Proposed Construction under Rule 12

Alter v Trump (judge Tanya Chutkin presiding)

US DISTRICT COURT

for the DISTRICT OF COLUMBIA

JOE ALTER,

Plaintiff,

v. Civil Action No. 26-1506 (TSC)

DONALD J. TRUMP,

President of the United States,

Defendant.

NOTICE OF PLAINTIFF’S PROPOSED CONSTRUCTIONS PURSUANT TO DKT. 16 AND APPLICATION TO DEFENDANT’S MOTION TO DISMISS

Plaintiff respectfully submits the following proposed constructions pursuant to Dkt. 16 and applies them to Defendant’s pending Motion to Dismiss.

Defendant invokes Lujan v. Defenders of Wildlife at the threshold and contends that the Court therefore lacks jurisdiction to proceed further. That contention does not place Lujan, the Complaint, or the Constitution outside the Court’s authority to construe. Rule 12 supplies the assumed allegations and reasonable inferences; the Court determines their legal significance; and Defendant’s threshold authorities are applied to the controversy thereby identified.(1)

Defendant declined to provide counterpart constructions under Dkt. 16, maintaining that “the Government’s position is there is no jurisdiction” and that “[i]f there is no jurisdiction, the Court must dismiss the case.”(2) Plaintiff therefore proceeds with the first three phases proposed there: assume the allegations, construe the governing law, and apply those constructions to the Motion.

The alleged facts matter. They concern specific conduct capable of proof or disproof, much of it anchored in identified primary-source judicial and governmental records. Rule 12 assumes those allegations now; it neither adjudicates them nor converts them into hypotheticals. If the action proceeds, genuinely disputed material allegations remain capable of ordinary factual testing.(3)

Defense may decide to revisit doctrine at merits, but the constructions should be finalized in this proceeding.

On that posture, and allegations set forward in this case assumed true, Plaintiff proposes the following constructions:

1. Donald J. Trump has, by the conduct alleged, disqualified himself under Section 3 from presently holding the Office of President, and from thereafter holding any office within Section 3’s scope, unless that disability is removed through the constitutional mechanism for relief provided by Section 3. (4)

2. Section 3 regulates qualification for public trust, not punishment or private property. Judicial recognition of an existing disability neither creates the disability nor itself punishes or removes the officeholder.(5)

3. On the assumed allegations, Section 3 applies. The alleged subsequent official assistance constitutes “aid or comfort”; the January 6 allegations reasonably support the inference that Defendant “engaged in” the insurrection; either route is sufficient; the disability therefore attaches and the resulting tenure is constitutionally impermissible.(6)

4. Trump v. Anderson does not make Section 3’s disability dependent upon congressional creation. It limits state enforcement against candidates for federal office; it does not make the disability nonexistent until Congress acts or prohibit judicial declaration in an Article III case.(7)

5. The Petition Clause protects Plaintiff’s individual presentation of this constitutional grievance. Article III separately governs adjudication, but the widespread character of the constitutional interest does not extinguish the individual exercise of an expressly protected right.(8)

6. The assumed allegations present an Article III Case or Controversy. They concern Defendant’s present tenure under an alleged constitutional prohibition, continuing conduct satisfying “aid or comfort,” adverse parties disputing the legal consequence, and a requested final declaration resolving that relation.(9)

7. Final declaratory judgment is judicial redress, not an advisory opinion merely because it is non-coercive. Congress expressly authorized declaration in an “actual controversy,” “whether or not further relief is or could be prayed,” with the force of final judgment.(10)

8. Redressability is measured against the relief actually requested. Final resolution of Defendant’s constitutional status supplies the requested redress without removal, damages, an injunction, supervision of DOJ, or an order to Congress.(11)

9. The requested judicial act is non-punitive and judicial. Presidential damages and criminal-prosecution authorities concern materially different burdens; declaration of constitutional status and execution of resulting consequences are distinct constitutional acts.(12)

10. Lujan does not close the jurisdictional gate presented here. Lujan requires attention to the actual legal and factual relationship presented, recognizes different Article III treatment in different postures, and did not adjudicate this non-punitive constitutional declaratory configuration and therefore does not reasonably attach in this posture.(13)

11. This action is not Lujan’s generalized Executive-enforcement grievance. Plaintiff seeks no supervision of Executive administration or enforcement against third parties; the alleged disability, tenure, continuing conduct, and requested declaration concern Defendant himself.(14)

