When going into the comment section of our recent posts about LTC Lakin, put on your hip waders; the guano’s pretty deep (“suggested Lakin CM ‘Pearl Harbor Court of Inquiry’ defense”?).

I find the subject of President Obama’s eligibility to serve as President to be interesting.  But it’s clearly resolved by Superme Court precedent.  President Obama was born in Hawaii subject to the jurisdiction of the United States (in other words, his parents didn’t have diplomatic immunity).  He is, accordingly, a natural born U.S. citizen.  See, e.g., United States v. Wong Kim Ark, 169 U.S. 649 (1898); Luria v. United States. 231 U.S. 9, 22 (1913); Elk v. Wilkins, 112 U.S. 94 (1884).

But while I find the eligibility debate interesting, it is also profoundly irrelevant to the prosecution of LTC Lakin.  LTC Lakin is guilty of missing movement and violating lawful orders regardless of whether the President is or isn’t constitutionally eligible to serve.  There is no real prospect that his court-martial will result in the production of any documents or testimony concerning the irrelevant issue of President Obama’s constitutional eligibility to serve as President.  Instead, the case is likely to be a circus leading to an inevitable conviction.  Attempts to press the issue on direct appeal will fail because ACCA will hold that discovery into eligibility issues isn’t relevant and CAAF will either agree or, more likely, simply deny review, thus foreclosing a cert petition on direct review.  Collateral review attempts will fail under abstention (if filed before the completion of direct appeals) or because the issue was fully and fairly resolved by the military (if filed after completion of direct appeals).  Some courts on collateral review may add that they agree with the military courts’ determination that President Obama’s eligibility was irrelevant.

17 Responses to “The return of guano crazy”

  1. John O'Connor says:

    The CA should dismiss the charges as an act of clemency — clemency toward me and others who would be spared reading birther comments on this blog.

    Yes, I know I could avert my eyes, but it’s like passing a car wreck. I’d rather there was no car wreck too.

  2. Rattle says:

    how did this dude get a commission?.
    This man cannot even articulate a point.
    This guy needs his meds and frankly his attorney needs his meds as well.

  3. Anonymous says:

    I have no sympathy. Enlisted Soldiers get C-M for much more legitimate reasons for missing deployments. This guy clearly does not want his retirement or his career, so I am going to be just fine with the inevitable throwing away of both.

    I won’t per se enjoy it, but I will enjoy the birthers who will once again have reality thrown in their face.

  4. Brendon says:

    In light of the absolute train wreck that was Lakin’s counsel’s appearance on CNN, I have to wonder if there is any way we can file our own motion to have the proceedings televised. Failing that, can we take up a collection to dispatch someone to live-blog the trial? Hell, I’ll volunteer for the job…

  5. Anonymous says:

    Have you not watched Scrubs? Lakin is “Birther-Five.”

  6. Phil Cave says:

    I’m clearing my calendar to do a Sullivan. Meet for coffee before or after anyone?

  7. Michael says:

    My only concern: Will the detailed military counsel be permitted to wear a paper bag over his/her head during trial? If I was detailed to this, I’d go ahead and file a Motion in Limine right now…..

  8. Rob M says:

    The irritating (sad?) thing is that most of the denizens of the internet who wander onto this blog don’t actually read COL Sullivan’s excellent analyses (which he’s posted, by my count, at least three times) of why the issue of the birth certificate is a) irrelevant to the court martial and b) clearly resolved by the law. They copy and paste from their various homepages and get infuriated when rebutted with arguments that are based in actual law, not some contorted interpretation of the Constitution written by someone who’s taken a few political science classes. This blog isn’t a right-wing (or left-wing) echo chamber where the zealots preach to each other; for some reason that seems to catch people off guard. [We saw the same thing when people couldn’t understand why everyone here wasn’t clamoring for the immediate release of the Navy SEALs who were unjustly being prosecuted/persecuted by the unreliable military justice system because one of the “world’s worst terrorists” was hurt in captivity].

    I hope the detailed military counsel is good; this guy needs a good lawyer who will actually make valid legal arguments. Even given the hopelessness of their cause, birther servicemembers seem to have a (predictably) poor track record in their selection of civilian attorneys, who don’t actually argue the relevant law.

  9. Anonymous says:

    Other than mental illness, there are no valid legal arguments, so I’m afraid the detailed military counsel is going to be left twiddling his thumbs.

    That is an interesting side question. Clearly the arguments being put forward have zero basis in law or fact. To what extent can the detailed military counsel say, hey, I’m not putting before the court a clearly incorrect legal argument and more or less be a potted plant?

    He can certainly give advice and guidance on how C-Ms work and whatnot, he can probably help with voir dire, but everything else is just a sham and he has a duty to the court too.

  10. Phil Cave says:

    Army professional responsibility Rule 5.2 addresses the responsibilities of a Subordinate Lawyer. When civilian counsel is retained he/she usually becomes lead counsel with the military counsel becoming a “subordinate lawyer.”

    AR 27-26, Rules of Professional Conduct for Lawyers
    http://www.army.mil/usapa/epubs/pdf/r27_26.pdf

  11. Southern Defense Counsel says:

    For Detailed DC’s sake I hope that s/he has fully papered this file with CYA letters.

  12. Anonymous says:

    Emphasis on the word usually, this is one case where the military counsel should be the lead counsel.

  13. Anonymous says:

    Shouldn’t be too hard, just print out about 20 sheets of paper with the words “didn’t agree with lead counsel’s clearly frivolous/crazy advice” with room left to fill in the date.

  14. Rob M says:

    Yeah, I’d agree…there’s no substantive law here (as has been pointed out many times on CAAFLOG, with, as COL Sullivan has pointed out, some bizzare reactions). I suppose detailed counsel’s primary role would be procedural; like he’s supposed to do he’ll ensure that the government plays by the rules- this guy deserves due process as much as anyone ever did. But above all else, he deserves a competent advocate, not someone who’s more concerned about the cause than the case.

  15. Phil Cave says:

    Agreed, but it’s the client’s choice. And that’s usually why the client spends the money.

  16. soonergrunt says:

    Perhaps it’s time to create a new category for the Lakin case and subsidiary postings. That way, “court martial news” could serve to cover the courts martial of interest to the blog, and “guano crazy” or similar could cover stuff like this. You could even cross-reference them, or make “guano crazy” a subcategory, just for blogkeeping purposes.

  17. Anonymous says:

    Too bad the MJ can’t refuse to accept the credentials of these civilian DC. I think there is an articulable reason to do so.

    And, to throw something else out there – what of about the fact that military courts are Article I courts? Will the birthers refuse to recognize the jurisdiction of the court-martial based upon the invalidity of the convening authority’s referral of charges? If not, doesn’t that, in and of itself, undermine their “illegal deployment order” argument?

    Now that would be cool…