Here’s the question I would most love to have answered about the Lakin case:  what advice did Paul Rolf Jensen give to LTC Lakin leading up to today’s ruling? 

I hear very good things about LTC Lakin’s detailed defense counsel, MAJ Kemkes.  While obviously I have no way of knowing for sure, we can very safely assume that he advised LTC Lakin that there is no way his request for discovery would be successful and that he should explore available avenues to protect himself from the consequences of his deliberate decision to disobey orders on a basis that the law will not recognize as a defense.

Given that we can be almost certain that MAJ Kemkes gave LTC Lakin that advice (the same advice that all of those of us who are judge advocates would no doubt have given LTC Lakin), what advice did Mr. Jensen give?  Mr. Jensen obviously recommended a course of action different than that proposed by MAJ Kemkes.  To what extent, if at all, will today’s events lead LTC Lakin to lose confidence in Mr. Jensen’s advice?

That depends on what Mr. Jensen’s advice was. It seems to me that there are three principal possibilities:

(1)  Mr. Jensen reasonably told LTC Lakin that there is virtually no prospect that the military judge would order discovery and an almost certainty that the military judge will find that the orders given to LTC Lakin were lawful and so instruct the members.  Mr. Jensen might have further advised LTC Lakin that the consequence of moving forward is likely a dismissal from the Army and the loss of any pension, with a real possibility of jail time as well.  He might have futher advised him that while only LTC Lakin can choose whether to face those consequences, if they are imposed, then that opens the avenues for appeals and collateral challenges to the likely denial of discovery.  If that’s the advice Mr. Jensen gave, then today’s events probably won’t cause LTC Lakin to lose any confidence in Mr. Jensen.  Now the only question is whether, as he draws closer to the noose, LTC Jensen might lose his resolve and attempt to cut a deal.

(2)  Mr. Jensen gave guano crazy advice to LTC Lakin that either the Army would back down out of fear of being compelled to produce the requested discovery or the military judge would likely order the requested discovery.  If that was the advice given, then presumably LTC Lakin lost a great deal of confidence in Mr. Jensen today and may now see MAJ Kemkes’ legal advice as being superior to that of Mr. Jensen.

(3)  Mr. Jensen said something along the lines that the question of whether the discovery will be ordered is an open question upon which reasonable minds might disagree.  Some military judges might order the discovery while some might not.  The appellate courts will have to ultimately resolve the issue.  If he’s unlucky enough to draw one of those military judges who believes that he’s not entitled to the discovery, then LTC Lakin will probably face appellate leave and/or confinement while that issue is hashed out on appeal.  While I believe that such advice would be almost as guano crazy as #2 above, today’s ruling wouldn’t necessarily lead LTC Lakin to see that such advice was incorrect.  On the other hand, obviously LTC Lakin is an intelligent man and Phil Cave’s eyewitness assessment of today’s ruling is that Judge Lind demolished Mr. Jensen’s legal arguments.  Might that lead LTC Lakin to conclude that MAJ Kemkes’ legal advice was more sound than that of Mr. Jensen?  Probably not.  I’m not trying to be flippant when I say that if LTC Lakin yielded to an objectively reasonable assessment of the situation, he wouldn’t have embarked on the particular path toward Leavenworth, Kansas on which he’s currently hiking.  LTC Lakin is acting under the dictionary definition of a delusion:  “an erroneous belief that is held in the face of evidence to the contrary.”  It seems doubtful that listening to Judge Lind’s ruling today would cause LTC Lakin to slap his forehead like in those old V-8 commercials and exclaim, “NOW I understand why the requested documents have no legal relevance to the charges against me.”

So, interestingly, probably the only real prospect for LTC Lakin now taking actions that are in his objective best interest (trying to cut a deal to limit the negative consequences of his previous actions) is if Mr. Jensen provided him with guano crazy assurances of success.  If Mr. Jensen provided any other advice, it seems likely that LTC Lakin will continue his hike on the Leavenworth trail.

102 Responses to “Some very preliminary thoughts on the Lakin ruling”

  1. Phil Cave says:

    Someone needs to convince me there is an incentive for the prosecution to deal. The prosecution will want to do an extra bit of work to really make sure all of dots and crosses are done. But in the long run this is a straightforward case.
    The military judge did comment to Mr. Jensen that the prosecution still needs to prove that the orders were given and that the officers who gave the orders themselves were properly authorized. But that’s fairly easy to do.

  2. Dwight Sullivan says:

    My Liege,

    If LTC Lakin were inclined to try to cut a deal, it’s probably worth something to the Army if he were to offer to go military-judge-alone and not tie up a bunch of colonels’ time for at least a couple of days.

  3. Mike "No Man" Navarre says:

    With all due respect to CAAFlog . . . I don’t see a snowball’s chance in hell that PRJ gives up a chance for a “jury” trial. And to be perfectly honest, given today’s ruling, I am conflicted regarding which forum I would advise my client to choose to avoid getting pummeled.

  4. Dwight Sullivan says:

    No Man, I don’t disagree that there’s almost no chance that Mr. Jensen will stop driving the car toward Leavenworth. My question is whether LTC Lakin will continue to be a willing passenger on the trip.