12. Steel Co. does not bar the construction necessary to decide jurisdiction. The allegations are concrete, testable, and assumed under Rule 12, not hypothetical premises invented to decide an independent merits question; construing their legal significance to determine jurisdiction is not hypothetical jurisdiction.(15)

13. A jurisdictional objection does not make Executive characterizations of fact or constructions of law binding judicial premises. Rule 12 governs treatment of the allegations; the Court determines the governing law.(16)

14. The alleged continuing Executive conduct makes the controversy present and operational and independently satisfies Section 3’s “aid or comfort” branch on the assumed allegations. (17)

15. Applied to the controversy actually alleged and construed, Defendant’s threshold authorities do not defeat Article III jurisdiction. The alleged injury is not extinguished because widely shared; causation is direct; the requested declaration supplies redress; and the judicial act sought does not appropriate another branch’s powers.(18)

16. Once the alleged constitutional disability is determined, the resulting exercise of public power supplies a concrete subject for the individual right of redress asserted here; in this non-punitive declaratory posture, adjudication of that disability is not foreclosed merely because the constitutional injury is broadly shared. Accordingly, the jurisdictional gate cannot close.

I. SECTION 3

Section 3 provides that a qualifying oath-holder who thereafter “engaged in insurrection or rebellion” or gave “aid or comfort to the enemies thereof” “shall not” hold the specified offices, and then provides:

“But Congress may by a vote of two-thirds of each House, remove such disability.”(19)

The text states the disability before assigning Congress authority to remove it. It does not say Congress first creates or imposes it, nor does it imply any hesitation, the opposite in fact.

The Reconstruction debates directly confronted whether exclusion from office was punishment. Senator Trumbull responded to that characterization:

MR. TRUMBULL. “They seem to have peculiar notions in Wisconsin in regard to offices, and the Senator who has just taken his seat regards it as a punishment that a man cannot hold an office. Why, sir, how many suffering people there must be in this land!”(20)

Trumbull proceeded by comparison to existing constitutional qualifications for the Presidency, including the Constitution’s citizenship qualification. The exchange thus treated exclusion from office not as punishment imposed upon a private entitlement, but by comparison to constitutional qualifications governing eligibility to exercise public authority.(21)

The same debate separately addressed the constitutional mechanism for relief from the disability. Senator Van Winkle asked Senator Howard whether that authority could operate only generally or also in an individual case:

MR. VAN WINKLE. “I understand the Senator from Ohio to say that the meaning of the last clause of this section, which clause tends to reconcile me to the whole section, is that there can only be a general removal of this disability by a general amnesty; and although he did not say distinctly that there could not be a removal of the disability in an individual case, I should like to know what is the understanding, at least of the mover of this proposition, in reference to that point.”

MR. HOWARD. “If I understand the inquiry ... I do not so understand the clause. I understand that the clause gives to Congress full discretionary power ... in an individual case ... or a part of the whole. Any portion of persons here proscribed may be pardoned, or rather this disability may be removed as to any portion of them in detail or in gross.”(21)

The distinction is structural. Section 3 supplies the disability and itself provides the constitutional mechanism for relief from it: “Congress may by a vote of two-thirds of each House, remove such disability.” Congress exercises that constitutionally assigned power; it does not thereby create the disability it is empowered to remove.

Section 3 regulates qualification for governmental authority. It fines no one, imprisons no one, confiscates no property, and awards no damages. Its subject is whether a person satisfying specified constitutional conditions may exercise public power. The debates repeatedly speak in terms of office, qualification, honor, trust, and governmental authority.(22)

That distinction matters here. Plaintiff does not ask the Court to punish Defendant or itself execute the consequences of Section 3. He asks whether the assumed facts describe a tenure the Constitution permits. The Presidency does not alter the character of that inquiry. As this Court stated in litigation arising from January 6:

“Presidents are not kings.”(23)

Presidential authority remains constitutional authority held subject to constitutional conditions.

On the Rule 12 allegations, Section 3’s alternative predicates are satisfied. The Complaint alleges the requisite prior oath; an insurrection directed toward interruption of the constitutional transfer of presidential power; Defendant’s conduct before, during, and surrounding January 6; and later official conduct assisting, protecting, vindicating, rehabilitating, or materially benefiting persons adjudicated guilty of January 6 offenses, including seditious conspiracy.(24)

Section 3 is written in the alternative: “engaged in” insurrection or gave “aid or comfort.”

