable of applying federal law, Claflin v. Houseman,
93 U.S. 130 (1876), there is no reason why a State cannot answer the question of whether a candidate for high
office has “engaged in insurrection or rebellion against the United States.” U.S. Const. amend. XIV, § 3. And
as state courts generally follow persuasive opinions from other jurisdictions, see e.g., Evans v. Bd. of County
Com'rs, 482 P.2d 968 (Colo. 1971) (abolishing state sovereign immunity; collecting cases), and the Supreme
Court could fashion a uniform rule where a conflict existed, there was never a compelling need for Congress
to provide guidance on this question. However, if the final resolution by the courts was intolerable, Congress
is empowered to enact remedial legislation. Of course, they presupposed existence of a functional Congress.
36
As Justice Scalia observed, “Judicial decisions, like the Constitution itself, are nothing more than ‘parchment
barriers.’ Both depend on a judicial culture that understands its constitutionally assigned role ... [and] the mod-
esty to persist when it produces results that go against the judges' policy preferences.” Michigan v. Bryant,
562 U.S. ___, 131 S.Ct. 1143, 1176 (2011) (Scalia, J., dissenting). “The Court's temptation is in the quite
opposite and more natural direction—towards systematically eliminating checks upon its own power; and it
succumbs.” Planned Parenthood of S.E. Pa. v. Casey, 505 U.S. 833, 981 (1992) (Scalia, J., dissenting). In two
brief passages, Scalia summarized two centuries’ worth of judicial misconduct. E.g., United States v. Callen-
der, 25 F.Cas. 239, 257 (D.Va. 1800) (Chase, J., riding circuit) (eviscerating the Seventh Amendment).
Concurrences read like a Brandeis brief. Judge Bork describes the Court as a “band of outlaws.” Robert H.
Bork, Our Judicial Oligarchy, 67 First Things 21, 24 (Nov. 1996). Justice Kagan writes that they “forget that
they are judges and that their Court is a court,” Elena Kagan, The Development and Erosion of the American
Exclusionary Rule: A Study in Judicial Method (unpublished Master’s thesis; Apr. 20, 1983).
The academy is no kinder. Professor Karl Llewellyn writes that judges routinely
manhandl[e] ... the facts of the pending case, or of the precedent, so as to make it falsely appear that the
case in hand falls under a rule which in fact it does not fit, or especially that it falls outside of a rule which
would lead in the instant case to a conclusion the court cannot stomach.
Karl Llewellyn, The Common Law Tradition: Deciding Appeals 133 (1960); accord, Richard A. Posner, How
Judges Think 144 (Harv. U. Press 2008). Alan Dershowitz adds. “[S]ome justices actually cheat. … Trust no

24
2. UNITED STATES V. TRUMP (MAR-A-LAGO): THE SCHEME

In isolation, Trump v. Anderson is illegitimate. Problematic. Lawfare. Every member of

the Supreme Court knows better. 37 But in proper context, it creates a constitutional crisis of

Brobdignagian proportion.

In 2020, Defendant Trump appointed Aileen Cannon to a seat on the federal bench; she

was about 40 years of age at the time. “Aileen Cannon,” Wikipedia (accessed Jun. 7., 2024).

Importantly, she was assigned to the West Palm Beach Division of The United States District

Court for the Southern District of Florida. And Defendant Trump lives within the confines

of that Division.38 If Defendant Trump were to ascend again to the Presidency, he would be

able to nominate Judge Cannon for a lifetime appointment to the Supreme Court, as she

would be of “prime age” for ascension to the Court.” Moreover, Cannon either knew or was