  5. Anonymous says:

    It seems clear to me Lakin is motivated by a desire to gain attention for his cause. Martyrdom serves his purpose. I wouldn’t be surprized if he insists on the maximum penalty. Lakin is driving the car; he began this long before the dog-bite guy came on board.

  6. Dwight Sullivan says:

    Anon 1936, it is interesting to wonder at what point Mr. Jensen came on the case. From his own web site, we know he was there when LTC Lakin made his I’ll-refuse-to-obey-orders-and-invite-my-own-court-martial video. We also know that he had made administrative requests before that point and it appears that birther lawyer John Hemenway was an early advisor of his. Does anyone know when Mr. Jensen commenced his involvement in the case?

  7. Brian le chien says:

    Today, unlike my normal snarky self, I feel a little sad for him. Phil’s description of him seems a little, well, puppy dogish. (Don’t get me wrong, when you publicly (and with advance notice) violate orders as a senior officer, and all but defame the President, you need to go away for years). I guess we will see how this plays out…

    Question: Given the 360 coverage on this blog, any bets as to whether CAAFLOG merits a mention during voir dire?

  8. Dwight Sullivan says:

    I’m about to go into radio silence for about 24 hours. Before I do, one final question — does anyone know whether LTC Lakin has a wife and/or kids? I don’t. I wonder whether he’s dragging any immediate family members down with him.

  9. Anonymous says:

    Dwight: My understanding is that Lakin wrote a letter to the White House shortly after the Inauguration, requesting the infamous paper. It only became a legal matter when the orders to Afghanistan came. So he was a birther before he was a mutinous dog and before Jensen showed up.

    If I am incorrect, I hope someone will correct me

    Anon 1936

  10. Mike "No Man" Navarre says:

    CAAFlog, fair enough. But I agree generally with your 3 pts and don’t think PRJ is that stupid to take what is likely behind door #2 for him–to wit a likely bar complaint and potential sanctions. Thus it is exceedingly unlikely that the guy who stomped on the accelerator as they approached the cliff will at the last second realize, gosh, that’s a long way down.

  11. John O'Connor says:

    I’m with the Cave Man. If I were the TC and the defense wanted to deal, my reaction would be that I’d already done the work so why would I deal. Granted, any deal proposal would have to be sent to the CA, but Lakin woukldn’t get any support from me for a deal under these circumstances.

  12. yguy says:

    LTC Lakin is acting under the dictionary definition of a delusion: “an erroneous belief that is held in the face of evidence to the contrary.”

    What erroneous belief would that be?

  13. Bill C says:

    There is another part to this equation. Anyone who knows this MJ knows that she is known for her harsh sentences. She is going to bury LTC Lakin. He will do better with a panel in all likelihood, as long as he doesn’t make too much of a circus out of the sentencing proceedings. His best bet may be to fire his CDC and then throw himself on the mercy of the panel.

  14. Greg says:

    I wonder whether [Lakin] is dragging any immediate family members down with him.

    There is no indication that Lakin has either a wife or kids. And if he did, I’m sure that his website would tout that fact relentlessly. As it stands, Lakin’s own father has told the press that the rest of his family are Obama supporters and do not support Lakin’s actions.

    Or look at it this way: statistically, what would be the chance that Lakin’s wife (if he had one) would also be a birther? And what is the likelihood that she would blithely stand by while her husband loses his freedom, his livelihood and his pension?

  15. Christopher Mathews says:

    That his claims about the President would, even if true, constitute a valid defense.

  16. KyAtty says:

    Lakin isn’t going to lose confidence in Jensen, because in the alternate universe he lives in, the judge ruled against him because she is an obot committed to destroying the Republic and imposing an islamofacistmarxist one world government dictatorship on America. He’s pinning his hopes on finding “patriots” who, like him, recognize the need to remove the usurper before its too late.

  17. Snuffy says:

    While we all find this entertaining, what I am most impressed with are the attempts by my collegues (the esteemed commentators on this blog) to provide cogent well developed answers to inane questions. (Not you Sooner G, your Q’s are always appropo– amusing? sure, but at least cogent). Guys- there is no logic to explain Lakin and his CDC. It is simply a blind, irrational belief -not based in reality- that drives them. Of course we cannot tear our eyes (metaphorically of course) from this- we know full well it is gonna be a big crash. Blammo!

  18. Arthur says:

    Any other questions, yguy?

  19. yguy says:

    That his claims about the President would, even if true, constitute a valid defense.

    This evokes a distinctly macabre sense of amusement, coming as it does from a guy who declared in front of God and everybody, presumably with a straight face, that the military can serve the purposes of the American people just as well under the command of a usurper as under the command of a legitimate President.

  20. RY says:

    I suspect there’s another possibility: closet birthers and jury nullification. The thing about birthers is that they seem to have an eternal optimism that sooner or later the truth will be revealed if they just stay committed. Surely, Lakin believes he’s not the only one who believes in this cause, rather he believes he’s the only one with courage. If a Lt Gen can support Lakin, surely there are others.

    How do they bring out the evidence for jury nullification? That’s where they need to be creative. Perhaps, Jensen follows the endless trail. In order for Lakin’s supervisors to have authority to order him to deploy, they must have lawfully received the authority from their supervisors, who need proper authority from their supervisors, and so on.

