There’s an interesting discussion of the Lakin case going on over at Phil Cave’s Court Martial Trial Practice blog.  Phil “My Liege” Cave attended Friday’s Lakin arraignment and provides an informative synopsis.  But needless to say, I respectfully dissent from My Liege’s assertion that LTC Lakin’s defense team is “entitled” through the military discovery process “to get what he asked for — proof that the president was born in the United States.”  As I’ve written before, whether President Obama is constitutionally eligible to serve has no bearing on whether LTC Lakin is guilty or innocent of the charges against him.  See, e.g., here.  While I believe that LTC Lakin’s birther motive is relevant for sentencing purposes, the accuracy of his birther suspicions is not.  If I were a trial counsel (and I have been a trial counsel), I’d tell the defense to pound sand with zero fear that I’d be reversed on appeal.  But I’d be interested in hearing the views of JO’C, who preaches the Gospel of record protection, on that question.

Also, Doctor Conspiracy — who has honored us by posting some comments on this site — offers some thoughts about CNN’s coverage of the Lakin case here.  (Doc Conspiracy has performed a huge service to the public by following the birthers’ arguments and systematically debunking those that are susceptible to fact-based scrutiny.)

70 Responses to “Lakin discussion”

  1. Dew_Process says:

    The defense’s best argument on relevance is to parse language from the recent CAAF decision in the LCDR Diaz case regarding “motive” evidence. That being said, how that could possible be a defense to a “missing movement” charge, remains the question.

    The analogy that works for the government is classified information. The government obviously has access to it, and maybe even the TC has seen it, but if they opt not to use it at trial, the burden is on the defense – not in a fishing expedition – but to demonstrate that the “withheld” document(s) are material to the defense. There, the COLB is probably at best, all that they are entitled to.

  2. BigGuy says:

    Dwight, I got a question for you.

    Lakin’s handlers are making a stink over a claim that Lakin is under a “gag order,” unable to speak to the press.

    I don’t know that that claim’s been confirmed. But, in general, how common is it for military defendants to be ordered not to speak to the press?

  3. Dwight Sullivan says:

    Big Guy,

    Any such order would be uncommon on the extreme. But as you suggest, I’d want to see some evidendce of such an order and what it actually said before attempting to analyze it.

  4. Phil Cave says:

    My Liege, you are always welcome to take a different position from my “the trial counsels first obligation is to protect the record.” Is that going overboard in this case by sending a subpoena for the COLB, maybe so. But I’ll stand by that position for the moment.
    I also wouldn’t be surprised if the prosecution, quite legitimately, says pound sand, and either Judge Lind or CJ Henley deny a defense request for discovery.
    But, you do say that the issue might be relevant for sentencing? So, why is the “accuracy” of his suspicious thoughts and beliefs not subject to discovery? I highly doubt he’s going to get anything to support his claims. But what if he did? Doesn’t discovery arguably extend to sentencing matters – or did I just make a leap too far?

  5. Dew_Process says:

    It’s uncommon but “regulated.” AR 360-1, para. 5-13, permits “unofficial” discussions with the media, so this could have been interpreted as telling him “not in uniform.” The “handlers” are seeking media coverage over what is perceived to be a First Amendment issue – had they talked to their uniformed co-counsel, they might have been referred to the AR noted above, and that would resolve the issue – but that wouldn’t generate any media interest.

    But, if the Order to deploy is illegal per se, then why wouldn’t a gag order be illegal as well?

  6. Dwight Sullivan says:

    My Liege,

    I think it’s relevant for sentencing purposes the LTC Lakin committed his offenses because he doubted President Obama’s constitutional eligibility and he wanted to test the point. If he wants to present such evidence during the defense sentencing case, he will surely be allowed to do so. I could foresee a lot of members actually treating that as an aggravating circumstance rather than a mitigating one, but he can present such evidence if he chooses to.

    But just because it’s relevant that he committed the offense because he believed a certain point doesn’t make it relevant to determine that his belief was accurate.

    He has a right to discovery for sentencing purposes, but not a right to obtain discovery concerning irrelevant points. Consider if the law were otherwise. We are all familiar with cases in which a servicemember assaulted or killed another servicemember because they believed the other servicemember was gay. That motive for the offense is relevant. Should that then open the door for discovery to determine whether the victim really was gay? I could come up with other hypotheticals, but the central point is that the relevance of a motive isn’t sufficient to demonstrate the relevance of the truth of the motive.

  7. Brian le chien says:

    Not that the mouse’s voice can be heard when the elephants are arguing, but I got to go with Mr. Sullivan on this one.

    There is no logical relevance to the crimes charged, and the evidence sought. If I were to accept Mr. Cave’s reasoning on motive, then any motive will do. (e.g. I refuse to obey orders because the war is all a CIA plot, and the CIA killed JFK, and the “truth matters.”). If the birth records are relevant to this case, what would not be relevant (given the proper voiced motive).

    Systemically, there is a HUGE issue with trying to coddel this behavior. The Government cannot, and should not, produce records for which there is no relevance. I, for one, could not sign my name to the subpoena for the COLB or other records, as I have no basis to do so.