On the assumed later conduct, “aid or comfort” applies. The allegations concern use of presidential and Executive authority to pardon, assist, protect, vindicate, rehabilitate, or materially benefit persons whose conduct produced criminal judgments arising from the effort to obstruct the constitutional transfer of presidential power.(25) Assuming those allegations true, governmental assistance conferring legal, governmental, reputational, or material benefit upon those participants constitutes “aid or comfort” within Section 3.

That route independently satisfies Section 3.

The allegations concerning Defendant’s own conduct before, during, and surrounding January 6 additionally support the reasonable inference at Rule 12 that he participated in and therefore “engaged in” the alleged insurrection.(26) That inference remains capable of later testing if the action proceeds.

Either route is sufficient. Section 3 does not require both.

The allegations are not theoretical. Many concern judgments, pardons, Executive Orders, official filings, directives, and other primary-source governmental or judicial records. Other disputed allegations may require proof later. Their Rule 12 assumption therefore permits legal construction without prematurely adjudicating the merits.(27)

Accordingly, on the assumed allegations, “aid or comfort” applies; engagement is reasonably inferred; Section 3 applies; the disability attaches; and the resulting tenure is constitutionally impermissible.

Trump v. Anderson does not alter that construction. Anderson held that Colorado could not enforce Section 3 against a candidate for federal office through the state process employed there and recognized federal enforcement authority in Congress.(28)

This action asks no State to remove a candidate from a ballot, no court to legislate under Section 5, and no court to exercise Congress’s two-thirds power to remove a disability. It also seeks no judicial order removing Defendant from office.

Those are distinct constitutional acts.

Indeed, Section 3’s express authorization that Congress may “remove such disability” presupposes a disability capable of existing before Congress removes it. Anderson does not hold that Congress first creates the disability the Constitution says Congress may remove, nor does it prohibit an Article III court from construing constitutional status in a case otherwise within the judicial power.(29)

Congress treated officeholding not principally as a private right of the officeholder, but as a public trust involving only the constitutional exercise of authority borrowed from the people, and therefore fundamentally subject to their right to seek redress when it falls outside of that scope. The debates indicate little particular concern for the officeholder’s “feelings” or “rights” once bound by his own conduct. The concern instead was with the damage such a person could do while entrusted with public office.

II. PETITION, ARTICLE III, AND DECLARATORY REDRESS

The First Amendment protects “the right of the people . . . to petition the Government for a redress of grievances.”(30) Plaintiff invokes that right concerning an alleged present constitutional disability of the person presently exercising presidential authority.

Blackstone described “applying to the courts of justice for redress of injuries” and separately described petition as a right “appertaining to every individual.”(31) Petition remains individually exercised even where the subject of the grievance is widely shared.

Plaintiff does not contend that Petition eliminates Article III “case or controversy” requirements. Petition protects presentation of the grievance. Section 3 supplies the constitutional rule alleged to be violated. The assumed facts supply the controversy. Article III determines whether the judicial power extends to it. Declaratory judgment supplies the requested form of redress.(32)

Bond v. United States reinforces the related structural point. Constitutional structure does not protect governmental entities alone; structural limitations also protect individual liberty and may be invoked by an individual whose constitutional interests are affected.(33)

The breadth of a constitutional interest therefore does not itself erase the individual’s constitutional relationship to it.

Article III extends the judicial power to Cases and Controversies, including Cases “arising under this Constitution.”(34) Standing doctrine implements that limitation, but it must be applied to the controversy actually alleged.

Marbury describes the judicial function within that boundary:

“It is emphatically the province and duty of the judicial department to say what the law is.”(35)

Here Defendant presently occupies the office; under the foregoing construction the assumed later conduct satisfies “aid or comfort”; the January 6 allegations additionally support a reasonable inference of engagement; the parties dispute the constitutional consequence; and Plaintiff requests a final declaration of that legal relation.(36)

That is the controversy to which Defendant’s standing authorities must be applied.

The Declaratory Judgment Act confirms the judicial character of the requested relief. Congress authorized declaration:

“In cases of actual controversy”

“whether or not further relief is or could be prayed,”

with “the force and effect of a final judgment or decree.”(37)

The legislative debate expressly tested the advisory-opinion boundary. Representative Zioncheck asked whether a court could provide a constitutional determination “before any actual controversy arises.”(38) Congress preserved the requirement of an actual controversy while expressly allowing final declaration without additional coercive relief.(39)

The distinction is therefore between an actual controversy and a hypothetical one, not between coercive relief and declaration.

