As the forensic audits in Arizona near to a close, and other states like Pennsylvania, Michigan, and Georgia begin to consider their own audits, rumors have swirled throughout the conservative world of a possible reversal of the election results once the fraud is proven. This rumor has been even been promoted by the likes of Mike Lindell as he travels throughout the country at various Freedom Rallies.
Those in conservative circles, including Jenna Ellis (who led President Trump’s legal team during the post-election fight), who have called this into question have often received nothing but scorn and ridicule from other conservatives. So we felt it prudent to examine the issue more thoroughly from a legal perspective.
The Legal Theater
Let’s begin by setting the stage with a brief discussion of how our system of laws, as laid out in the Constitution and the Federal Statutes, functions. When a crime is committed, proof of that crime alone is not enough to convict. That evidence must be tested and tried in a court of law. This process is clearly laid out in the 6th Amendment:
“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.”
The purpose of this is to prove beyond a reasonable doubt that the evidence against the accused is sufficient to warrant a conviction. Without this process, we have the same kind of lawlessness that led to mob lynchings in the Democrat-controlled South after the Civil War, where the accused is convicted on the basis of falsified evidence heard by a biased judge and jury.
Law and order is much more than just evidence. It is the system established for evaluating that evidence against the statutory laws passed by the people’s representatives (State Legislatures/Congress) and existing case law.
Both statutory and case law are critically important in this process. Statutory law establishes the legal standard, and case law ensures consistent application of that legal standard across all applicable cases within a given jurisdiction. This is a broad generalization, of course, but it is sufficient for our purposes here.
How This Applies To Election Theft
While most, if not all, conservatives believe that the election was stolen, that belief alone is not enough to prove it. That’s the purpose of the forensic audits…to gather the evidence necessary to prove the theft beyond a reasonable doubt.
Just as with criminal cases, however, once that evidence is obtained it still has to be handled within the framework of our Constitution and laws in order to prove in a court of law that has jurisdiction over the case at hand that the election was stolen. That’s where the process of getting Trump “reinstated” hits a roadblock.
Jurisdiction, as stated in the 6th Amendment, is a critical aspect of the law. In our system of law and order, you can’t just take any case you want to any judge/court available. A prosecutor wouldn’t take a criminal case to a family law court any more than a defendant wouldn’t take their case to an appeals court before the case is heard in district court.
The case has to be argued before a court that has jurisdiction over the case. This is what the 6th Amendment means when it states that cases must be tried, “by an impartial jury of the state and district wherein the crime shall have been committed.”
In court pleadings, that is often the first issue that is dealt with. A prosecutor will prove that the court hearing the case has jurisdiction, meanwhile a defense attorney will often try and get a cased dismissed if he or she can argue successfully that the court lacks the jurisdiction to hear the case.
We are seeing the effects of jurisdiction here in Oklahoma after the Supreme Court’s decision in the McGirt case, which ruled that the State of Oklahoma did not have the jurisdiction to prosecute crimes committed by tribal members on tribal land.
The Presidency of the United States is, as it should be, out of the jurisdiction of most courts in the United States. This is why a President cannot be tried in a civil or criminal court while in office. They must be tried in a special “court” of impeachment conducted by the U.S. Senate only after charges have been brought by the House.
This is how our Framers established it in the Constitution, and is part of what has allowed the U.S. Presidency to be the most stable chief executive position of any country in the world since our nation’s founding.
How this creates a problem is that regardless of whether the election was fraudulent, Joe Biden was sworn in as the 46th President of the United States on January 20th. As such, there is only one way in our Constitution of removing a sitting President: Impeachment.
The Writ of Quo Warranto
There is a little known writ added to the D.C. Code a little over 100 years ago called the Writ of Quo Warranto that allows one to challenge an illegitimately seated President of the United States. This writ was used in 2011 in Drake v. Obama during the legal challenge to Obama’s qualifications to be President. That case, which was brought before the 9th U.S. Circuit, was dismissed because the court held that according to the D.C. Code the proper venue for the Writ was the D.C. Federal District Court.
Theoretically, if the evidence was strong enough, President Trump could file a Writ of Quo Warranto in the D.C. Federal District Court challenging the illegitimate seating of Biden as President. The problem here is that this is the same court that illegally convicted General Flynn by using The Hammer to pre-select the jury pool thereby ensuring that regardless of which jurors were selected the prosecution would win. If General Flynn, who was innocent, couldn’t win in that scenario, Trump likely couldn’t either.
Beyond that, even if by a miracle from Heaven Trump did win, this would not automatically mean he would be sworn in. Biden and Harris would be removed, but under the 25th Amendment the Presidential line of succession would then kick in. That leaves us with none other than President Nancy Pelosi.
Trump For Congress?
The only other scenario for Trump to regain the Presidency prior to the 2024 elections would be if Trump ran for Congress out of Florida. Assuming the GOP retakes the house during the ’22 midterms he would presumably be elected Speaker of the House, and then could lead an impeachment against Biden and Harris.
However, the House can only bring charges. It’s up to the Senate to convict and remove the President (and Vice President in this case) from office…and that takes a 2/3rds majority of 67 votes. Right now the GOP is about 18 votes shy of being able to pull that off (assuming Romney would vote against impeachment).
So What’s The Point Of The Audits?
You maybe asking by now, “if we can’t get Trump back in office, then what’s the point of going through all of the audits?” Think of it this way, even though you can’t bring the dead victim back to life each murder needs to be investigated and prosecuted in order for us to still have a society of law and order.
No, Trump is not going to be “reinstalled” as President. As we’ve clearly laid out, there is no legal vehicle to accomplish that since he is outside the Presidential line of succession. We have survived as a Nation this long because our system has stood the test of time…regardless of who is President. We’ve had far worse President’s than Biden (Obama, Andrew Jackson, and Woodrow Wilson, to name a few) and have survived.
The fight to prove the election theft is each one of the states in question taking responsibility for the debacle that they allowed to happen back in November. After all, our Constitution leaves it up to each of the States to determine the “Times, Places and Manner of holding Elections for Senator and Representative.”
If we are ever to fix this mess, and truly secure the blessings of Liberty to our posterity, it is up to the individual States to investigate and prosecute the election theft, and pass the laws necessary to ensure that it never happens again. If they don’t, then Trump not getting back in office is going to be the least of our worries.