    Additionally, because this has the potential to be a watershed case (were LTC Lakin to win), it is important that it be fought at every step. I for one, WANT appellate review. I WANT case law dismissing his claims and tactics.

    The LTC Lakin case is not about whether one doctor should, or should not go to OEF. (Were it so, there wouldn’t be the discussions we are having). In the grand scheme, the Army didn’t skip a beat when he failed to deploy. Rather, this is a case about principles. (principles such as civillian control over the military, obeying orders, and the military be apolitical). And in such cases, you MUST fight over the principles.

    While usually the TC should protect the record, in some instances, the TC should take the aggressive approach, fight the defense, and hope the appellate courts back him up. This is the case here.

  8. Anonymous says:

    I’m with the dog on this one. TC should take the tact that the COLB/BC is completely irrelevant to the charges and deny as a matter of course. If TC is wrong, God help us all, because that will mean that an appeals court thinks it is ok to question orders based upon a subjective view of the legitimacy of the president. We will have a military not subject to civilian control, but a military that can, and will, question that civilian authority at every chance they get.

  9. RY says:

    At first thought, it seems any evidence which would tend to support or refute Lakin’s motive is relevant. I mean, if his motive is relevant than proof his motive is legit would also be logically relevant, right? Further, if we suddenly learned there was indeed a problem with Obama’s BC, even though not a defense to his charges, wouldn’t that change our perspective of Lakin and make him far less of a nutjob than we think right now?

    The problem is that such info is not legally relevant, i.e., motive is not a fact that needs to be proven. It’s relevant in mitigation, but not to a fact at issue. Let’s say, for example, if he chose a different topic for martyrdom – i.e., someone needed to stand up and force the government to finally come clean about Roswell – it’s relevant to his thought process for disobeying orders but surely he would not be entitled to whatever records he believed would prove his point when it is not a fact in issue to the charge.

  10. Greg says:

    But, you do say that the issue might be relevant for sentencing? So, why is the “accuracy” of his suspicious thoughts and beliefs not subject to discovery? I highly doubt he’s going to get anything to support his claims. But what if he did? Doesn’t discovery arguably extend to sentencing matters – or did I just make a leap too far?

    I do think you made a leap too far. (For what it’s worth, I have no legal training).

    The only evidence that Lakin should be able to introduce for the sentencing phase is whatever evidence he already has. Because that set of evidence is the one that informed Lakin’s decision to disobey orders in the first place. Since the evidence Lakin gathered (World Net Daily articles, Birther message boards and God-only-knows-what-else) back in March was persuasive enough to induce him to disobey orders, then surely presenting that same evidence to a military judge or jury would be sufficient to show the righteousness of his actions.

    Furthermore, I believe that it would be an abuse of the process to let Lakin go on a fishing expedition in the hopes of finding something so that he can say to the court, “See, I knew that I was right all along. You all owe me a pretty big apology.” We should not overlook the fact that Lakin and his civilian lawyer want to put the President’s eligibility on trial. But the President is not on trial. The Court has no jurisdiction over questions of the President’s ability, nor may the court evaluate any evidence regarding Obama’s eligibility to serve.

    Personally, I do not think that the Army should evaluate Lakin’s (or any other soldier’s) motive to disobey orders or to miss a movement. First, whether a soldier misses a movement in order to care for a dying mother or, alternately, to play a round of golf – in either case, the harm to the Army is the same. Second, if motive matters, then soldiers are more likely to disobey orders because they might think that they have a “good enough” reason to do so. But in order to maintain good discipline, the Army should make it clear that no excuse for disobeying a lawful order is better than any other. All such excuses are all equally invalid – and should be punished consistently.

  11. Dwight Sullivan says:

    Greg,

    An accused in any court-martial case has a presidentially prescribed regulatory right to present “matters in extenuation,” which is defined as matters that “serve to explain the circumstances surrounding the commission of an offense, including the reasons for committing the offense which do not constitute a legal justification or excuse.” R.C.M. 1001(c)(2). LTC Lakin’s birther motives fit comfortably within that provision. So he certainly would be allowed to present information to the members concerning why he did what he did (or, more accurately, why he didn’t do what he didn’t do). But just because he gets to present his motives doesn’t mean he’s entitled to discovery to explore the bona fides of his motive which doesn’t “constitute a legal justification or excuse.”

    Has anyone gotten a look at the convening order in the case? Will he be tried by a panel of bird colonels? I don’t see any chance that a members panel will be swayed by hearing his motives — unless the panel is swayed to increase his sentence upon hearing why he deliberately decided to violate the UCMJ.

  12. Greg says:

    Thank you, Dwight, for your clear and helpful explanation.

    With regards to this particular case: I’m still skeptical that Lakin’s defense could prove that any extenuating circumstances existed. By my understanding, “extenuating circumstances” refer to facts that lessen either: a) the gravity of the offense or b) the culpability of the defendant. It’s quite a stretch for me to imagine how Obama’s purported ineligibility for the Presidency could ever be considered a mitigating factor when it comes to determining Lakin’s sentence.