    For Jensen’s part, I imagine he thinks about a not guilty verdict as sending a message that people want POTUS to come clean. No more dog bite cases after that. This might all sound crazy, but it was crazy the moment he considered this course of action. Since then, he’s had his hand on a grenade and lost the pin.

  21. Charles Gittins says:

    I told LtCol Lakin that he was being badly advised when he called me to join his legal team. I gave him my (very) candid advice. I told him to seek opinions from other military justice experts if he was not willing to accept my advice. He is where he is for a reason. I am very sad for him. He has been deluded by a very incompetent attorney, who has done a disservice you our profession and military justice. If I was the detailed counsel, I would not go along to get along. Integrity must have some meaning. Just my $.02

  22. Christopher Mathews says:

    God reads this blog? Well, I suppose He gets around.

  23. Anonymous says:

    Other than your ability to find the word macabre in the dictionary, nothing about that post was particularly impressive.

  24. yguy says:

    Other than your ability to find the word macabre in the dictionary, nothing about that post was particularly impressive.

    So essentially, you agree with Matthews that the military will serve the American people well under the command of a usurper.

    Right?

  25. Greg says:

    So essentially, you agree with Matthews that the military will serve the American people well under the command of a usurper. Right?

    I think posing completely hypothetical questions is pointless – because there is no limit on how silly they can – and do – become.

  26. Christopher Mathews says:

    It’s remarkable how much that comment seems to rankle with you, but how little you’ve said substantively to refute it.

  27. soonergrunt says:

    So you’re saying that this is really the military justice equivalent of NASCAR?

  28. soonergrunt says:

    Guys, not for nothing because I know that Col. Sullivan asked the question about a wife and kids, but please don’t get too deep into the issue of Lakin’s spouse and children, if they exist. Suppose for the sake of this post, that they do. I think the question was more of a general informational one and not a request to hunt down information not already out there. You don’t want to get a creepy internet stalker vibe going, or a reputation for same, like some websites have (both right and left that I have seen).
    If LTC Lakin is married with children, he has chosen for some reason to keep them out of the public eye on this, and frankly that’s probably the best, wisest decision he’s made in a long time. His children didn’t ask for this circus in their lives. Presumably his wife did not either or she’d be on Youtube with him.
    I know that nobody here would make trouble for them, but the last thing you want is for somebody who would do so to say “I found this stuff at CAAFlog…”

  29. Christopher Mathews says:

    Excellent point.

  30. Anonymous says:

    Most military servicemembers follow lawful orders. If your boss tells you to do something, and the something is not against the law, you do it. We don’t get tied up in the person, we execute the mission.

  31. KyAtty says:

    You mean if, for example, someone like Schwarzenegger was selected by the electors to be President? Sure the military would, why not?

  32. Anonymous says:

    The term usurper would be completely misapplied to Schwarzenneger if he were duly elected and ratified by Congress. Ineligible, yes, but not a usurper, since he would have been, in this fictional scenario, lawfully installed. A usurper would be a Lt Col who backed by some fellow officers walked into the White House and seized power.

    By the way, 3 Senators, including the great Henry Clay, and 1 House member served while being less than the minimum required age. Were they usurpers? No, because Congress permitted them to be seated.

    This is all hypothetical anyway, because all Presidents so far have been eligible.

  33. John O'Connor says:

    This is where court-martial rules stick it to Lakin. No need for a unanimous verdict, so if your strategy is just to hang a jury and not actually get an acquittal, a court-martial is a bad forum.

    If I were the CA, I would detail a large panel.

  34. Anonymous Air Force Appellate Defense Lawyer says:

    I wonder what questions they ask the members in voir dire. Do you watch the Glenn Beck show? Do you like Sarah Palin? How much do you like her?

  35. Phil Cave says:

    You will remember that some number of posts back I have posited this as the “as yet undisclosed secret strategy” referred to in WND. Dwight carefully chided me on that. When Jensen several times, somewhat passionately, invoked the “40% don’t believe” number and asked how many of that 40% might be military, my sense was that besides politicizing and grandstanding for the audience, there is truly some belief held that there will be nullification.

  36. Ama Goste says:

    Considering that the judge gets to make the call on whether an order was lawful, that would be some pretty brash jury nullification.

  37. Christopher Mathews says:

    Anon 0741, I’m inclined to agree that yguy and others of his persuasion misuse the word “usurper,” but their definition appears to include an ineligible person who is nonetheless duly elected, certified by Congress, and sworn in as President.

    I agree they haven’t presented any compelling evidence that such a person actually exists, but that’s another matter.

  38. soonergrunt says:

    Clueless newbie question here:
    Can they even get nullification? I mean, once it’s established that the President’s eligibility has nothing to do with whether or not LTC Lakin obeyed the law, will the members even hear about that in the courtroom? I read somewhere that juries will do the strangest things, but what are the real chances of nullification with a members panel? I shouldn’t think it will be very high, given the whole vanity that military personnel hold ourselves to about being apolitical in our duties and sucking it up and driving on, as it were.

