LTC Lakin writ sitrep

Here is a quote from an item on DMLHS’s Facebook wall.

Guess which of your favorite law firms just became "replacement counsel" on the Lakin case? Going to see what we can salvage.

Looks like LTC Lakin may have reached out to Neal Puckett, a real military law knowledgeable person.  Either that or Neal is playing a birthday joke on Dwight.

In another of the continuing allusions to Monty Python’s black knight, here is a link to “LTC Lakin’s Lawyer Left Legless after Legal lancing.”

APF states that the 28 September 2010 rulings are:

Another big legal setback for the Walter Reed doctor who refuses to deploy to Afghanistan until he sees President Obama’s original birth certificate. . . .

[T]hings aren’t going well for Lakin as his case heads toward trial on charges of missing a movement, disobeying lawful orders, and dereliction of duty.

True, but is it fair to say that there has ever been a time when things went well for LTC Lakin in the case or that a reasonable student of military law would have seen the lack of success to date, and in the future.  Unfortunately for LTC Lakin his claims were frivolous to begin with in the context of his orders to deploy, travel, and report.  LTC Lakin has made the profoundly flawed assumption that a political issue can be decided in a military court-room.

Courtesy of CAAFLog the brief accompanying the petition for a writ of mandamus is here.

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10 responses to “LTC Lakin writ sitrep”

  1. Thanks for the hat-tip to my article, Phil. Also thanks for keeping us up to date on this matter.

  2. challenger says:

    I know obfuscation is the name of the game with the Obama eligibility issue, but the issue that Lt. Col. Lakin needs decided by the court is not political. It is not the issue of whether Obama should or should not hold the office of President of the United States or Commander in Chief. Lt. Col Lakin is asking the court to provide a legal interpretation of Art 2, section 1, clause 5 against Obama’s qualifications for being President. There is nothing political about that question. Courts are the only ones tasked with providing finality to Constitutional language and courts address mixed questions of law and fact every day. That is their job. Congress can not finally decide what Art. 2, section1, clause 5 requires of a President. Our Constitution is not a document of political will but a legal document. If the court finds that Obama does not meet the legal dictates of Art 2 eligibility, it will then be up to Congress to decide what to do with him. That is the political question.

  3. BigGuy says:

    @challenger — “It is not the issue of whether Obama should or should not hold the office of President of the United States or Commander in Chief.”

    The essence of Lakin’s defense was the argument that he was not guilty as long as Obama was not legally eligible to be President. In order for the court to determine Lakin’s guilt or innocence under that theory, it would have had to render a judgment on whether Obama was eligible to hold office, and Judge Lind concluded that, under the political question doctrine, a court cannot render such a judgment concerning a sitting President.

    (And, while Lakin’s prior defense team did not release its submissions to the public, as far as we know they raised only the issue of whether the President was born in the United States. That is simply a question of fact.)

  4. challenger says:


    I appreciate your remarks. But, don’t you acknowledge the distinction between whether Obama LEGALLY satisfies the Constitutional requirement for office as apposed to the political question of whether he should remain in office. These are really two different questions. One is legal, the other is political. We know a court can not remove a President from office but it certainly can answer the Consitutional question presented in the case. Likewise, we know Congress can remove a President from office, but it is not qualified to legally interpret the meaning of Constitutional provisions. In order for a court to address the Consitutional issue, it needs a case controversy and standing, which it has in the Lakin case. A court does not render advisory opinions.

    On the CIC orders issue, the question is who makes the decision to go to war/conduct a major foreign engagement? No general or colonel who issued Lakin’s orders can make that initial decision . Deployment orders derive their authority from the need to carry out the initial decision by the President. If the initial decsion to go to war is invalid (made by someone not authorized to make it), how can the follow-on deployment orders be valid? Deployment orders are not issued in a vacuum.

  5. Dwight Sullivan says:

    challenger, LTC Lakin isn’t charged with not going to Afghanistan. He was ordered to meet with his brigade commander in Arlington, Virginia. He refused to do so. Interestingly, the brief in support of his mandamus petition admits that. The movement he missed was from BWI Airport to Charlotte, North Carolina. And he’s charged with failing to show up at Fort Campbell at the time he’d been ordered to. So a legal defense of LTC Lakin’s actions would require the conclusion that no member of the military has to do anything that he or she is ordered to do — a legal proposition that is facially absurd.

    Additionally, as a legal matter, Judge Lind is REQUIRED to treat President Obama’s orders as valid even if there were non-delusional doubts about President Obama’s eligibility. The Supreme Court has adopted what is called the de facto officer doctrine. Here’s how the Supreme Court has explained it:

    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. Norton v. Shelby County, 118 U.S. 425, 440, 6 S.Ct. 1121, 1124, 30 L.Ed. 178 (1886). “The de facto doctrine springs from the fear of the chaos that would result from multiple and repetitious suits challenging every action taken by every official whose claim to office could be open to question, and seeks to protect the public by insuring the orderly functioning of the government despite technical defects in title to office.” 63A Am.Jur.2d, Public Officers and Employees § 578, pp. 1080-1081 (1984) (footnote omitted).