    Moreover, I came across this paragraph in the Manual for Court-Martials (just a few paragraphs after the one you cited):

    (3) Rules of evidence relaxed. The military judge may, with respect to matters in extenuation or mitigation or both, relax the rules of evidence.

    Now, as I understand this paragraph the judge may – but need not – relax the rules of evidence and thereby allow evidence (during sentencing) that would not have been admissible earlier in the trial.

    Since there seems to be broad consensus on this board that Obama’s birth records are irrelevant (and therefore inadmissible) in order to determine Lakin’s guilt, then I see no reason why the Judge in this case would decide that the birth records should be admissible during sentencing. For one, Obama’s COLB would do nothing to mitigate either the gravity of the offense or Lakin’s culpability for committing it.

  13. yguy says:

    Systemically, there is a HUGE issue with trying to coddel this behavior. The Government cannot, and should not, produce records for which there is no relevance.

    What is so ominous about the possibility of evidence of a CiC’s eligibility being made public, seeing it would leave without excuse everyone like Lakin?

  14. Anonymous says:

    A. those folks are already without excuse just like Lakin. EVEN if he were right, it doesn’t provide a legal defense for him to fail to deploy. EVEN if Obama said tomorrow, you know what, you guys got me, I was born in Kenya and resigned, it STILL would not provide a defense for Lakin’s failure to follow orders.

    B. The “ominous” part about producing records or evidence to support someones motives for committing a crime was laid out above. If someone says I hit him because he was gay, the fact that he hit him because he was gay could be used by the defense as a mitigating factor (not likely to be effective but could be used as such). That does not mean you get to investigate to see whether the person is gay.

    If someone goes AWOL because he believes the was in Iraq or Afghanistan is illegal, he can present that argument but he doesn’t get discovery on why he thinks the war is illegal.

    Your CT brain thinks this is about keeping the President’s eligibility a secret. Everyone else knows it has nothing to do with that. It has to do with not establishing a bad precedent on the production of irrelevant records.

  15. Joey says:

    “What is so ominous about the possibility of evidence of a CiC’s eligibility being made public, seeing it would leave without excuse everyone like Lakin?”

    Its already been made public for over a year now and authenticated by the Director of Health for the state of Hawaii, the Registrar of Vital Statistics of the state of Hawaii, the Attorney General of Hawaii and the Governor of Hawaii.
    For example: “I, Dr. Chiyome Fukino, director of the Hawaii State Department of Health, have seen the original vital records maintained on file by the Hawaii State Department of Health verifying Barack Hussein Obama was born in Hawaii and is a natural-born American citizen. I have nothing further to add to this statement or my original statement issued in October 2008 over eight months ago.”—July 27, 2009

    “You know, during the campaign of 2008, I was actually in the mainland campaigning for Senator McCain. This issue kept coming up so much in the campaign, and again I think it’s one of those issues that is simply a distraction from the more critical issues that are facing the country. And so I had my health director, who is a physician by background, go personally view the birth certificate in the birth records of the Department of Health, and we issued a news release at that time saying that the president was, in fact, born at Kapi’olani Hospital in Honolulu, Hawaii. And that’s just a fact. And yet people continue to call up and e-mail and want to make it an issue. And I think it’s, again, a horrible distraction for the country by those people who continue this. … It’s been established. He was born here.”—Governor of Hawaii Linda Lingle (R)

    “If Tea Party groups are to maximize their influence on policy, they must now begin the difficult task of disassociating themselves from cranks and conspiracy nuts. This includes 9/11 deniers, ‘birthers’ who insist Barack Obama was not born in the U.S., and militia supporters espousing something vaguely close to armed rebellion.”
    Karl Rove, February 17, 2010, The Wall Street Journal Editorial Page

  16. Joey says:

    “I see no reason why the Judge in this case would decide that the birth records should be admissible during sentencing. For one, Obama’s COLB would do nothing to mitigate either the gravity of the offense or Lakin’s culpability for committing it.”

    I know this is going to drive you crazy but it might very well depend on what kind of a mood Denise Lind is in on that particular day or whether the prosecution or defense attorneys are pissing her off.
    It has nothing to do with the Military Judge being a female, it has everything to do with judges exercising discretion at their will.

  17. Dwight Sullivan says:

    Let me offer one more argument for the “pound sand” approach to discovery in this case. We know that the birthers are habitual goal post movers. Let’s hypothesize that the TC (or the MJ) provided discovery concerning President Obama’s birthplace under the theory, advanced by My Liege, that the defense team is “entitled” through the military discovery process “to get what he asked for — proof that the president was born in the United States.” Wouldn’t the Lakin-Jensen team then likely shift its argument on presidential eligibility to the birther standard that President Obama’s mother forfeited his citizenship when she took him to Indonesia and demand discovery regarding those birther theories under the now-established principle that the defense is “entitled” to discovery on presidential eligibility?