  39. Phil Cave says:

    Brash, yes. But based on what I saw that was the tenor of Jensen’s non-legal arguments. My visceral reaction is that with McInerney on board, other senior military (notably retired but still subject to Article 88, UCMJ) officers, that they are counting on a perfect storm of outrage against a “usurper” president. To me that seems the clearest explanation of what’s going on. Misguided yes, shameless, absolutely. But remember this is an unabashed effort to use LTC Lakin as a fund raising tool. What’s the betting that any left-over funds will be diverted to the 2012 election, if there are any funds, and there’s some legal way to do it? This would help explain why Lakin didn’t take the good advice from Charlie and others.

  40. Ama Goste says:

    Don’t know about kids, but Lakin mentioned a wife and family in one press release.

  41. Phil Cave says:

    SG,
    You are correct that military members’ panels do strange things, included acquit. Sometimes the best you can say is nullification.
    You cannot get an instruction nor can you argue nullification explicitly. Nullification arguments have to be pretty nuanced to get past the military judge.
    My vote is they won’t acquit as a matter of nullification. You will have a panel of officer who for whatever reason have decided to obey the orders of the president (casting this in Lakin’s terms) so they may be angry at Lakin for several reasons.

  42. Bill C says:

    Charlie: I agree. I am not sure what I would do if I were detailed counsel at this point, and I am sure his TDS counsel has had many a conversation with his superiors on this very issue. Do you put your concerns on the record? Due to the nature of our business I don’t know that he can withdraw. I would sit down with client and CDC, with a couple of witnesses, and tell him that he is on the fast track to jail. Period. I would tell him, as you have done, that IMHO he is being poorly advised and that he has no legal defense to the charge. I still think his only hope to avoid a long prison term and save his retirement is to tell a panel “look, I thought this was a valid defense, and I was a sold a bill of goods by CDC and these birther folks. Had I known then what I know now, I would have been on the first plane out. I would deploy tomorrow if given the opportunity. I am terribly sorry and embarrassed by my actions and the attention I have brought upon the Army and POTUS.” If he does that, and CDC is no longer involved, he stands a chance. If not, he doesn’t.
    But hey, what do I know?

  43. yguy says:

    It’s remarkable how much that comment seems to rankle with you, but how little you’ve said substantively to refute it.

    It doesn’t need to be refuted, it needs to be advertised.

    You need to write an article with a title along the lines of,”As an American citizen, I don’t care whether the US military is being run by a usurper or not”, so everyone who agrees with it can stand up and be counted.

  44. John Harwood says:

    Isn’t the legal advice of counsel to a client (even a potential client) covered by the attorney-client privilege?

  45. yguy says:

    Most military servicemembers follow lawful orders. If your boss tells you to do something, and the something is not against the law, you do it.

    The problem, of course, is that if you’re in the military, and the person acting as CiC isn’t eligible for the Presidency, he’s not your boss; and under the constitution you’re not only not required to obey someone who does not legally wield command authority, you’re not authorized to do so.

  46. Anonymous says:

    The US military is being run by the lawful general staff under the lawfut Sec Def and the lawful (and eligible and elected and certified) President. The same would be true even in the fictional circumstance of a President who failed to meet one or more of the eligibility criteria, but was elected and certified by Congress. The ones attempting to usurp legitimate authority are Lakin and his fellow travellers. By the way, beyond his “doubts” does Lakin have any evidence? Do you? I didn’t think so.

  47. yguy says:

    The term usurper would be completely misapplied to Schwarzenneger if he were duly elected and ratified by Congress.

    There is no way that can happen under the Constitution as presently amended.

    Ineligible, yes, but not a usurper,

    Yes, he’d be a usurper, even though he’d be doing it in broad daylight and with the consent of Congress, because he’d be assuming office in willful violation of the law.

    since he would have been, in this fictional scenario, lawfully installed.

    Ah, so A2S1C5 has become an option rather than a requirement. The question, then, is how anything else in the Constitution can be viewed otherwise.

    By the way, 3 Senators, including the great Henry Clay, and 1 House member served while being less than the minimum required age. Were they usurpers? No, because Congress permitted them to be seated.

    As noted above, consent of Congress is not sufficient to legitimize someone who would otherwise be a usurper. Beyond that, no one elected to Congress can usurp an entire branch of the US government.

  48. Horus says:

    yguy:
    That his orders to deploy were “Illegal”.

    It would not have constituted a crime had he followed orders, no crime would have been committed.

    You can ONLY disobey orders if it makes you commit a crime, just going to Afghanistan is NOT a Crime!

    The ONLY crime that was committed was Lakin’s refusal to follow LEGAL orders.

  49. Horus says:

    Cracks me up when people refer to Obama as a Usurper.

    He was freaking elected!
    We do NOT live in a Monarchy, that is the ONLY place where a charge of Usurpation is legit.
    We ELECT our leaders, the crown is not passed down to the next generation like in a Monarchy.

  50. Rickey says:

    So essentially, you agree with Matthews that the military will serve the American people well under the command of a usurper.Right?

    Of course, the military has never served the American people under the command of a usurper.

    That said, it is indisputable that the military has performed admirably for the past 19 months, and undoubtedly it will continue to do so.

  51. Horus says:

    We do NOT live in a Monarchy.
    Obama was ELECTED, he did not usurp ANYTHING!