one in power, including—especially—judges. … You will be amazed at how often you will find judges “fi-
nessing” the facts and the law.” Alan Dershowitz, Letters To a Young Lawyer 11 (Basic Books 2001).
37
E.g., Justice Sotomayor notes that the “intent of the founders was set forth in the Constitution. They created
the words; they created the document. It is their words that is the most important aspect of judging.” Confir-
mation Hearing on the Nomination of Judge Sonia A. Sotomayor to be Associate Justice of the Supreme Court
of the United States: S. Comm. on the Judiciary, 111th Cong., 245 (1991) (statement of Judge Sotomayor).
Justice Thomas asserted that his job as a judge is “to interpret [lawmakers’] intent, not to second-guess” it.
Nomination of Judge Clarence Thomas to be Associate Justice of the Supreme Court of the United States: S.
Comm. On the Judiciary, 102nd Cong., 144 (1991) (statement of Judge Thomas). Chief Justice Roberts adds
that “the Framers were willing to have the judges decide cases that required them to interpret the Constitution,
because they were going to decide it according to the rule of law.” Confirmation Hearing on the Nomination
of John Roberts to be Chief Justice of the United States: S. Comm. on the Judiciary, 109th Cong., 161 (2005)
(statement of Judge Roberts). Justice Gorsuch observed that “my job is not to write the law, Senator. It is to
apply the law … Our founders were brilliant. They did not give me all the power. I do not wear a crown; I wear
a robe.” Confirmation Hearing on the Nomination of Judge Neil M. Gorsuch to be Associate Justice of the
Supreme Court of the United States: S. Comm. on the Judiciary, 115th Cong. 121, 138 (1991) (statement of
Judge Gorsuch).
When it serves their purposes, the Justices dutifully parrot these limits. E.g., Williams-Yulee v. Florida Bar,
575 U.S. 433, 135 S.Ct. 1656, 1659 (2015); King v. Burwell, 576 U.S. 473, 135 S.Ct. 2480, 2506 (2015) (Scalia,
J., dissenting, with Alito and Thomas). And as the empirical evidence proves beyond cavil, their testimony in
those farcical hearings was demonstrably false and misleading.
38
Alison Durkee, Trump Can Legally Live at Mar-A-Lago Palm Beach Says, Forbes, May 7, 2021,
https://www.forbes.com/sites/alisondurkee/2021/05/07/trump-can-legally-live-at-mar-a-lago-palm-beach-
says/

25
able to discover via reasonable inquiry that Trump prized loyalty and would be likely to

reward her with a spot on the Court if she were to “do him a solid.”39 Convenient.

On or about August 22, 2022, Cannon intervened in a federal investigation into alleged

criminal activity by Mr. Trump and co-conspirators, pursuant to a Motion, styled “In the

Matter of the Search of Mar-a-Lago.” Trump v. United States, 9:22-cv-81294 (S.D. Fla.). In

said Motion, Trump averred: “President[sic] Donald J. Trump is the clear frontrunner in the

2024 Republican Presidential Primary and in the 2024 General Election, should he decide to

run.” Id., Dkt. 1 at 1.

Acts of obstruction by Defendant Cannon in the resolution of that matter, see generally,

18 U.S.C. § 1503, included issuance of an Order to the United States Department of Justice

(DOJ) to release the previously sealed detailed property list of materials seized as the result

of a valid search warrant, to halt its review of all seized materials, and the appointment of

Raymond J. Dearie, senior judge of the U.S. District Court for the Eastern District of New

York, as a special master. On or about December 1, 2022, the Eleventh Circuit ordered the

case to be dismissed because Cannon improperly exercised equitable jurisdiction over it,

writing: “This appeal requires us to consider whether the district court had jurisdiction to

block the United States from using lawfully seized records in a criminal investigation. The

answer is no.” Trump v. United States, No. 22-13005 (11th Cir. Dec. 1, 2022) (slip op. at 2).

39
See, Michael S. Schmidt, Obstruction Inquiry Shows Trump’s Struggle to Keep Grip on Russia Investiga-
tion, N.Y. Times, Jan. 4, 2018 (“Mr. Trump then asked, “Where’s my Roy Cohn?”). He found his Roy Cohn in
“Coverup General” William Barr. See e.g., Elec. Priv. Info. Ctr. v. U.S. Dep’t of Just., 442 F. Supp. 3d 37, 49
(D.D.C. 2020) (“[A] review of the redacted version of the Mueller Report by the Court results in the Court’s
concurrence with Special Counsel Mueller’s assessment that Attorney General Barr distorted the findings in
the Mueller Report.”). “Trump sought three things in his judicial appointees, or as he sometimes called them,
“my judges.” First, he wanted justices who would overturn Roe v. Wade. Second, he wanted “jurists in the
mold of Justices Antonin Scalia, Clarence Thomas and Samuel Alito.” Third, he wanted judges who would
be loyal to him.” David Lat and Zachary B. Shemtob, Trump’s Supreme Court Picks Are Not Quite What You
Think, N.Y. Times, Feb. 12, 2023 (emphasis added).