    If we let the birthers’ nose under the discovery tent, we’re likely to wake up with a complete camel in our tent doing that which camels do. Evidence of presidential eligibility is irrelevant. Period.

  18. yguy says:

    If someone goes AWOL because he believes the was in Iraq or Afghanistan is illegal, he can present that argument but he doesn’t get discovery on why he thinks the war is illegal.

    This scenario is far too vague to have any value. I’ve never heard of any US court declaring any war illegal, and I’m not even sure what it means in a constitutional context. I suppose if the President declared war that would be illegal, but that would pretty well make discovery moot anyway.

    Your CT brain thinks this is about keeping the President’s eligibility a secret. Everyone else knows it has nothing to do with that.

    No, they don’t. They could only know that if they know Obama is eligible, and only a handful of people are privy to that knowledge. Otherwise there wouldn’t be people telling me with a straight face that it doesn’t matter whether Obama is a usurper or not.

    It has to do with not establishing a bad precedent on the production of irrelevant records.

    If Lakin gets the documents he wants, what other records could be subject to discovery in future cases based on that precedent, seeing what he’s asking for has direct bearing on a crystal clear constitutional provision?

  19. Dwight Sullivan says:

    Anon 2302,

    Court-martial jurisdiction extends to “Retired members of a regular component of the armed forces who are entitled to pay.” Art. 2(a)(4), UCMJ, 10 U.S.C. 802(a)(4). So a retiree may be charged at a court-martial with any offense that covers those subject to the Code. (Some UCMJ offenses cover subsets of those subject to the Code and wouldn’t reach retirees.)

    That said, what I’ve seen thus far about Major General Curry’s remarks wouldn’t seem to violate any UCMJ provision. And I think there would be serious First Amendment problems if the military were to attempt to court-martial retirees due to their speech about political matters. In fact, I would hope such a First Amendment challenge would be successful. But we’ll never know because I can’t see the military ever attempting to punish a retiree for political speech — even highly contemptuous political speech.

  20. Dwight Sullivan says:

    yguy writes, “I’ve never heard of any US court declaring any war illegal.” Uhm, how would that compare with the number of U.S. courts that have declared a duly elected and inaugurated president ineligible to serve?

  21. yguy says:

    “What is so ominous about the possibility of evidence of a CiC’s eligibility being made public, seeing it would leave without excuse everyone like Lakin?”

    Its already been made public…

    Not the least bit responsive.

    And spare me the spurious quotes, if you don’t mind. I have as much command of the facts regarding the BC as anybody, and I”m plenty good at separating relevant facts from worthless minutiae like the Lingle quote which, strictly speaking, also happens to be baloney.

  22. Anonymous says:

    you know I’m pretty sure my cat understands English better than you but let’s try this again, whether or not the issue has a direct bearing on a constitutional provision has NOTHING TO DO WITH whether or not it is a relevant defense to failure to follow orders and deploy.

    The court LTC Lakin will be tried in is not a Constitutional Law court, it is a criminal court.

  23. Joey says:

    I’m not about to “spare” you anything.
    Just because a response doesn’t fit your preconceived notions doesn’t make it unresponsive.
    If Lakin should somehow win discovery or the right to depose the Director of the Hawaii Department of Health, he is likely to get confirmation of the Obama Certification of Live Birth which contains all the information necessary to establish natural born citizen status. The only other eligibility requirement is 14 years residence in the US.
    Lakin obviously needs an official confirmation that Obama was indeed born at 7:24pm on August 4, 1961, in the City of Honolulu, in the County of Honolulu, on the Island of Oahu, in the state of Hawaii.

  24. yguy says:

    yguy writes, “I’ve never heard of any US court declaring any war illegal.” Uhm, how would that compare with the number of U.S. courts that have declared a duly elected and inaugurated president ineligible to serve?

    Again, you assume your conclusion.

    As for comparison, I don’t see one within the bounds of reason. The constitutional criteria for eligibility are explicit, and eliminating the perception that Obama is ineligible by reason of birthplace would not, in a logistical sense, be arduous in the least. By contrast, I cannot conceive of a scenario wherein any discovery process could lead to a war being declared illegal.

  25. yguy says:

    Just because a response doesn’t fit your preconceived notions doesn’t make it unresponsive.

    To be sure. What makes it non-responsive is its utter irrelevancy to the question I asked.

  26. yguy says:

    you know I’m pretty sure my cat understands English better than you but let’s try this again, ….

    Let’s not.

    I said what I had to say about this some time ago. If you have hopes of changing my mind, tedious repetition is not the way to get there, trust me.

  27. Anonymous says:

    To quote Andy Defrain, are you being purposefully obtuse?

    The comparison would be the frequency.

  28. Anonymous says:

    Apparently, logic and common sense aren’t the way to get there either, so I agree with you that I’m out of ammo here.

  29. yguy says:

    To quote Andy Defrain, are you being purposefully obtuse?

    The comparison would be the frequency.

    Swell.

    No sitting President has ever been found to be ineligible for office.

    No US court has ever declared a war illegal.

    No physicist has ever crafted a Unified Field Theory that has proven correct in every detail.