    Ryder v. United States, 515 U.S. 177, 180-81 (1995). That situation is precisely applicable here. Judge Lind ruled that she didn’t have to reach the de facto officer doctrine because there were TWO other grounds on which she rejected LTC Lakin’s argument that he was entitled to discovery (first, that the President’s eligibility wasn’t a defense to LTC Lakin’s actions because the individuals who gave him orders had independent statutory authority to do so and second that the political question doctrine prevented the court from reaching the eligibility question). But if she had not ruled against LTC Lakin on one of those grounds, she would have been required to follow the Supreme Court’s case law regarding the de facto officer doctrine. And that case law would have REQUIRED her to treat all of the President’s actions as springing from an eligible source.

    Under the doctrine of stare decisis, inferior courts are required to follow superior courts’ precedent. So she had to follow CAAF’s opinion in New — as does the Army Court of Criminal Appeals. Only CAAF or the Supreme Court can overturn New. And Judge Lind, ACCA, and CAAF are all required to follow the de facto officer doctrine — only the Supreme Court can overturn it.

  6. challenger says:


    With regard to your first comment, the question really is whether the orders were in furtherance of the decision to depoly Lt. Col. Lakin. If they were, they flow from the President’s decision and can not derive any more authority than possessed by the principle order. With regard to the defacto officer rule, I hope you are not arguing that all orders must be blindly obeyed without any individual determination of their legality. The defacto officer rule doesn’t shield the court from conducting an inquiry into the matter if the individual military person has placed himself in jeopardy to challenge the order. The rule basically says that you violate an order at your own peril. For the court to also hide behind the presumption of legality is ludicrous. If this were the case, the underlying legality of an order could never be determined.

    Now, with regard to the two points cited by Judge Lind in support of her opinion. First, an officer’s authority to issue orders is a different question than whether the issued order is lawful. We know officers have authority to issue orders, but the orders they issue must also be lawful. Now, if the orders in question were issued to carry out the President’s directive and the President had no authority to issue the directive (illegal order) a subordinate officer’s order given in furtherance of that illegal order does not suddenly cause it to become lawful. As I previously indicated, on the political issue argument, the court’s task is not political. It is singularly to decide whether the CIC was Constitutionally qualified to issue the order giving rise to the subordinate’s orders to Lt. Col. Lakin. Quite frankly, it strikes me as odd that the military does not appear concerned that the court martial they are conducting on Lt. Col. Lakin may not even be legally constituted since it is in furtherance of enforcing the President’s directives? I sure hope that the internal organs of the military have conducted their own independent inquiry into the legality of the CIC at this point because not to have done so could have serious implications. Ignorance or willful blindness in such matters will not be a legitimate defense.

  7. Dwight Sullivan says:

    challenger, as to the first point, the Army has the authority to order Soldiers about. LTC Lakin’s brigade commander had the authority to tell LTC Lakin to appear in his office in Arlington, Virginia. That authority didn’t depend on the authority of the President; it rested in him as LTC Lakin’s commander. In court filings, LTC Lakin’s apparently former defense counsel admitted that LTC Lakin received such an order and disobeyed it. And as Judge Lind’s decision amply demonstrated with citations to relevant legal authority, the Army had the authority to order LTC Lakin to fly from BWI to Charlotte, North Carolina and show up at Fort Campbell. He failed to comply with those orders.

    The de facto officer doctrine isn’t concerned with the SUBSTANCE of an order; it deals with the authority of the person issuing the order. So an order to shoot an unarmed non-combatant is an illegal order regardless of whether the person who issues it has legal authority to issue an order. The de facto officer doctrine wouldn’t require a subordinate to comply with that order. Rather, a subordinate would be required to disobey that order. But driving to Arlington, Virginia, flying to Charlotte, North Carolina, and reporting to Fort Campbell aren’t illegal acts, so the concept of unlawful orders isn’t applicable here. What the de facto officer doctrine does is recognize the legal authority of an office holder and the validity of that office holder’s acts even if it turns out later that the office holder wasn’t properly in office. Now Judge Lind correctly determined that the de facto officer doctrine wasn’t necessary to invoke in the Lakin case because he didn’t receive any orders from the President and the orders he did receive had legal validity regardless of the President’s constitutional eligibility. But even if the President had personally issued some order to LTC Lakin, under the de facto officer doctrine, it wouldn’t have been a legal defense for LTC Lakin to challenge the president’s constitutional eligibility because the de facto officer doctrine would have given legal effect to the order that was issued even if it turned out that the President wasn’t constitutionally eligible. And, again, a lower court (like a court-martial) doesn’t have the authority to decide whether or not to apply the de facto officer doctrine. Rather, a lower court is obliged to follow the Supreme Court’s precedent.