Redressability must likewise be measured against the relief actually requested. Plaintiff asks the Court to declare Defendant’s status under Section 3. He does not ask the Court to remove Defendant, command Congress, invalidate pardons, award damages, supervise DOJ, or impose punishment.

Super Tire Engineering Co. v. McCorkle confirms that declaratory relief may resolve an ongoing legal controversy even without coercive relief directed toward the event that initially produced it.(40)

The declaration is the redress sought. Whatever lawful consequences thereafter belong to other constitutional actors are distinct from whether the judgment resolves the legal relation before this Court.

Once the alleged constitutional disability is determined, the resulting exercise of public power supplies a concrete subject for the individual right of redress asserted here. In the non-punitive declaratory posture presented, adjudication of that disability is not foreclosed merely because the constitutional injury is broadly shared.

III. THE REQUESTED JUDICIAL ACT IS NON-PUNITIVE

The presidential authorities invoked against this action address materially different burdens.

Nixon v. Fitzgerald concerned personal civil damages liability for presidential conduct.(41) The Moss Office of Legal Counsel memorandum concerned indictment and criminal prosecution of a sitting President and the stigma, diversion, impairment, and institutional burdens associated with criminal prosecution.(42)

This action involves neither.

Clinton v. Jones confirms that presidential status does not categorically insulate a President from judicial process merely because litigation concerns the President; the constitutional analysis considers the character and burden of the proceeding.(43)

Plaintiff seeks no damages, prosecution, arrest, injunction, removal order, direction of Executive discretion, or continuing judicial supervision.

He seeks a declaration.

If Section 3 itself states the disability, judicial recognition of that condition does not itself impose punishment.

Nor does it appropriate another branch’s power. Congress retains its Section 5 authority and its express two-thirds power to remove a Section 3 disability. The Executive retains every lawful Executive power. The Court is asked only to declare the disputed constitutional legal relation.

Declaration of constitutional status and execution of resulting consequences are distinct constitutional acts. This action asks only for the former.

IV. LUJAN

Lujan identifies injury in fact, causation, and redressability as the “irreducible constitutional minimum of standing.”(44) Plaintiff does not ask the Court to disregard Lujan. The issue is what Lujan requires when applied to the constitutional posture actually alleged.

Lujan itself makes posture material:

“the nature and extent of facts that must be averred . . . or proved . . . in order to establish standing depends considerably upon whether the plaintiff is himself an object of the action.”(45)

The opinion thereafter distinguishes differing legal relationships before determining how Article III applies.

In rejecting the procedural-right theory before it, Lujan emphasized:

“This is not a case where plaintiffs are seeking to enforce a procedural requirement the disregard of which could impair a separate concrete interest of theirs....”(46)

It separately distinguished injuries shared by many persons, including mass fraud and mass tort, and the “unusual case” involving a congressionally created private interest serving a public purpose.(47)

Footnote 7 states:

“There is this much truth to the assertion that ‘procedural rights’ are special....”(48)

A person accorded such a right protecting a concrete interest may proceed:

“without meeting all the normal standards for redressability and immediacy.”(49)

The Court’s example was a person living beside a proposed federally licensed dam who could challenge failure to prepare an environmental impact statement even without establishing that the statement would alter the agency’s ultimate decision.(50)

Footnote 8 likewise states:

“We do not hold that an individual cannot enforce procedural rights; he assuredly can....”(51)

Plaintiff does not contend that the Petition right asserted here is identical to the statutory procedural right discussed in Lujan. The relevance is Lujan’s method. It examines the asserted right, the plaintiff’s relationship to the challenged conduct, the role of third parties, and the requested judicial consequence before determining how Article III operates.

That same examination matters here.

For purposes of Defendant’s Motion, the Court has before it concrete assumed allegations which, under the foregoing construction, satisfy Section 3’s “aid or comfort” branch; reasonably support the additional inference of engagement; concern the named Defendant’s own tenure; remain capable of later proof or disproof; and support a request solely for final declaration.

Lujan considered or distinguished regulated plaintiffs, third-party regulatory chains, environmental and aesthetic injuries, procedural rights, licensing and hearing cases, mass fraud and tort, congressionally created interests, generalized enforcement grievances, and causation or redressability dependent upon independent third parties.(52)

It did not adjudicate this configuration.

That does not remove this case from Lujan. It identifies the controversy to which Lujan must actually be applied.

Nor is this Lujan’s generalized Executive-enforcement grievance. Its separation-of-powers concern involved converting a generalized interest in governmental compliance with law into judicial supervision of Executive administration.(53)

Plaintiff requests no such supervision.