    No one ever dropped a load in a paper bag and traded it for an aircraft carrier.

    If we all agree with the above, perhaps we can also agree that by itself, frequency as a basis for comparison isn’t much help.

  30. yguy says:

    As has been mentioned many times before the courts are specifically enjoined by the Constitution from examining the eligibility of the President.

    It may have been asserted many a time, but anyone who is at least minimally familiar with the Constitution knows it’s baloney.

  31. Joey says:

    It is likely that a federal judge would be “at least minimally familiar with the Constitution.” Here’s what one federal judge had to say in dismissing an Obama eligibility lawsuit:
    “There may very well be a legitimate role for the judiciary to interpret whether the natural born citizen requirement has been satisfied in the case of a presidential candidate who has not already won the election and taken office. However, on the day that President Obama took the presidential oath and was sworn in, he became President of the United States. Any removal of him from the presidency must be accomplished through the Constitution’s mechanisms for the removal of a President, either through impeachment or the succession process set forth in the Twenty-Fifth Amendment. Plaintiffs attempt to subvert this grant of power to Congress by convincing the Court that it should disregard the constitutional procedures in place for the removal of a sitting president. The process for removal of a sitting president–removal for any reason–is within the province of Congress, not the courts.”—US District Court Judge David O. Carter in dismissing “Captain Pamela Barnett, et. al. v Barack H. Obama, et. al.,” October 29, 2009

    Yes, I know, the federal judge’s opinion is spurious and irrelevant, just like Governor Lingle’s. But somehow I think a Governor’s sworn deposition and a legal brief’s reference to a federal judge’s written opinion will carry more weight than a “y-guy” opinion.

  32. Norbrook says:

    Which means that at the end, it wouldn’t matter if Lakin did receive the “proof” he wanted. He’d still be (probably) dismissed and in jail. The only thing gained would be the knowledge that he torched his career for being an idiot, and that he wasn’t a “martyr” after all.

  33. Dwight Sullivan says:

    yguy, you were the one who introduced the metric of successful court challenges (“This scenario is far too vague to have any value. I’ve never heard of any US court declaring any war illegal.”). That seems like a strange metric for a birther to advance.

  34. yguy says:

    Yes, I know, the federal judge’s opinion is spurious and irrelevant, just like Governor Lingle’s.

    As a response to my comment, it most certainly is. Carter’s main focus was on the question of removal, not eligibility. The only part that has bearing is his pronouncement that Obama is President. There is no consideration of the consequences of deeming conformance with the eligibility clause an option rather than a requirement for wielding legal the authority of the Presidency.

    Beyond that, in Nixon v. United States (91-740), 506 U.S. 224 (1993), Rehnquist opined that impeachments were not reviewable on the basis that impeachment and removal is the sole province of Congress; so the closest precedent I’m aware of leaves open the possibility of reviewing presidential eligibility, seeing no entity has exclusive authority to determine it.

  35. yguy says:

    yguy, you were the one who introduced the metric of successful court challenges (“This scenario is far too vague to have any value. I’ve never heard of any US court declaring any war illegal.”). That seems like a strange metric for a birther to advance.

    I wouldn’t call it advancing a metric. I just find the idea of a war being illegal so broad that it’s natural to look for a specific application, and in this case I don’t know where else to look but US case law.

  36. Anonymous says:

    Please tell yourself that then since that was the basis of your response as COL Sullivan notes above.

    It’s like there is no internal consistency to your logic or argument, just whatever fits into the I want the long form birth certificate argument of the moment.

  37. Anonymous says:

    which, again, even if you were right, and you aren’t, has nothing to do with defending LTC Lakin’s refusal to deploy.

  38. Reality Check says:

    I have two questions for yguy:

    1. Does he see the irony in the fact that the birth certificate that Lakin posted on safeguardmypaypalaccount.com is not his original birth certificate but instead is a COLB from Colorado issued in 1994? (You just can’t make up comedy like this folks. :) http://www.safeguardourconstitution.com./images/stories/documents/apf02-tlakincertificateoflivebirth.pdf )

    2. What judge does he expect will rule on President Obama’s eligibility when they have no jurisdiction, can offer no possible relief for any potential plaintiffs, and on what is a political question?

  39. yguy says:

    What judge does he expect will rule on President Obama’s eligibility when they have no jurisdiction, can offer no possible relief for any potential plaintiffs, and on what is a political question?

    The question is based entirely on false premises. The Judiciary has jurisdiction in all cases in law arising under the Constitution, which certainly would apply to a challenge to his eligibility under A2S1C5, and is perfectly capable of providing noninjunctive relief such as ordering that a certified copy of the original BC be made available for public inspection via the web.

  40. Anonymous says:

    Someone doesn’t understand the concept of standing, among many of the concepts you either don’t understand, or do understand and ignore.

  41. Reality Check says:

    I believe I had two questions.

    I considered your reply on the second. The courts are governed by Article III and that is why the birthers are 0 for 72.