26
 The Eleventh Circuit further observed that "The law is clear,” reasoning that:

“We cannot write a rule that allows any subject of a search warrant to block government
investigations after the execution of the warrant. Nor can we write a rule that allows
only former presidents to do so. Either approach would be a radical reordering of our
caselaw limiting the federal courts’ involvement in criminal investigations. And both
would violate bedrock separation-of-powers limitations.”

Id., slip op. at 20-21.

On information and belief, a reasonably competent federal district court judge would

know that Mr. Trump’s request was objectively frivolous and thus, Cannon was charged with

the knowledge it was frivolous, and that her Orders had no possible chance of surviving

appellate review and as such, her intent was to assist Plaintiff Trump to “hinder or prevent

his apprehension, trial or punishment.” 18 U.S.C. § 3. The delay in the eventual indictment

of Trump occasioned by Defendant Cannon’s obstruction exceeded four months.

On or about June 8, 2023, Defendant Cannon was assigned a criminal case with former

President Trump as a defendant, styled United States v. Trump. On information and belief,

the probability of her being assigned the case approached 100%, which appears to be ac-

cording to plan.

Section 455(a) of Title 28 of the United States Code provides: “Any justice, judge, or

magistrate judge of the United States shall disqualify himself in any proceeding in which his

impartiality might reasonably be questioned.” The impartiality of a judge who was (1) ap-

pointed by a defendant and (2) improperly interfered in a criminal investigation (3) in a

matter where the outcome would have a substantial likelihood of affecting her career pro-

spects and (4) who failed to disclose lavish ‘gifts’ from known allies of the defendant40 might

40
Lucian K. Truscott IV, Judge Cannon's secret right-wing getaway: Why didn't we know about this?, Salon
(May 7, 2024), at https://www.salon.com/2024/05/07/cannons-secret-right-wing-getaway-why-didnt-we-
know-about-this/

27
reasonably be questioned. Moreover, a reasonably competent federal judge—or, any judge

who could read newspapers41—would be aware of the appearance of a conflict.

“There may be circumstances in which the ties between the judge and the public official

are so close, and the consequences of a ruling adverse to the official are so dire, that disqual-

ification is appropriate regardless of the capacity (if any) in which the official is sued.”

Charles C. Geyh, Judicial Disqualification: An Analysis of Federal Law, 3d. ed. (Federal

Judicial Center, 2020) at 27. The closest analogue Professor Geyh references is a case in-

volving Alabama Governor Don Siegelman, wherein a federal district judge recused sua

sponte on the grounds that his “‘distant relationship’ to [Siegelman’s political rival] Gover-

nor Riley [not a party to the action], plus mere attendance at private political functions for

Bob Riley two years ago, "could raise some public confidence issues.” United States v. Bobo,

323 F. Supp. 2d 1238, 1240 (N.D.Ala. 2004). Under the Bobo standard, Judge Cannon’s

failure to recuse is so far beyond the pale that it constitutes compelling evidence of scienter.

41
E.g., Charlie Savage, Trump Appointee Will Remain Judge in Documents Case, Clerk Says, N.Y. Times,
Jun. 10, 2023, at https://www.nytimes.com/2023/06/10/us/politics/judge-aileen-cannon-trump-docu-
ments.html; Jay Weaver, Some want judge to recuse herself in Trump case. Can and should that still happen?,
Miami Herald, (Jun. 23, 2023), at https://www.miamiherald.com/news/politics-government/arti-
cle276631871.html (Calls for recusal “came largely from the political left but also from some legal experts, all
citing Cannon’s controversial decisions favoring Trump in a civil dispute last year over the FBI’s seizure of
government records from his Palm Beach estate”).

28