The official Lakinista website is now displaying this message:  “We have now filed our Petition for a Writ of Mandamus in the Army Court of Criminal Appeals, all eyes turned there which has become Lakin’s only hope.”  If so, then LTC Lakin should surrender all hope now.

The Courts of Criminal Appeals deny almost every petition for extraordinary relief that comes through their doors.  This one will be no exception.

The Lakin petition for extraordinary relief is scattershot.  It raises a number of issues, but never acknowledges, much less tackles, the burden on the petitioner for obtaining mandamus relief.  We’ve previously noted:

As CMA has explained, “The writ of mandamus is a drastic instrument which should be invoked only in truly extraordinary situations.”  United States v. Labella, 15 M.J. 228. 229 (C.M.A. 1983) (per curiam).  “An appellate court reviews a military judge’s decision on a request for discovery for abuse of discretion.”  United States v. Morris, 52 M.J. 193, 198 (C.A.A.F. 1999).  “To justify reversal of a discretionary decision by mandamus, the judicial decision must amount to more than even ‘gross error’; it must amount ‘to a judicial “usurpation of power,”‘ . . . or be ’characteristic of an erroneous practice which is likely to recur.”  Labella, 15 M.J. at 229 (quoting United States v. DiStefano, 464 F.2d 845, 850 (2d Cir. 1972) and Daiflon, Inc. v. Bohanon, 612 F.2d 1249, 1257 (1oth Cir. 1979), rev’d, 449 U.S. 33 (1980)). 

Nothing in the Lakin brief in support comes within two timezones of meeting that standard. 

The argument section of the brief in support begins with:  “The petition presents an important question of first impression:  is an order illegal if there is a break in the chain of command due to the constitutional ineligibility of the President to serve in office.”  As a legal matter, that doesn’t seem right.  That issue isn’t one of first impression.  Rather, it’s answered in the negative by the Supremes’ de facto officer doctrine line of cases.  See, e.g., Ryder v. United States, 515 U.S. 177, 180-81 (1995) (“The de facto officer doctrine confers validity upon acts performed by a person acting under the color of official title even though it is later discovered that the legality of that person’s appointment or election to office is deficient.”). 

The brief in support leaps from that claim to an attack on the military justice system’s assignment of subpoena power to the prosecutor as violative of Article 46, the Fifth Amendment, and the Sixth Amendment.  That claim, which is certainly far from indisputable (and thus inappropriate for mandamus relief), is irrelevant if the people and documents sought to be subpoenaed aren’t relevant. 

There’s actually a very funny part of the brief.  In a footnote, Mr. Jensen writes that “the general proposition of [CAAF’s United States v. New decision’s] discussion of [the political question doctrine] is questionable.”  He then cites the following passage from the D.C. Circuit’s opinion in United States ex rel. New v. Rumsfeld, 448 F.3d 403 (D.C. Cir. 2006):  “Thus we find no defect in [CAAF’s] application of the political question doctrine, even though that application might be highly contestable in another context.  Compare Campbell v. Clinton, 203 F.3d 19, 24-28 (D.C.Cir.2000) (Silberman, J., concurring) (finding that no ‘judicially discoverable and manageable standards’ exist for application of the Constitution’s war powers clause or the War Powers Resolution, 50 U.S.C. § 1541 et seq.), with id. at 37-41 (Tatel, J., concurring) (concluding that such standards do exist).”  448 F.3d at 411.  There are two problems with this argument.  First, due to stare decisis, ACCA isn’t allowed to disregard CAAF’s opinions whether it likes them or not.  (Just see NMCCA’s recent McMurrin opinion for a demonstration of that principle.)  So suggesting to ACCA that it shouldn’t follow a CAAF opinion is like suggesting to a recruit that he should’t do what his drill instructor says.  And now for the humor.  There’s a sentence that comes right after the quoted portion of the D.C. Circuit’s New opinion that Mr. Jensen didn’t include in his brief.  It’s the final sentence in the New opinion before the decretal paragraph.  And it shows why the D.C. Circuit’s New opinion would provide LTC Lakin with no solace even if ACCA were allowed to disregard CAAF’s New opinion:  “Given the threat to military discipline, see Court-Martial Transcript at 433, we have no difficulty accepting the military courts’ reliance on the doctrine.”  448 F.3d at 411.  

ACCA now has two options:  (1) deny the petition without bothering to have the government respond; or (2) issue a show cause order under which GAD would file a brief and then LTC Lakin’s counsel could file a reply brief before ACCA denies the petition.  I’m not familiar enough with ACCA’s practice to know whether issuing a show cause order is routine.  Unless it does so almost automatically, I would suspect that ACCA will summarily deny the petition without explanation and without issuing a show cause order.  Army Lurker, you out there?  Can you enlighten us on ACCA’s practice in handling petitions for extraordinary relief?

But whichever route ACCA takes, “Lakin’s only hope” will soon be extinguished.