He asks for no order directing an agency to enforce federal law against third parties.

The alleged constitutional disability concerns Defendant himself.

The alleged prohibited tenure is Defendant’s own.

The continuing conduct is attributed to Defendant or Executive authority under him.

The requested declaration concerns Defendant’s constitutional status.

Those distinctions go directly to Lujan’s rationale.

Nor does Lujan treat the breadth of an injury as mechanically dispositive. Its own discussion distinguishes shared mass injuries and other postures rather than simply asking how many people are affected.

Lexmark likewise cautions against allowing broad standing terminology to obscure the actual legal rule and relationship being adjudicated.(54)

Lujan remains binding. Applied to the controversy actually alleged and construed, however, it does not close the jurisdictional gate.

V. STEEL CO. AND THE RULE 12 POSTURE

Steel Co. rejected “hypothetical jurisdiction”: assuming an unresolved jurisdictional question in order to decide an independent merits question.(55)

Plaintiff asks the Court to do neither.

The relevant distinction is simple.

A hypothetical fact is an invented premise.

An assumed allegation is a concrete proposition treated as true at Rule 12.

An adjudicated fact has been tested through proof.

Plaintiff relies upon the second.

The allegations concern specific conduct by identifiable actors and are substantially anchored in judicial and governmental records. If the case proceeds, genuinely disputed material allegations may be tested through ordinary evidentiary processes.(56)

Plaintiff does not ask the Court to assume jurisdiction, adjudicate whether those events actually occurred, and then decide their constitutional consequences.

He asks the Court to take the allegations in the posture Rule 12 requires, construe their legal significance, and determine whether Defendant’s jurisdictional objection succeeds.

That is not hypothetical jurisdiction.

Steel Co. itself distinguishes jurisdiction from substantive questions concerning particular conduct. It used examples such as whether omission of an item constituted failure to “complete” a form or whether a manner of delivery complied with a requirement to “submit” it.(57)

The Court need not resolve analogous factual merits questions here. It need only determine what constitutional condition the allegations present if true.

Steel Co., quoting Bell v. Hood, recognizes jurisdiction where:

“the right of the petitioners to recover under their complaint will be sustained if the Constitution and laws of the United States are given one construction and will be defeated if they are given another,”(58)

absent an immaterial or wholly insubstantial federal claim.

That is the construction dispute presented here.

Helmerich further recognizes that a jurisdictional inquiry may require resolution of overlapping substantive legal questions. Where resolving jurisdiction requires the court to “inevitably decide” such a question, “so be it.”(59) Brownback likewise recognizes circumstances in which jurisdictional and substantive inquiries overlap.(60)

Those authorities do not permit a court to assume jurisdiction. They establish that necessary jurisdictional construction is not the hypothetical-jurisdiction practice Steel Co. prohibits.

Defendant’s competing descriptions do not alter that principle. Calling the grievance generalized, Section 3 dependent upon congressional action, Anderson dispositive, or declaratory relief nonredressive are legal constructions. They are not facts established by the filing of a jurisdictional motion.(61)

A jurisdictional objection therefore does not convert Executive characterizations of fact or constructions of law into binding judicial premises.

The proceedings before Judge Williams provide a useful illustration of that distinction. Executive characterizations and legal constructions did not simply become the predicates of judicial disposition because threshold jurisdiction was contested. The court examined the record and independently construed the questions necessary to determine the proper disposition.(62)

Here the task is narrower still. Plaintiff does not presently ask this Court to resolve a competing evidentiary record. Rule 12 supplies the factual premise. What is principally disputed is legal significance.

Defendant therefore cannot characterize the controversy one way, invoke that characterization to establish absence of jurisdiction, and then invoke the asserted absence of jurisdiction to prevent judicial examination of the construction upon which dismissal depends.

Rule 12 supplies the assumed facts.

The Court supplies the governing constructions.

The jurisdictional authorities are then applied to the controversy thereby identified.

VI. APPLICATION TO DEFENDANT’S MOTION TO DISMISS

On the foregoing constructions, Defendant’s threshold authorities do not defeat Article III jurisdiction.

The alleged constitutional injury is not extinguished merely because others share it. Plaintiff alleges present exercise of presidential authority by a person subject, on the assumed record and proposed Section 3 construction, to an express constitutional disability. He individually petitions for final judicial resolution of that relation. Bond confirms that structural constitutional protections may secure individual liberty while operating systemically.(63)

Causation is direct. The alleged disability concerns Defendant’s own conduct and tenure. The later acts satisfying “aid or comfort” are attributed to Defendant or Executive actors operating under presidential authority. Unlike the regulatory chain in Lujan, the constitutional relationship does not principally depend upon speculative independent conduct by unrelated third parties.

