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The Trump and the FED

The president could be heading towards a fitting end to a uniquely undistinguished tenure.

A Souvenir shop selling figurine dolls of President Donald Trump seen on April 10, 2018 in London.

A Souvenir shop selling figurine dolls of President Donald Trump seen on April 10, 2018 in London. (Photo: Amer Ghazzal/Barcroft Media via Getty Images)

Possession is eleven points in the law.

Colley Cibber, Woman’s Wit (1697)

There is an  elephant in the closet that in just two months will almost certainly appear and, herewith, an answer as to how it can be dealt with, together with a description of a possible procedural problem inherent in the solution.

As this is written, the trump’s  Republican minions who are not encumbered by convictions of any sort, have mostly refused to contradict the trump’s insistence that he has won the election, fearing such admissions would incur his wrath.  By their subservience, they have helped the trump take steps that make this the first transition from one administration to another that was deliberately made difficult by the outgoing administration. 

Pursuant to the Presidential Transition Act that was signed in 1963, the administrator of the General Services Administration  is supposed to take all the necessary steps to enable the new administration to smoothly transition into running the government. That includes signing the necessary documents to give the incoming administration access to government officials, office space, equipment,  and millions of dollars, all to help insure a smooth transition.  When the transition from the Bush to the Obama administration was made, for example,  at one in the morning on the day following the election, the Bush transition director notified the incoming Obama transition director that he had signed all the necessary documents to enable the Obama administration to begin its work.

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Unsurprisingly, that has not happened with the trump since he, at this writing, remains in the delusional state in which he has dwelt for the last four years. He proclaims himself the winner of the recent election, a proclamation that his subservient supporters do not dare contradict.  How that plays out, only time will tell.  Here, however, is a question that to the knowledge of the writer has not yet been addressed but is one that must be answered as we eagerly await the arrival of January 20th.  What happens if the trump continues to insist on January 20th that he is the president of the United States and refuses to leave the White House?  

The answer to that question will come, surprisingly, not from the United States Supreme Court or any other federal court.  It will come from the Superior Court of the District of Columbia in a Forcible Entry and Detainer (FED) action. If, on January 20, 2020, the trump has not moved from the White House, and refuses to do so, the United States can bring an FED action in the Superior Court for the District of Columbia.  The District of Columbia ordinance that governs FED actions provides that when a person “detains possession of real property . . .after his right to possession has ceased. . . the Superior Court of the District of Columbia, on complaint under oath. . . may issue a summons in English and Spanish to the party complained of to appear and show cause why judgment should not be given against him for the restitution of possession.” Following a trial the ordinance provides that if  “it appears that the plaintiff (the United States government in our example) is entitled to the possession of the premises, judgment and execution for the possession shall be awarded in his favor, with costs. . . .”

Although President Biden and his family are entitled to move into the White House immediately following his inauguration, the superior court must issue a writ of execution that is enforced by the U.S. Marshals Service and the trump must have a minimum of three weeks’ notice of the eviction date. As a result the trumps will be able to stay in the White House for three weeks before the writ of execution is enforced even though President Biden has been sworn into office.

A question to which this writer does not know the answer,  is whether, since the trump must be given three weeks’ notice of the eviction date, can the  FED action be started on December 30th so that the three week period would then end on January 20th?  That would be the most efficient way to deal with this since the U.S. Marshalls could empty the trump belongings out of the White House while the trump is attending the inauguration (or pouting in the Oval Office) and the White House would be ready to welcome the Bidens upon the conclusion of that event. The difficulty with that, however, is that on December 30th the summons could not assert that the trump had detained “possession of [the White House] without right or after his right to possession has ceased” since the trump’s right to live in the White House doesn’t come to an end until 12 noon on January 20. I leave the problem of finding an answer to that question to the United States attorney’s office. 

Irrespective of the answer to that question, all would agree that for the Superior Court for the District of Columbia to be the court that makes the final determination that the trump is no longer the president of the United States and, therefore, no longer entitled to live in the White House, would be a fitting end to a uniquely undistinguished tenure.

Christopher Brauchli

Christopher Brauchli

Christopher Brauchli is a columnist and lawyer known nationally for his work. He is a graduate of Harvard University and the University of Colorado School of Law where he served on the Board of Editors of the Rocky Mountain Law Review. He can be emailed at brauchli.56@post.harvard.edu. For political commentary see his web page at http://humanraceandothersports.com

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