Lakin IO refuses defense requests to produce evidence concerning President Obama’s eligibility: “As far as I have found, [the Defense’s] position has no basis in law” (that’s IO-speak for “guano crazy”)
Thanks to valued commentator Glenn for calling our attention to this ruling that the Lakin Article 32 IO, LTC Driscoll, issued yesterday emphatically rejecting defense requests to produce documents and witnesses concerning President Obama’s constitutional eligibility. While the IO would have had no authority to compel the attendance of civilian witnesses who didn’t want to attend, the discussion accompanying R.C.M. 405(g) explains that an “investigating officer should initially determine whether a civilian witness is reasonably available without regard to whether the witness is willing to appear. . . . If the witness refuses to testify, the witness is not reasonably available.”
LTC Driscoll wrote:
The Government does not charge that the President gave an order directly to LTC Lakin. For the President’s credentials to have any bearing on the charges against LTC Lakin, the Defense proposition must be that military orders issued by superiors to juniors are all “invalidated” during the period the President improperly holds office. This proposition fails to account for the law of lawfulness of orders, which in essence requires that a facially proper order be obeyed so long as it does not require the commission of a criminal act. See, e.g., United States v. New, 55 M.J. 95, 107-108 (2001) (medic who doubted unlawfulness of order to deploy with United Nations uniform accoutrements unable to overcome presumption of lawfulness of superior’s orders to so deploy). Moreover, the Defense proposition fails to account for the de facto officer doctrine, a military variant of apparent authority. The Defense offers no legal support whatever for its position, which I find to be far from ‘axiomatic.’ As far as I have found, the proposition has no basis in law.
LTC Driscoll also observed that the defense “fails to assert a legal basis by which its request might be allowable under the law of political questions, whereby courts will refrain from inserting themselves in matters constitutionally relegated to coequal branches of Government.”
LTC Driscoll concluded:
In my view our constitutional jurisprudence allows Congress alone, and not a military judicial body, to put the President’s credentials on trial. For this reason and the reasons stated . . . above, it is my opinion the discovery items pertaining to the President’s credentials are not relevant to the proof of any element of the charges and specifications set forth in the charge sheet. Consequently, I will not examine the documents or witnesses pertinent to the President or his credentials to hold office.
LTC Driscoll’s ruling nonetheless virtually guarantees that next Friday’s Article 32 hearing will be a circus. Despite finding that the defense has made no showing of relevance as to the testimony of retired Major General Paul Vallely and Alan Keyes, LTC Driscoll ruled that “I will hear testimony from these witnesses.” (Major General Vallely engages in a guano crazy radio interview about the Lakin case here. I wonder how he would have responded when he was on active duty if one of his subordinates had refused to obey one of his orders by questioning the President’s constitutional eligibility to serve. Alan Keyes’ guano crazy analysis is available here.) LTC Driscoll also ruled that he would hear testimony from two other witnesses with “first-hand knowledge of facts relating to LTC Lakin’s actions,” Colonel William Rice and Colonel Dale Block. He noted that a third witness with such purported “first-hand knowledge,” Mr. Loren Friedman, will be on government travel to the West Coast next Friday. LTC Driscoll notified the parties that at the conclusion of evidence, he would consider any request to hold the proceeding open to allow for additional testimony.
If anyone has a copy of either the defense’s or government’s filings with the IO that preceded this ruling, please send us a copy at firstname.lastname@example.org.