  42. Reality Check says:

    I did not ask the question about Lakin’s COLB just to be flippant. It would appear to me that LTC Lakin is willing to sacrifice his career and go to jail because he thinks his 1994 Colorado COLB is more genuine than the Obama 2007 Hawaiian COLB. Surprisingly, many birthers base their beliefs on just such ignorance. Lakin appears to be one of them.

  43. yguy says:

    Someone doesn’t understand the concept of standing

    I’m aware of the accepted definition, but I challenge anyone to cite anything in the Constitution which limits federal court jurisdiction to cases in which the harm alleged is “concrete and particularized” in the popular sense of the term.

  44. yguy says:

    Once again “yguy” you are confusing the things a court is permitted to do in the case of a Presidential candidate & a sitting President.

    […]

    After 12:01 in Jan 20th impeachment & the disability provision of the Constitution are the only means of removing a sitting President.

    Some of you guys are like a dog with a bone. Who said anything about removal?

  45. yguy says:

    I believe I had two questions.

    Only one merited a response.

    The courts are governed by Article III and that is why the birthers are 0 for 72.

    You are more than welcome to show your work.

  46. BigGuy says:

    The current definition of standing, as you may well know, is that penned by Justice Scalia in Lujan v. Defenders of Wildlife.

    Maybe it will be overturned one day — certainly the liberal side of the political spectrum has always groused about it — but, at the moment, that is the law of the land.

    If you’re looking to challenge it, SCOTUS is the place to go. Maybe next time there’s a liberal majority you’ll get your wish.

  47. Bovril says:

    Poor Ole LieGuy, again with the epic Birfer Fail. Oh stop being “disingenuous” Y….you are a Birfer by your actions, comments and articulated beliefs.

    “Who said anything about removal”….well that would be you with the harping on…in multiple web sites, about the illegitimacy of the President. Try and retain at least have an iota of intellectual honesty, you adamantly believe he is illegally in the role, ergo you want him removed, QED.

    Now, whether you “agree” or not, standing is the law, whining about it and madly pointing in irrelevant directions doesn’t change it.

    Then there is the Constitution, Obama IS the President and there is bugger all you can do about. Now if you can somehow convince the necessary numbers of politicians to impeach him, more power to you….but guess what, not going to happen.

    Lets see what else….” I challenge anyone to cite anything in the Constitution which limits “….pathetic.

    Qu’elle suprise there is infintely more (the word is used deliberatley) that the Constitution either doesn’t directly or indirectly address that it does address. That’s why we have an enormous body of written law. Under your simple minded babble, the study of law would begin and end with memorizing the Constitution.

    Except of course you deny your own thesis with another…to whit (or half in this case…)

    ” and in this case I don’t know where else to look but US case law.”

    Now Yguy, there’s a good chap, you’ve kept the adults amused for a short time, but play times over.

  48. Reality Check says:

    yguy, I am not surprised that you would dodge the question on Lakin’s BC. It made him look like a complete fool to post exactly what has been posted for Obama and pretend it is something different.

    You can go can go read the decisions yourself. Case after case has been denied on Article III standing and justiciabilty issues. The courts are for real cases and controversies and not for birther temper tantrums.

  49. Anonymous says:

    The question is moot, only yguy will determine what questions merit a response and what questions don’t and he will thank you to remember that.

  50. Anonymous says:

    So I should put it into the do understand but ignore it pile then. The “accepted definition” goes back pretty far and it’s based on the requirement that there be a case or controversy which is in the Constitution.

    If you want “public interest standing,” move to Britain or Canada…or maybe Kenya.

  51. yguy says:

    It made him look like a complete fool

    That’s his lookout, and has no bearing on this case that I’m aware of.

    You can go can go read the decisions yourself. Case after case has been denied on Article III standing and justiciabilty issues.

    I’m not much for rummaging through haystacks for needles that probably aren’t there to begin with. If you have a case that presents reasoning supporting the idea that A3 somehow implies that being a US citizen does not confer standing on one seeking credible assurances that the sitting President is eligible to wield A2 authority, cite it and provide a spot quote. Otherwise I’ll just assume you don’t know what you’re talking about.

  52. BigGuy says:

    “Otherwise I’ll just assume you don’t know what you’re talking about.”
    ___

    Yes, just as you assume that the judges who wrote those opinions don’t know what they’re talking about.

    So what?

  53. Reality Check says:

    Thanks Anonymous I forgot yguy rule #2 for a minute there. It won’t happen again.

  54. Anonymous says:

    it must be tough being so much smarter than every legal mind for the last say 90 years who’s addressed the issue of standing.

    Only you see it for what it truly is, only you can discern the true meaning of standing. Amazing. I’m humbled.