8 Responses to “Some thoughts about the Lakin mandamus petition”

  1. Snuffy says:

    Issuance of a show cause order is not routine practice. Unless the petition has real merit (HA!)ACCA normally issues a summary denial pretty quickly.

  2. Bill C says:

    Agreed. Unless the Court wants to play pinata with Mr. Jensen, this won’t see the light of day and will be denied very quickly.

  3. BigGuy says:

    Whatever ACCA decides, will the decision be made public or do we have to wait for someone to volunteer the information?

  4. Socrates says:

    When was the last successful extraordinary writ in the military justice system?

  5. Anonymous says:

    I think it was Goldsmith v. Clinton, just before it became Clinton v. Goldsmith.

  6. Dew_Process says:

    You will get a clue as to how ACCA is leaning if they issue an Order for the Record to be forwarded to them. But, that only means someone thinks that there might be a meritorious issue — certainly not that they’ll ever grant a pretrial Writ on a discovery issue.

  7. Uncommonsense says:

    Um is that not the only issue before them on a Petition for Writ of Mandamus?

  8. SueDB says:

    As Vince Treacy put it so eloquently on


    Note the date…

    2. Vince Treacy – April 8, 2010

    This is what I posted at the Turley blog. The folks at American Thinker refused to post it as a comment to Lakins article:
    So here is the posting the American Thinker did not want you to read:

    The good doctor is oblivious to the federal legal definition of “birth certificate,” set forth in Title V of the United States Code that he never mentions.

    He seems unaware that the definition has been codified as a note following Title 5, United States Code, section 301 (5 U.S.C. 301 nt.):

    The definition reads:
    “(3) Birth certificate. – As used in this subsection, the term
    `birth certificate’ means a certificate of birth–
    “(A) of–
    “(i) an individual born in the United States; or
    “(ii) an individual born abroad–
    “(I) who is a citizen or national of the United States at
    birth; and
    “(II) whose birth is registered in the United States; and
    “(B) that–
    “(i) is a copy, issued by a State or local authorized
    custodian of record, of an original certificate of birth
    issued by such custodian of record; or
    “(ii) was issued by a State or local authorized
    custodian of record and was produced from birth records
    maintained by such custodian of record.

    Under this definition, the COLB is a “birth certificate.” It is a “certificate of birth” issued to “an individual born in the United States” who is a “citizen or national of the United States at birth” and whose “birth is registered in the United States,” and that certificate “was issued by a State or local authorized custodian of record and was produced from birth records maintained by such custodian of record.”

    He appears to be unaware that the Hawaiian Home Lands office only wanted original birth certificates to verify Hawaiian ancestry, and accepts the COLB for all purposes.

    He seems unaware that the computer generated COLB is the only certificate that Hawaii now issues, and IS the official Hawaiian birth certificate, since Hawaii no longer issues the old forms to anyone.

    He seems unaware that the Hawaiian official who is legally responsible for the accuracy and security of all birth records has stated that she has seen the original records, that they show Obama was born in Hawaii, and the he is a natural born citizen.

    He seems unaware that official Hawaiian public records of birth are entitled to full faith and credit under the Constitution.

    He seems unaware that Hawaiian law restricts the release of birth records.

    He seems unaware that the supposed Kenyan birth certificates were proven forgeries uttered by convicted forgers.

    He seems unaware that Obama’s grandmother never said he was born in Kenya, and that the false reports were based on mistranslation.

    He seems unaware that his comparisons of himself to the situations at Nuremberg, My Lai and Abu Ghraib are absurd.

    He seems unaware that the lawyer listed on his website, John Hemenway, has been reprimanded by the U.S. District Court for the District of Columbia for bringing a frivolous claim in a birther lawsuit, and that the reprimand was upheld on appeal the U.S. Court of Appeals. Hollister v. Soetero, D.D.C., 2009, D.C. Cir, 2010.

    He seems unaware that the media reports giving the names of two hospitals were clearly mistaken, that both hospitals in Honolulu were named for former Queens, that the confusion is common, and that Obama has consistently named Kapiolani Hospital as the place of birth.

    He claims that “No one I spoke to was able to offer any evidence that the president is ‘natural born,’ seemingly unaware that there is abundant credible evidence, beginning with the official COLB and the statements of Hawaiian official, for the birth.

    The seems not to know that an official COLB expressly provides that it is prima facie evidence of birth in Hawaii.

    He seems unaware that to state that there is “no evidence” of Obama’s natural born status is an outright lie, or a statement in reckless disregard of truth or falsity. There is evidence, and the evidence is credible and reasonable. He just chooses to ignore it. He can say that there is no evidence that satisfies him, but he cannot say that there is “no evidence.”

    He seems unaware that there is no reasonable doubt about Obama’s natural born citizen status.

    He seems unaware that there is only the unreasonable, irrational and invidious doubts of the birthers.

    This was 6 months ago…What a guy!