The requested declaration supplies the requested redress. It determines whether Defendant’s present tenure conforms to Section 3. Plaintiff seeks no judicial guarantee of every downstream consequence and no additional coercive remedy. Final resolution of the disputed legal relation is itself the relief requested.

Separation of powers is preserved. Section 3 states the disability. Congress retains its Section 5 enforcement authority and express power to remove the disability. The Executive retains every lawful Executive power. Petition presents the grievance. Article III supplies the judicial function. The Court is asked to declare the disputed legal relation, not exercise powers assigned elsewhere.

The controversy is also present and operational. The Complaint alleges subsequent clemency, official vindication, efforts concerning adjudicated convictions, and continuing governmental conduct directed toward persons involved in January 6.(64)

Under the foregoing Section 3 construction, those alleged acts do more than preserve a historical controversy. Taken as true, they independently constitute “aid or comfort.”

The supplemental materials illustrate that continuing pleaded theory without adding new claims. The Rhodes materials concern Executive efforts affecting completed January 6 judicial proceedings and Judge Mehta’s insistence upon an independent judicial role rather than acceptance of a “mere conclusory statement.”(65)

The Executive Order submitted at Dkt. 26 supplies another example. It announces an Executive construction of the Fourteenth Amendment and translates that construction directly into governmental command, providing that “no executive department or agency shall” act inconsistently with it.(66)

The Trump v. IRS materials provide a separate illustration. Judge Williams’s proceedings concern Executive representations and governmental actions involving the Anti-Weaponization Fund, releases, litigation and settlement authority, and statements or testimony attributed to Deputy Attorney General Todd Blanche concerning judicial review.(67)

Those materials matter here for two limited purposes. First, they illustrate the Complaint’s already-pleaded theory that Executive legal constructions are being translated into present governmental acts affecting adjudicated matters and governmental resources. Second, they illustrate the distinction between Executive characterization and independent judicial construction.

The sixteen constructions therefore operate together.

Section 3 states a constitutional disability and distinguishes disability from punishment.

On the assumed allegations, “aid or comfort” applies and engagement is reasonably inferred.

Anderson does not make that disability dependent upon congressional creation.

The Petition Clause protects individual presentation of the grievance while Article III separately governs adjudication.

The allegations present a current dispute concerning Defendant’s constitutional status.

Declaratory judgment is final judicial relief, and redressability is measured against the declaration requested.

The requested judicial act is non-punitive and does not appropriate the powers of another branch.

Lujan remains controlling but must be applied to this constitutional posture rather than mechanically to the generalized Executive-enforcement grievance it rejected.

Steel Co. prohibits hypothetical jurisdiction, not legal construction against concrete and testable allegations assumed under Rule 12.

Executive characterizations of fact or constructions of law do not become binding premises merely because Defendant invokes jurisdiction.

The alleged continuing conduct makes the controversy present and, under the assumed allegations, independently satisfies “aid or comfort.”

Applied together, Defendant’s authorities do not defeat Article III jurisdiction.

The jurisdictional gate therefore does not close.

Defendant’s Motion to Dismiss should be denied.

If the action proceeds, disputed allegations remain capable of ordinary factual testing. The separate “engaged in” route may require proof concerning Defendant’s participation, purpose, knowledge, or intent. Because Section 3 is written in the alternative, however, the construction that the assumed subsequent conduct constitutes “aid or comfort” may substantially narrow what factual questions remain. Governing doctrine may return as necessary against the legal framework selected here.(68)

CONCLUSION

Jurisdiction cannot be assumed. Neither can the construction necessary to determine jurisdiction be assumed away.

Rule 12 supplies concrete assumed allegations and reasonable inferences. The Court determines their legal significance. Defendant’s threshold authorities are then applied to the controversy thereby identified.

On those constructions, Lujan does not close the jurisdictional gate, Steel Co. does not prohibit the inquiry necessary to determine jurisdiction, and Anderson does not make Section 3’s disability dependent upon congressional creation. The requested declaration supplies the requested redress without exercising powers belonging to another branch.

Plaintiff respectfully asks the Court to deny Defendant’s Motion to Dismiss and proceed under the resulting constructions to whatever factual and legal questions remain under Dkt. 16.