  55. Reality Check says:

    A good place to start would be Judge Carter’s ruling granting the defense motion to dismiss in Barnett v Obama on page 5, “Discussion, A. Jurisdiction under Article III.”
    http://www.scribd.com/doc/21808122

    From the ruling:

    “Rule 12(b)(1) mandates that the Court dismiss claims for which it lacks subject matter jurisdiction. Standing is an element of subject matter jurisdiction.Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1140 (9th Cir. 2003). To establish standing under Article III of the Constitution, a plaintiff must demonstrate: “(1) an ‘injury in fact’ – an invasion of a legally
    protected interest which is (a) concrete and particularized,” meaning that the injury must “affect the plaintiff in a personal and individual way,” and (b) “‘actual or imminent,’ not ‘conjectural’ or ‘hypothetical;’” (2) “there must be a causal connection between the injury and the conduct complained of – the injury has to be ‘fairly . . . trace[able] to the challenged action of the defendant, and not . . . th[e] result [of] the independent action of some third party not before the court;’” (3) “it must be ‘likely,’ as opposed to merely ‘speculative,’ that the injury will be ‘redressed by a favorable decision.’
    ”Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S. Ct. 2130 (1992) (internal citations omitted). Each element of standing is “an indispensable part of the plaintiff’s case,” and accordingly “must be supported in the same way as any other matter on which the plaintiff bears the burden, i.e., with the manner and degree of evidence required at the successive stages of the litigation.”Id. at 561.”

    Can you provide a case that supports your theory that a that being a US citizen does confer standing on one seeking credible assurances that the sitting President is eligible to wield A2 authority?

  56. Anonymous says:

    come on Reality Check, don’t you understand that if it doesn’t explicitly say “standing means X” in the Constitution, then yguy rule #3 says that it must mean whatever it needs to mean to force “Nobama” to show his, no doubt fraudulent, birth certificate.

  57. Reality Check says:

    come on Reality Check, don’t you understand that if it doesn’t explicitly say “standing means X” in the Constitution, then yguy rule #3 says that it must mean whatever it needs to mean to force “Nobama” to show his, no doubt fraudulent, birth certificate.

    Damn, my “Guide to yguy’s Idiocy” was the old version. I will update it immediately.

  58. Joey says:

    Here’s a discussion of standing by a Ronald Reagan appointed and well known conservative, originalist chief federal judge dismissing a birther quo warranto claim

    UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

    ORLY TAITZ,Plaintiff, v. Civil Action 10-151 (RCL) BARACK HUSSEIN OBAMA, Defendant.

    MEMORANDUM OPINION

    Before the Court is the defendant’s motion to dismiss the first amended complaint and Christopher Strunk’s motion to intervene. Also pending before the Court is the plaintiff’s motion to consolidate this case with an action currently pending in the United States District Court for the Northern District of Florida. Upon consideration of the motion to dismiss, the applicable law, and the entire record herein the motion will be granted for the reasons set forth below. After consideration of the motion to intervene, the opposition, the applicable law, and the entire record herein the motion will be denied for the reasons set forth below. After consideration of the motion to consolidate, the opposition, and the applicable law, the motion shall be denied without prejudice as this Court lacks jurisdiction to hear it.

    I. The Government’s Motion to Dismiss
    A. Quo Warranto Claims

    Orly Taitz has filed suit seeking this Court to issue a writ of quo warranto against the President of the United States to determine his eligibility for office. See D.C. CODE § 16-3501. A writ of quo warranto is a “common-law writ used to inquire the authority by which a public office is held.” BLACK’S LAW DICTIONARY 1371 (9th ed. 2009). The District of Columbia Code has two statutes regarding the initiation of a quo warranto proceeding. The first provides that the Attorney General of the United States or the United States Attorney may institute such an action on their own motion or on the relation of a third person. D.C. CODE § 16-3502. If the Attorney General or U.S. Attorney does so on the relation of a third person, they must first seek leave of court. Id. The Code also provides that if the Attorney General or U.S. Attorney “refused to institute a quo warranto proceeding on the request of a person interested, the interested person may apply to the court by certified petition for leave to have the writ issued.” Id. § 16-3503. Ms. Taitz, having contacted the U.S. Attorney for the District of Columbia and the Attorney General of the United States, and not having received an answer to her satisfaction, has elected to seek the writ on her own. Shortly after she filed suit, the government moved to dismiss.

    This is one of several such suits filed by Ms. Taitz in her quixotic attempt to prove that President Obama is not a natural born citizen as required by Constitution. See U.S. CONST. art. II, § 1. This Court is not willing to go tilting at windmills with her.

    The Court of Appeals for this Circuit has held that a quo warranto action against a public official may be brought only by the Attorney General or the U.S. Attorney. Andrade v. Lauer, 729 F.2d 1475, 1498 (D.C. Cir. 1984) (Wright, J.) (citing United States v. Carmody, 148 F.2d 684, 685 (D.C. Cir. 1945)). The Court of Appeals reasoned that this must be the case because challenges to authority by which a public office is held “involve a right belonging to the whole body of the public which can be protected only by a public representative.” Carmody, 148 F.2d at 685.

    That holding of the Court of Appeals is rooted in the doctrine of standing. To bring a case in federal court a plaintiff must establish that he or she has standing to do so, which is essentially a question of whether “the litigant is entitled to have the court decide the merits of the dispute. . . .” Warth v. Seldin, 422 U.S. 490, 498 (1975). There are three elements that form the “irreducible constitutional minimum of standing.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (Scalia, J.). If any one of these three requirements is not met, a plaintiff does not have standing.

