Replies

"In the above statement, there are some interesting words included. Those words are "inferred" and "may". Using the rules of construction, and the rule of lenity, it is pretty clear that a defendant has the opportunity to establish that the order is not lawful."

Without question. And, it's also clear that it's entirely up to the trial judge to make that determination. What becomes problematic for Lakin is the identity of the issuing authority of his actual orders. It's not the President, it's either SecDEF or his Commanding General. From the perspective of the trial judge, the eligibility of the President (or lack thereof) is irrelevant.

Moreover, even if - and this is just purely for the sake of discussion - the trial judge looks past the irrelevancy of the President's eligibility, there's the additional hurdle of the de facto officer doctrine.

And of course, the relevant case law, much of it surrounding Presidential authority and the political question doctrine does not cut well for Lakin either. The courts have not been kind to this type of affirmative defense, and I doubt this case will break from that tradition.

The fact of the matter is a trial judge is NEVER going to grant discovery on the issue of Obama's eligibility, and any lawyer with a week's worth of military legal experience would know that. This is precisely why his 4856 did everything but beg him to seek the counsel of a military lawyer, which of course he was entitled to. He declined that advice, apparently.

With respect to your statement about his medical license, you might be right about finding a sympathetic state. But, the problem for Lakin will come from the DEA. Without a DEA number, which will be in peril due to the unavoidable show cause hearing for his felony conviction, will be tough to hold on to, at least for a few years. He might be able to regain on a probationary basis after some period of time.

An interesting aspect of this court martial is the fact that Lakin is a LTC(P). That would mean that the board with likely be composed of 0-6s and above. Not sure if it could also include any other LTC(P)s. If I was Lakin, I'd want all 0-6s who have no chance of making BG. What other potential members would be in a better, and safe position to say FUBO.

The court martial judge is also likely to be an 0-6 and there aren't many 0-7 JAG officers, so political pressure may not be much of a factor there.

If I was a betting man, I would bet Lakin is going to get convicted. Since the court martial board also determines the sentence, I think Lakin would have a chance with a very light sentence that may include only a small temporary reduction in pay, but not a reduction in rank. At that point, I think he will simply be permitted to retire or spend his last two years in a nothing position.