Dated 8/23/2026

Respectfully Submitted,

Joe Alter, Pro se

FOOTNOTES

(1) Dkt. 16; Defendant’s Motion to Dismiss, Dkt. 19; Defendant’s Reply, Dkt. 23; Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 89, 94-95 (1998).
(2) Dkt. 28 at 2. During the meet-and-confer concerning Dkt. 16, Defendant stated that “the Government’s position is there is no jurisdiction” and that “[i]f there is no jurisdiction, the Court must dismiss the case.” Defendant did not submit counterpart constructions.
(3) Compl., Dkt. 1; Dkts. 9, 16, 17, 26, 28, 29, 35 and accompanying exhibits. Plaintiff relies upon primary-source materials here not for premature factual findings but to identify allegations concerning concrete conduct capable of ordinary evidentiary testing if the action proceeds.
(4) U.S. Const. amend. XIV, § 3; Dkt. 28 & Ex. A.
(5) Dkt. 28 & Ex. A; corrected Fig. 2, Dkt. 35.
(6) Compl., Dkt. 1 ¶¶ 23-30, 44-58; Dkt. 16 at 8-10; Dkts. 17, 26 & Exs.; corrected Fig. 2, Dkt. 35.
(7) Trump v. Anderson, 601 U.S. 100, 109-15 (2024); U.S. Const. amend. XIV, §§ 3, 5.
(8) U.S. Const. amend. I; Dkt. 29; Bond v. United States, 564 U.S. 211, 220-23 (2011); Borough of Duryea v. Guarnieri, 564 U.S. 379, 387-88 (2011).
(9) U.S. Const. art. III, § 2; Compl. ¶¶ 23-30, 44-58; Dkts. 16, 26, 29.
(10) Act of June 14, 1934, ch. 512, 48 Stat. 955; 78 Cong. Rec. 8224 (1934), reproduced at Dkt. 29-2; 28 U.S.C. § 2201.
(11) Compl. ¶¶ 53-59; Super Tire Eng’g Co. v. McCorkle, 416 U.S. 115, 121-26 (1974); Dkt. 29.
(12) Nixon v. Fitzgerald, 457 U.S. 731, 749-56 (1982); Clinton v. Jones, 520 U.S. 681, 702-06 (1997); Randolph D. Moss, Assistant Attorney General, Office of Legal Counsel, A Sitting President’s Amenability to Indictment and Criminal Prosecution, 24 Op. O.L.C. 222 (2000).
(13) Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-78 & nn.7-8 (1992).
(14) Id. at 576-78; Compl.; Dkt. 16.
(15) Steel Co., 523 U.S. at 89, 93-102; Bolivarian Republic of Venezuela v. Helmerich & Payne Int’l Drilling Co., 581 U.S. 170, 178-79 (2017); Brownback v. King, 592 U.S. 209, 217 & n.8 (2021).
(16) Dkts. 19, 23; Steel Co., 523 U.S. at 89; Bell v. Hood, 327 U.S. 678, 685 (1946); Trump v. Internal Revenue Service materials discussed infra notes 62 and 67.
(17) Compl. ¶¶ 23-30, 44-58; Dkts. 9, 17, 26 & Exs.; corrected Fig. 2, Dkt. 35.
(18) Bond, 564 U.S. at 220-23; Lujan, 504 U.S. at 561-78; Super Tire, 416 U.S. at 121-26; Dkts. 28, 29, 35.
(19) U.S. Const. amend. XIV, § 3.
(20) Cong. Globe, 39th Cong., 1st Sess. 2898-2902 (1866), reproduced at Dkt. 28-1, Ex. A.
(21) Id. See exchanges among Senators Fessenden, Trumbull, Doolittle, Johnson, Van Winkle, and Howard concerning disability, punishment, officeholding, and congressional removal of disability.
(22) Id.; Dkt. 28.
(23) Trump v. Thompson, 573 F. Supp. 3d 1, 18 (D.D.C. 2021) (Chutkan, J.) (”Presidents are not kings, and Plaintiff is not President.”).
(24) Compl. ¶¶ 23-30, 44-58; Dkt. 16 at 8-10.
(25) Compl. ¶¶ 23-30, 44-58; Dkts. 9, 17, 26 & Exs.; judicial records identified therein concerning January 6 offenses, including seditious-conspiracy convictions.
(26) Compl. ¶¶ 23-30 and incorporated materials. Plaintiff relies at Rule 12 upon the allegations and reasonable inferences; proof of disputed participation remains for later proceedings if necessary.
(27) Compl.; Dkts. 9, 17, 26 & Exs.; Dkts. 28-29 and accompanying exhibits.
(28) Trump v. Anderson, 601 U.S. 100, 109-15 (2024).
(29) Id.; U.S. Const. amend. XIV, §§ 3, 5; Dkts. 16, 28.
(30) U.S. Const. amend. I.
