In this case, the government has to prove the order was lawful. If the defendant claims that the order is unlawful because Obama is not constitutionally eligible to hold the office of President, then the government must produce the evidence that he is constitutionally qualified. The real fear should be that the judge just might take judicial notice that Obama is the legitimate President.”
I'm sorry, but that just isn't true at all.
The Manual of Courts Martial clearly states: “An order requiring the performance of a military duty or act may be inferred to be lawful and it is disobeyed at the peril of the subordinate.” A defendant claiming an order is unlawful doesn't in and of itself require the prosecution to prove anything, particularly when the order in question requires no specific action on the part of the defendant that can reasonably be construed as illegal. The orders in question are simply going to be accepted by the judge as legal, yielding an inevitable conclusion.
First, let me state that I fear that this is not going to end well for Lakin.
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.
Note that the words "are" and "will be" are not included. As you certainly know - while others may not - words are to be given their legal meaning (or ordinary meaning when there is no specific legal meaning) and words may not be read either into or out of the passage.
The very real problem for Lakin is being afforded the opportunity to prove the orders are unlawful simply because Obama is not a legitimate President. I don't think he will be allowed to do so; and will thus be convicted unless his defense team can somehow create so much publicity about this case that the members of the court martail board will feel safe enough to essentially engage in jury nullification.
If the judge rules that Obama's legitimacy as President is not relevant, that would also create some media attention. A military judge might not want to say that he doesn't care if Obama in constitutionally qualified.
As much as I wish Lakin well and believe he is earnestly trying to do the right thing for the nation, I am not holding out much hope that he will prevail.
For those who think he will lose his license to practice medicine, I am quite confident that there are a number of states that would readily permit him to practice his profession.