    The first of these is that the plaintiff must suffer an injury in fact. Id. That is an injury must be concrete and particularized and actual or imminent, rather than conjectural or hypothetical. Id. Injuries which are general, rather than particularized, are not sufficient to create standing. Indeed, the Supreme Court has “consistently held that a plaintiff raising only a generally available grievance about government—claiming only harm to his and every citizen’s interest in proper application of the Constitution and laws, and seeking relief that no more directly and tangibly benefits him than it does the public at large—does not state an Article III case or controversy.” Id. at 573-74. This is precisely the sort of injury that Ms. Taitz alleges and as such she does not have standing to pursue her claim. Because Ms. Taitz is neither the Attorney General of the United States nor the United States Attorney for the District of Columbia, she does not have standing to bring a quo warranto action challenging a public official’s right to hold office.’ Accordingly Ms. Taitz’s quo warranto claims are dismissed for lack of standing.2 See FED. R. Civ. P. 12(b)(1).—US Chief District Court Judge for the District of Columbia Royce C. Lamberth, April 14, 2010

  59. yguy says:

    A good place to start would be Judge Carter’s ruling granting the defense motion to dismiss in Barnett v Obama on page 5, “Discussion, A. Jurisdiction under Article III.”

    Not really. All he does is cite Lujan without explaining how any of it can be reasonably extrapolated from A3.

    Incidentally, Scalia cited Fairchild v Hughes in that ruling, but short-quoted Brandeis as saying:

    [This is] not a case within the meaning of . . . Article III. . . . Plaintiff has [asserted] only the right, possessed by every citizen, to require that the Government be administered according to law and that the public moneys be not wasted. Obviously this general right does not entitle a private citizen to institute in the federal courts a suit. . . .

    when he completed the last sentence as follows:

    …to secure by indirection a determination whether a statute, if passed, or a constitutional amendment about to be adopted will be valid.

  60. yguy says:

    it must be tough being so much smarter than every legal mind for the last say 90 years who’s addressed the issue of standing.

    Those people aren’t posting on the internet. I think I can be forgiven for not being generally impressed with those who are.

  61. BigGuy says:

    It matters not what you think of us, or for that matter what you think of the many judges who have come to conclusions very similar to ours.

    It is amusing, however, that you continue to spout your delightfully self-important conviction that your opinion should trump those that have been prevailing in the legal community for many decades.

  62. Reality Check says:

    In other words, see yguy Rule #3.

    I have to comment on this one:

    “Not really. All he does is cite Lujan without explaining how any of it can be reasonably extrapolated from A3.”

    Dude, Lujan is the law of the land until the Supreme Court changes it. Why would Judge Carter need to explain Lujan? Your statement was faceplant level stupid. Carter cited a directly applicable precedent on standing. That is what district level judges do.

  63. yguy says:

    “Not really. All he does is cite Lujan without explaining how any of it can be reasonably extrapolated from A3.”

    Dude, Lujan is the law of the land until the Supreme Court changes it.

    Excuse me. Where in the supremacy clause do you find any mention of court rulings?

    Why would Judge Carter need to explain Lujan?

    I don’t suppose he does, any more than Scalia needs to explain why he butchered that quote from Fairchild, since neither is here contending that the standing rule is an ineluctable consequence of A3.

  64. Anonymous says:

    problem is, no one posting on the internet is doing anything but pointing to law established and agreed upon nearly universally by attorneys and judges of all stripes liberal and conservative.

    Yet somehow, ALL of them from Scalia to us idiots here on CAAFLOG, have it wrong, but you, you understand what the Constitution REALLY says.

    It’s almost pathological.

  65. Anonymous says:

    The Constitution is not the law of the land.

    Now, the Constitution as interpreted by yguy on the other hand…

  66. Anonymous says:

    No worries, he’s making it up as he goes along anyways so everything changes randomly.

  67. Reality Check says:

    So do we have a yguy Rule #4? “Supreme Court rulings are not precedential when they might interfere with the court enforced production of documentation for a black president to the extent that any real American might want to demand.”

  68. Anonymous says:

    We shouldn’t continue ordering them maybe, it implies cogent thought.

  69. obsolete says:

    I know this also won’t satisfy the birthers, but images of President Obama’s passport have been posted by the White House in a YouTube Video:
    http://www.youtube.com/watch?v=GtUkeVHfj5w&feature=player_embedded#!

    Image grab:
    http://2.bp.blogspot.com/_3fMJQTTxINc/TGcx2cE_B7I/AAAAAAAAAEM/aB0nKB_GF_I/s1600/02+Aug.+14,+2010+18.58.jpg

    And yes, it is an AMERICAN passport! ;)

  70. Reality Check says:

    It also says he was born in Hawaii on August 4, 1961. Of course this won’t satisfy LTC Lakin. Sad, Lakin seems like a likable enough schmuck but rather obtuse.