(31) 1 William Blackstone, Commentaries on the Laws of England *143-*144; Borough of Duryea v. Guarnieri, 564 U.S. 379, 387-88 (2011).
(32) Dkt. 29 at 6-11.
(33) Bond v. United States, 564 U.S. 211, 220-23 (2011).
(34) U.S. Const. art. III, § 2.
(35) Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803).
(36) Compl. ¶¶ 23-30, 44-58; Compl. ¶ 55; Dkts. 16, 28, 29.
(37) Act of June 14, 1934, ch. 512, 48 Stat. 955; 78 Cong. Rec. 8224 (1934), reproduced at Dkt. 29-2.
(38) 78 Cong. Rec. 8224 (1934), Dkt. 29-2.
(39) Id.; 28 U.S.C. § 2201.
(40) Super Tire Eng’g Co. v. McCorkle, 416 U.S. 115, 121-26 (1974).
(41) Nixon v. Fitzgerald, 457 U.S. 731, 749-56 (1982).
(42) Randolph D. Moss, Assistant Attorney General, Office of Legal Counsel, A Sitting President’s Amenability to Indictment and Criminal Prosecution, 24 Op. O.L.C. 222 (2000).
(43) Clinton v. Jones, 520 U.S. 681, 702-06 (1997).
(44) Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992).
(45) Id. at 561-62.
(46) Id. at 572.
(47) Id. at 572-73.
(48) Id. at 572 n.7.
(49) Id.
(50) Id.
(51) Id. at 573 n.8. Plaintiff does not equate the Petition right here with the statutory procedural right discussed in Lujan; the relevance is Lujan’s posture-sensitive method.
(52) See generally id. at 561-78.
(53) Id. at 576-78.
(54) Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 125-28 (2014).
(55) Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 93-102 (1998).
(56) Compl.; Dkts. 9, 17, 26 & Exs.; Dkts. 28-29 and accompanying exhibits; corrected Fig. 2, Dkt. 35.
(57) Steel Co., 523 U.S. at 89-90.
(58) Id. at 89 (quoting Bell v. Hood, 327 U.S. 678, 685 (1946)).
(59) Bolivarian Republic of Venezuela v. Helmerich & Payne Int’l Drilling Co., 581 U.S. 170, 178-79 (2017) (where resolving jurisdiction requires the Court to “inevitably decide” overlapping merits questions, “so be it”).
(60) Brownback v. King, 592 U.S. 209, 217 & n.8 (2021).
(61) Dkts. 19, 23.
(62) Plaintiff’s filed materials concerning Trump v. Internal Revenue Service, including Judge Kathleen M. Williams’s order and accompanying materials concerning Executive representations, the Anti-Weaponization Fund, Release Order, litigation and settlement authority, and statements or testimony attributed to Deputy Attorney General Todd Blanche. These materials are relied upon for the distinction between Executive characterization and independent judicial determination, not for the proposition that a court may adjudicate independent merits questions after determining Article III jurisdiction is absent.
(63) Bond, 564 U.S. at 220-23.
(64) Compl. ¶¶ 23-30, 44-58; Dkts. 9, 17, 26 & Exs.; corrected Fig. 2.
(65) Dkt. 26-2; see United States v. Ammidown, 497 F.2d 615 (D.C. Cir. 1973). The Rhodes order discusses the Judiciary’s “role in dismissals following indictment,” rejects a “mere conclusory statement,” and invokes judicial responsibility for “guarding against abuse of prosecutorial discretion.”
(66) Dkt. 26-1. The Executive Order announces an Executive construction of the Fourteenth Amendment and directs that “no executive department or agency shall” act inconsistently with it.
(67) Plaintiff’s filed materials concerning Trump v. Internal Revenue Service, including Judge Williams’s order and accompanying materials concerning the Anti-Weaponization Fund, Release Order, Executive litigation position, and Deputy Attorney General Todd Blanche.
(68) Dkt. 16 at 14-20. If the Motion is denied, genuinely disputed factual questions may be tested under the constructions selected here, with governing doctrine applied as necessary against that legal framework.