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.