  8. challenger says:

    I am just going to say this and close. In my humble opinion, the courts are as much of a coward on this issue as Congress. You can parse your legal arguments all you want, but we all know that the orders given to Lt. Col. Lakin were given to carry out Presidental directives in this instance.

    With regard to the defacto officer doctrine, it is my humble opinion that the courts are again looking for a way to hide from addressing the Constitutional issue. As ACJ Clarence Thomas said laughingly before a recent Congressional committte hearing, we (courts) are avoiding the issue of the President’s eligibility and, I would add, their oath of office as well. The defacto officer doctrine can not stand for the purpose of furthering the fraudulent objectives of an illigal office holder. We are not talking about some “technical” oversight here. If Obama is doing what a lot of people in this Country believe he is doing, it is one of the most serious ongoing frauds ever committed upon the American people. Apparently, Lt. Col. Lakin’s court is willing to twist and contort legal principles to allow this fraudulent activity to continue. It is apparent to all that a court needs to interpret the Constitution in this case but no court up to this point has been responsible enough to do so. Congress, the civilian courts, and now the military continue to violate their oaths to preserve and protect the Consitution by throwing up strawmen to avoid doing their job. All should have enough personal conviction because of their oaths to raise the issue on thier own accord. Instead, they are now willing to try, sentence, and confine an officer, who in good faith is only trying to be faithful to his oath. In this case, the court is even preventing the criminal defendant from presenting his defense on the issue. Arrogantly, taking over the defendant’s case and prejudging the matter by insisting the defendant come up with another defense. As one of the millions of citizens in this country who are carefully watching this charade unfold, I find it to be truly heartbreaking. All we desire is a legitimate legal opinion, one way or the other on the matter, and no governmental official is responsible enough to provide it.

  9. Dwight Sullivan says:

    challenger, it was LTC Lakin (with the active involvement of his then-attorney Paul Rolf Jensen) who decided to take his campaign into the military courts. And when you take your campaign into the military courts, you play by the military court’s rules. So LTC Lakin’s supporters complaining that well-established military justice rules are being applied in the Lakin case would be like the Milwaukee Brewers choosing to go from the American League to the National League and then complaining that they can’t use a designated hitter. LTC Lakin specifically CHOSE to try to advance his goals through the military justice system. Son neither he nor his supporters should be heard to complain that he is now subject to its rules.

    The de facto officer doctrine is well established in military law. So is the rule that the military judge determines the lawfulness of an order. Anyone contemplating taking this challenge into the military justice system should have been aware of those rules before choosing to invite his own court-martial. Now I don’t particularly like the well-established rule that the lawfulness of an order is determined by the military judge rather than the members. But CAAF has established that rule. Judge Lind had no choice but to apply it. And it would have taken just a few minutes of research to determine that that is the rule in courts-martial. So Team Lakin-Jensen knew or should have known of that rule. Nor is there any question that under military law, the correct legal conclusion is that the orders LTC Lakin is charged with violating are lawful.

    So LTC Lakin’s trial isn’t a charade. It’s an orderly procedure that is playing out in a perfectly predictable fashion because the system is following its own pre-established rules–pre-established rules to which LTC Lakin chose to subject himself.

    The dual purposes of the military justice system are to provide justice to individual servicemembers while protecting good order and discipline in the U.S. military. Team Lakin-Jensen tried to hijack the system to serve a purpose for which it wasn’t designed. It’s entirely predictable and entirely proper that their attempt failed.

  10. BigGuy says:

    @challenger — “If Obama is doing what a lot of people in this Country believe he is doing, it is one of the most serious ongoing frauds ever committed upon the American people.”

    If the issue is the President’s purported fraud, what’s the point of having LTC Lakin be the defendant? He committed crimes to which he has admitted, and for which he has offered no legal defense. If he thought that would be a way to put the President on trial, he was sorely mistaken. As Dwight has explained, the UCMJ is not a vehicle for an end run like that.

    But fraud is a very serious crime. If you wish to make the point that there is evidence of fraud on the part of the President, why go about it in such an indirect and legally inappropriate way? Why not show your evidence to a state or federal prosecutor? It may well be that a sitting President can’t be indicted, but if even a single real prosecutor claimed to have enough evidence to justify trying to do it, it would make enough noise to give the movement some real momentum. And it can’t be that all the prosecutors in the country are Obama supporters.

    Similarly in the Congress. There is certainly no reluctance on the part of certain representatives to criticize the President very severely. Since the House of Representatives has the sole power to impeach, the way to start would be to have even a single member speak up about having evidence of eligibility fraud. Nothing could possibly bring greater glory among Obama opponents — it’s the political opportunity of a lifetime.

    The fact that the chosen strategy is a back-door effort to raise charges against the President by means of a court-martial of a disobedient officer suggests that there isn’t enough evidence to persuade a single person who’s really in the position to raise such charges to do so.

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