  52. SueDB says:

    There is no indication that Lakin has either a wife or kids. And if he did, I’m sure that his website would tout that fact relentlessly. As it stands, Lakin’s own father has told the press that the rest of his family are Obama supporters and do not support Lakin’s actions.Or look at it this way: statistically, what would be the chance that Lakin’s wife (if he had one) would also be a birther? And what is the likelihood that she would blithely stand by while her husband loses his freedom, his livelihood and his pension?

    You mean risking her pension and lifetime benefits (medical insurance etc). If he was married, could his wife divorce him and claim/be awarded the monetary amount of her half of his retirement even though it is getting pissed away?

  53. SueDB says:

    Since President Obama is the lawfully/Constitutionally elected President by the Electoral College, this whole line of crap is just that – it has been nicely explained to you time after time. At this point, your bovine offal is over-ripe.

  54. Anonymous says:

    More like a demolition derby…

    with one car…

    and a wall.

  55. Anonymous says:

    And here I thought, I had a few bosses between me and the President, but thanks yguy, now I know I only have one boss.

    Guess I’ll stop doing all my work now.

    But please, continue sending my check to my bank account, just like LTC Lakin…sweet gig if you can get it.

  56. Horus says:

    He was not ordered to commit a crime.
    You cannot seem to get this fact thru your thick skull. Deploying as ordered would not have constituted a crime, by any definition.

    His orders to deploy to Afghanistan did not come from the President directly, it came from his command.

  57. Anonymous says:

    Yeah, I wondered about that too.

    Seems to me Mr. Gittens you are walking a thin line telling folks the tenor of the advice you gave a potential client although in fairness you didn’t give specifics.

  58. Horus says:

    Wiktionary: Verb

    to usurp (third-person singular simple present usurps, present participle usurping, simple past and past participle usurped)

    1. To seize power from another, usually by illegitimate means.
    2. To use and assume the coat of arms of another person.

    Nowhere does that term apply to what you claim.
    You’re too stupid to know better.

  59. Horus says:

    No, she is not entitled to his retirement until he is dead.

  60. Greg says:

    …and under the constitution you’re not only not required to obey someone who does not legally wield command authority, you’re not authorized to do so.

    Not so. In the U.S. military, superior officers derive their authority to issue orders to their subordinates from an act of Congress (a power granted to Congress in Article I, Section 8 of the U.S. Constitution). Therefore the authority of the officers who gave Lakin his deployment orders is not dependent on the President’s authority over the military as a whole.

  61. Anonymous says:

    I’m just curious if yguy can find in the Constitution, statute or court decisions anything that gives the military, or any military officer, authority to decide whether Congress has acted properly in certifying a President.

  62. Horus says:

    He is/was not under contract with Lakin, he can say whatever he wants.

    He NEVER was his Lawyer.

  63. SueDB says:

    Could it be phrased as a hypothetical while giving some details without disclosing exactly who was the client?

    Or is giving enough details to give the average person the ability to positively identify the potential client not ethical?

  64. SueDB says:

    When he is dead his retirement stops.

    No, she is not entitled to his retirement until he is dead.

    ??? – His retirement pay stops when he dies. She gets other monies, but not his pay.

    She can be entitled to be paid up to half of his potential retirement pay, if they divorce and she has spent (I think) it’s over 10 years with him (various states say different things -different formulas).

    Since he could be thrown out at 18 with no benefits, what could the wife take away? Doesn’t she get anything for sticking with this nut for 18 years? If she was married to him for his entire career, then could she sue his ass for 1/2 of the potential retirement check with a cap of about a half a mil as his potential retirement pay up to age 74 or so would be a million dollars.

    Lakin could very well forfeit a million dollars in pension benefits.

  65. Christopher Mathews says:

    So you don’t like the answer, but can’t show that it’s wrong. Not surprising.

    By the way, the article you suggest moves the goalposts considerably: the issue as posed and answered was whether the military can well serve the American people regardless of whether the President was born on one side of a political boundary or the other, not how anyone feels about it.

  66. Anonymous says:

    I don’t see how she could sue him for benefits that are no longer due to him. She might be able to sue his attorney and yguy for enticing him into throwing them away.

    Did you get that yguy???

  67. Greg says:

    From my understanding, attorney-client privilege applies only when the (potential) client is seeking legal advice from the (potential) attorney.

    Lakin, by all reports and appearances, has not sought out any competent legal advice – preferring instead to hire a lawyer whose advice is no doubt more in tune with what Lakin wants to hear – or with what Lakin wishes were true.

  68. SueDB says:

    So far it has cost Orly $20K and Mr. Appuzio dodged the sanctions bullet with some fancy legal mumbo-jumbo (grin). The attorneys may have from the view of some folks – sullied their reputations dealing with this ilk. The California Bar is taking its own sweet time with the complaints lodged against Orly, but I think they are dealing with several other crisis at the moment. Time is not on the Birthtard’s side.

    None of the Birfer Attorneys have impressed me as having all their oars in the water. Some say it comes with the clientele.

    Did I get enough ‘drive-bys’ this one?

  69. SueDB says:

    Take another tact – it was through Ltc Birfer’s willful misconduct that cost her payments for the rest of her life. Can she sue his ass for half a mil in potential benefits as he misbehaved with all malice and forethought (though not much actual thought obviously).

