“Lakin’s motivation for not deploying become irrelevant and inadmissible at trial. It doesn’t matter why he missed movement, just that he did.”
Seems to me that “attenuating or mitigating” circumstances are always allowed in a defense. The panel of “line” officers may have a different view of things than a direct commissined JAG who only sees the letter of the law and not intent. LTC Latkin’s intent is relevant. I cannot imagine a panel of officers LTC or higher NOT wanting to hear about intent; even if they disagree with LTC Latkin. He would do best to maintain an innocent plea, I believe the issue will come up during the trial
Now that being said, the issue of President Obama’s status will not be brought up in the Article 32 hearing. As you have said, this simply exists to determine if the charges have any merit. From a strictly legal view, they do.
However, in a trial, motive does play. If this is suppressed, it wouldn’t be an impartial hearing. The UCMJ was not intended to be used as a club. The discipline of the military depends on the preception that the UCMJ is impartial and open to motives. The recent exoneration of the Navy Seals raised morale. IF more military personnel were aware of ALL the circumstances behind LTC Latkin’s order refusal....they would (except for die hard partisans or some minorities) want him to be allowed a full hearing with all evidence requested provided. Anything less is detrimental to good order and discipline.
IF the POTUS should stop stonewalling and produce the documents requested and there is nothing fuzzy in them, then LTC Latkin’s conviction would be seen as OK.
There are some mitigating circumstances that are addressed in the RCM speciic to missing movement. However, "The President is not really the president" isn't one of them.
"LTC Latkin’s intent is relevant"
No, it isn't. The military judge has existing case law to guide him here, See: US v Watada citing United States v. Huet-Vaughn. 43 M.J. 105, 114-115 (1995), which held in part...
"The accused’s motive not to deploy and his belief about the lawfulness of the Iraq war are not elements of the offense. Motive is, therefore, irrelevant on the merits"
"However, in a trial, motive does play. If this is suppressed, it wouldn’t be an impartial hearing."
See above. CAAF, in a number of cases has always disagreed.
Again, this is VERY elementary for lawyers familiar with military law. Lakin should have consulted competent military counsel before engaging in this behavior. In fact, he was formally advised by his command to seek military counsel prior to missing movement.