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.