    I would imagine this to be an individual state case (???intentional tort???) and am not trying to “make a Federal case out of it”.

    As you can see I am not a lawyer, but am really trying. Yes, I know I am trying to you too…

  70. RY says:

    Interesting tidbit – the Army script reads: “However, if, on the whole evidence, you are satisfied beyond a reasonable doubt of the truth of each and every element, then you should find the accused guilty”. Members are told they “should” find the member guilty. Compare with the AF script which says they “must” find him guilty. I did research years ago and there was some case law on this. If I recall correctly, counsel can argue for it. The Army script doesn’t preclude it. The AF tries to hide it with more compulsory language in the script.

  71. Glenn says:

    Lakin brought them up himself on one of his radio performances. He said his wife was supportive of his decision.

  72. yguy says:

    In the U.S. military, superior officers derive their authority to issue orders to their subordinates from an act of Congress

    Issuing orders is one thing. Issuing orders that are relayed from a person not authorized to give orders is quite another, and no act of Congress can legitimize that.

  73. Phil Cave says:

    If he retires, and IF his spouse does not permit him to opt out of the SBP, and she survives him, then she will receive 55% up to her age of (I forget) and then a lesser amount after she reaches that age I forget. IF she has allowed him to opt out of SBP she does not have an entitlement to a portion of retired pay after he dies.
    Opting out usually means the person is going to find some other annuity type program for the surviving spouse. So . . .

  74. SueDB says:

    Not so. In the U.S. military, superior officers derive their authority to issue orders to their subordinates from an act of Congress (a power granted to Congress in Article I, Section 8 of the U.S. Constitution). Therefore the authority of the officers who gave Lakin his deployment orders is not dependent on the President’s authority over the military as a whole.

    Thank you. This pretty much sums up most of my feelings on the matter. The actual authority is the US Constitution. It can’t work any other way. Soldiers do not personally serve the President (insert GODWIN here). Soldiers serve the country and the US Constitution not the person. Remember the term “cult of personality”?

    When something happens to the President (the bullets Reagan took for instance) there has to be a legal bridge to cover the actions of those trying to fill his shoes in the emergency. The concept of serving the US Constitution and the country is an original concept from the beginning.

  75. yguy says:

    So you don’t like the answer, but can’t show that it’s wrong.

    There’s no need, as it’s self-refuting, to put it charitably. That’s why people aren’t lining up to agree with you.

    By the way, the article you suggest moves the goalposts considerably:

    Does it, now?

    the issue as posed and answered was whether the military can well serve the American people regardless of whether the President was born on one side of a political boundary or the other,

    It had nothing to do with where he was born. It had to do with whether he was legitimately in office.

    not how anyone feels about it.

    Then I can hardly wait to see you explain why, if the military under the command of a usurper would serve purposes of the American people just as well as under the command of a legitimate President, you as an American citizen would be anything but sanguine about such a circumstance.

  76. Joey says:

    Please somebody correct me if I’m wrong but didn’t Phil Cave’s eyewitness report mention that Lakin’s attorneys stipulated to Colonel Lind that his orders were legal?

  77. Christopher Mathews says:

    I am completely sanguine about the ability of the armed forces, regardless of who occupies the Oval Office.

    I’m curious, though, about your statement that the issue has “nothing to do about where” the President was born. Does that mean you agree that the birth certificate — long form or short — is irrelevant?

  78. ksf says:

    Hopefully Lakin’s MDC will not mention to Lakin’s CDC the concept of unlawful command influence. Jensen will want to voire dire the MJ, then ask her to recuse herself due to the “appearance” of UCI in that she denied the motion for discovery it appears that she is afraid of what the POTUS would do to her if she granted the motion. Ultimately, they can get each and every military judge recused until they find one who is willing to grant a motion to compel the birth records.

    What a circus that would be! Like I said, hopefully Jensen won’t know about this since he is a PI attorney.

  79. SueDB says:

    Sounds like 3 Card Monte.

  80. Anonymous says:

    wow, so let me get this straight, the order to deploy LTC Lakin was “relayed” from President Obama?

    So you really think there was a discussion where someone said, Mr. President, we need one more doc to deploy, and Obama replied, General…Get me Lakin!?

    Here’s a clue, the Constitution gives Congress power of the military. When I got promoted, when other folks here got promoted, as officers, Congress, not the President, Congress had to approve and ratify that selection.

    I got selected for my last promotion in October of one year, I had to wait until February of the next year for Congress to act on that promotion.

    You either are too dumb to understand this, or purposefully obtuse, neither reflects well on you.

  81. Anonymous says:

    I would think if person A comes to you and says, I’d like you to take my case, and you don’t simply say, no, but then go on to give legal advice as to why their case is bad and that they shouldn’t go forward, that you probably can’t reveal that discussion, but the line is fuzzy and I am not a PR expert so admittedly I could be wrong and it could be just fine.

    But it at least seems like something one should probably err on the side of caution and not do in my opinion.

  82. Christopher Mathews says:

    Ruling against an accused does not in itself create even a prima facie case of command influence. If they want the judge to recuse herself, LTC Lakin’s team would have to come up with more.

  83. yguy says:

    I am completely sanguine about the ability of the armed forces, regardless of who occupies the Oval Office.

    Including Ahmadinejad, or Putin, or whoever the top Chicom guy is, or any of their agents.

    Right?

    I’m curious, though, about your statement that the issue has “nothing to do [with] where” the President was born. Does that mean you agree that the birth certificate — long form or short — is irrelevant?

    No, it means a usurper doesn’t have to be foreign born.

  84. Corazon says:

    The only foundation of a free Constitution, is pure Virtue, and if this cannot be inspired into our People, in a great Measure, than they have it now. They may change their Rulers, and the forms of Government, but they will not obtain a lasting Liberty. John Adams, letter to Zabdiel Adams, June 21, 1776

    We should be unfaithful to ourselves if we should ever lose sight of the danger to our liberties if anything partial or extraneous should infect the purity of our free, fair, virtuous, and independent elections. John Adams, Inaugural Address, March 4, 1797

    Judges, therefore, should be always men of learning and experience in the laws, of exemplary morals, great patience, calmness, coolness, and attention. Their minds should not be distracted with jarring interests; they should not be dependent upon any man, or body of men. John Adams, Thoughts on Government, 1776

  85. ksf says:

    A CDC proposes that the accused “Plan B” a CDC. Quite brilliant, Bill, as it is still in the best interest of the client.

    If I were detailed, then I would be a thorn in the CDC’s side taking every opportunity to troubleshoot his advice in my client’s presence until the CDC advised his client to fire me. Of course, my OER might suffer a little, but at least I would have one less headache.

  86. ksf says:

    I don’t know. She ruled against requiring evidence that would make her boss disclose records. I think that CDC could ask her how she got detailed, who from the Pentagon has spoken to her about the case, how she feels pressured. It could be an interesting appellate issue. You don’t need a prima facie case for UCI. You merely need an appearance, then the burden shifts to the Government to disprove it BRD.

  87. Anonymous says:

    No, it means a usurper doesn’t have to be foreign born.

    True, Lakin was presumably born in the US and is attempting, quite unsuccessfully I might add, to usurp the role of Congress in determining who is eligible for President. So I ask you again, where in the Constitution is the military or any individual officer assigned any role in the determination of presidential eligibility? Where?

  88. Christopher Mathews says:

    Then if the President is a usurper regardless of where he was born, yguy, Judge Lind made the right call: evidence of his place of birth isn’t relevant.

    And yes, the ability of the military to perform a given mission is not dependent on the identity of the commander-in-chief. If the order is to bomb Iran, it makes no difference whether it’s President Obama giving the order or President McCain. It may be that one would give the order more quickly than the other, or under different circumstances, or not at all; but that’s a political question not determined by the military.

  89. Christopher Mathews says:

    I haven’t looked at the reporting chain for Army trial judges in a while, ksf, but I’d be very surprised if President Obama is her boss.

    If LTC Lakin’s lawyers want to voir dire the military judge, they’re entitled to make the effort. Perhaps they’ll find something beyond the adverse ruling on which to base a challenge. If that’s all they’ve got, though, I don’t see the challenge producing the result you described.

  90. Ama Goste says:

    yguy–The concept is known as civilian control of the military. Unlike other countries in which the military controls the political branches of government, our military is subordinated to the political branch. Hence, while it may be prudential for other branches to step in and determine the President’s eligibility, it is most certainly not the place of the military to do that.

  91. ksf says:

    Christopher, typically when you walk into any company, Battalion, Brigade, or Division Headquarters in the Army, you will see a bunch of pictures on the wall. These pictures are the Commanders, but then there are also pictures of those who in the chain of command, who are not military officers, such as the Secretary of the Army, Secretary of Defense, and the top guy is President Obama. He is the boss of each and every person in the military, aka “the Commander in Chief.” So, if the military judge is in the military, then her boss is the President, as well, and he has a say in what happens to her, perhaps not practically, but technically. Most people in the military would not want to be seen in a negative light by the Commander in Chief, unless of course, you have the chutzpah of Judge Pohl, who would not grant the Commander in Chief’s delay request at GTMO. Gotta love Judge Pohl and his correct and appropriate view on separation of powers.

    So, if the Commander in Chief, who is everybody in the military’s boss, does not want to turn over records, and in a court martial, a motion to compel those records is denied, there is an appearance to me that the military judge could fear reprisal from her and everybody in the military’s boss, the Commander in Chief.

    (End of smart a$$ rant) But, I agree this would be a guano crazy move, as well, although it would have more validity then saying he that he did not violate an order because the order was illegal.

  92. ksf says:

    I’m sorry Judge Mathews. I just clicked on the link and read your bio, and I thought you were the guy from Hardball. I know you don’t need an explanation on the chain of command.

    Actually, what kind of influence could the CINC have on a military judge? Are there steps in place to prevent UCI from the CINC or Secretary of Defense?

  93. Curious says:

    Yeah, I was wondering the same thing…somebody might have f’ed up!

  94. yguy says:

    Then if the President is a usurper regardless of where he was born, yguy,

    Never said that. Your original claim was regarding usurpers in general, not any particular person.

    And yes, the ability of the military to perform a given mission is not dependent on the identity of the commander-in-chief.

    To be sure. Similarly, a chainsaw normally operated by a logger will operate just as effectively in the hands of a bloodthirsty maniac. Nevertheless, human beings are not saw chains, pistons or carburetors; and under the Constitution, neither are they authorized to make themselves available for the purposes of one who commands by authority that is of dubious legitimacy.

  95. yguy says:

    Hence, while it may be prudential for other branches to step in and determine the President’s eligibility, it is most certainly not the place of the military to do that.

    And neither have I suggested they should.

  96. KyAtty says:

    Once again, the birther, who claims to revere the Constitution, reveals his ignorance of it. The person elected by the majority of the electors SHALL be the President. Obama was elected by the electors, he is the President, period. If you have evidence he’s not eligible, present it to Congress and they can remove him after an impeachment trial, but unless that happens he is the President until his term ends.

  97. Dew_Process says:

    Since this thread is already incendiary, let me toss some flammable material on it.

    The government has a right (and perhaps a duty) to ensure that the trial is not a circus. Thus, Trial Counsel and obviously the SJA should consider the language in Wheat v. US, 486 U.S. 153, 160 (1988):

    “Federal courts have an independent interest in ensuring that criminal trials are conducted within the ethical standards of the profession and that legal proceedings appear fair to all who observe them.”

    It is one thing for an experienced civilian criminal defense attorney to enter the venue of courts-martial practice. It’s quite another for a plaintiff’s personal injury attorney to jump into that forum. As SCOTUS went on to hold in Wheat, the government has an “institutional interest in the rendition of just verdicts in criminal cases….” Id.

    That is why (in part) that CAAF has upheld government disqualification of defense counsel motions, granted by military judges. See, e.g., US v. Rhoades, 65 MJ 393 (CAAF 2008); US v. Beckley, 55 MJ 15 (CAAF 2001).

    Current CDC either intellectually does not understand the law regarding “illegal orders,” or deliberately chooses to ignore it – neither of which is conducive to a fair trial (for both sides) and the inevitable IAC claims.

    Consider also the fate of poor CPT Rockwood, who upon the advice of “counsel” turned down an Article 15, in favor of a GCM, to litigate the “illegality” of certain portions of Operation Uphold Democracy in Haiti. There, as here, Rockwood’s CDC did his client no favors while pursuing an “agenda.” As the CAAF noted in denying that it was error for the MJ not to order the JTF Commander produced at trial:

    “Regarding MG Meade, civilian defense counsel explained that the defense want[ed] to talk to General Meade about his understanding of what the U.N. resolution required, what President Clinton’s instruction required as to command intent, what international law imposed upon him as a general officer to do in connection with human rights. How any order that sought to prohibit protection of human rights can be harmonized with international law and U.S. law, and what if anything he did at any time to protect human rights during the period.” US v. Rockwood, 52 MJ 98, 104 (CAAF 1999).

    CAAF also cogently observed: “The difference between a military organization and a mob is the role of command and control in channeling, directing, and restraining human behavior. … The overall missions and objectives are established by the civilian governmental supervisory structure and are implemented down the chain of command.” Id. at 107-8

    I don’t think that an accused can waive an obvious IAC claim, it simply is too fundamental of a structural right. So, challenge the CDC for cause, and let the chips of justice fall where they may.

    Just saying….

  98. Christopher Mathews says:

    It’s okay, ksf. I used to call folks on the Hill from time to time when I was in DC, and because of my name I never stayed on hold very long … if you take my drift.

    I’m not sure there could be any special protection against UCI by senior civilian leadership. In the end, you have to count on the trial judges to do the right thing on such issues, or the appellate courts to get it right if the trial judge errs. Saying that a military judge will abandon their impartiality simply because he or she worries about how their rulings might be received up the chain of command is tantamount to saying there can never be a fair trial in any case where the government cares about the outcome.

    In my experience, I think the accused will get a fair trial, in the sense that the judges will rule on the facts and the law as they see them, rather than any outside influence.

  99. Dwight Sullivan says:

    There’s on old legal maxim holding that “where all are disqualified, none are disqualified.” United States v. Allen, 31 M.J. 572, 601 (N.M.C.M.R. 1990) (quoting Turner v. American Bar Association, 407 F. Supp. 451, 483 (N.D. Ind. 1975), aff’d 542 F.2d 56 (8th Cir. 1976)). Under that principle, Judge Lind isn’t disqualified because the President is her Commander in Chief because if that were a basis for disqualification, it would disqualify every other military judge as well. (That said, even without resort to that maxim, I believe a causal challenge of a military judge on that basis would and should fail.)

  100. J Henderson says:

    Most likely the person above who appears to be an attorney “blabbing” on a client, is not actually an attorney, and is certainly not the person they represent themselves to be. That post could however be very damaging to an attorney of that name, if one actually exists. The post should be deleted.

  101. KyAtty says:

    Well then, I guess you think we should just abandon our current form of government if you actually think that the Electors would choose Ahmadinejad or Putin as President of the US. If you have evidence that the President is an agent of the Chinese government, by all means, turn it over to Congress so that they can initiate impeachment proceedings.

  102. Anonymous says:

    ALL of you lawyers should stand trial for treason when this is over and those “birfers” turn out to be right. Then what? You haven’t looked past your own noses to consider that, now have you?